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Supreme Court Rules Code Annotations Not Copyrightable

A divided Court concludes government edicts doctrine dictates annotations are not eligible for copyright protection

In January of this year, we reported on arguments in the case of Georgia v. Public.Resource.Org. Today, the Supreme Court published its Opinion, holding "that the annotations in Georgia's Official Code are ineligible for copyright protection . . . ."

Looking to precedent, the Court articulated a two-step determination that, "copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties."

Regarding the first step of the determination, the Court notes that Georgia's annotations (the "Annotations") are created by a private company, Lexis, pursuant to a work-for-hire agreement with Georgia's Code Revision Commission (the "Commission"). Therefore, pursuant to 17 U.S.C. § 201(b), the Commission is deemed the author of the Annotations. The Court notes that although the Commission is not the Georgia Legislature, it is an arm of the Legislature. The Court supports this argument by, among other things, citing the Georgia Constitution in noting that the Commission, "is within the sphere of legislative authority." The Court concludes that, "[a]ll of this shows that the Commission serves as an extension of the Georgia Legislature in preparing and publishing the [A]nnotations."

As for the second step of the determination, the Court determines the Commission creates "the [A]nnotations in the 'discharge' of its legislative 'duties.'" The Court analogizes "annotations published by legislators alongside the statutory text" with "the 'statement of the case and the syllabus or head note' prepared by judges[,]" asserting that both "fall within the government edicts doctrine and are not copyrightable."

The Court acknowledged and addressed Georgia's arguments, including Georgia's policy argument. The Court noted that policy appeals are appropriately directed to the legislative branch, not the judicial branch. It stated that the Court is required to "adherence to precedent when, as here, we have construed the statutory text and 'tossed [the ball] into Congress’s court, for acceptance or not as that branch elects.'"