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Copyright Blog

What Constitutes the Law, and What are the Boundaries of Copyrightability of the Law?

The Supreme Court will rule on the copyrightability of annotations to Georgia's state code.

On December 2, 2019, the Supreme Court of the United States ("SCOTUS") heard oral arguments in Georgia v. Public.Resource.Org regarding the copyrightability of annotations to the state code.

The case initiated on July 21, 2015, when the Georgia Code Revision Commission, acting on behalf of the General Assembly and State of Georgia (jointly "Georgia"), filed a complaint against Public.Resource.Org, Inc. (“PRO”).

In the complaint, Georgia alleges direct and indirect copyright infringement by PRO through copying and distributing copyrighted annotations in the Official Code of Georgia Annotated (“OCGA”). The OCGA is a work created by the State of Georgia which, in addition to the text of laws enacted by the state legislature, includes judicial decision summaries, editor’s notes, research references, notes on law review articles, summaries of the opinions of the Attorney General of Georgia, and commentaries (the "Annotations"). Georgia hires a third party company to create the Annotations as works made for hire, and Georgia claims copyright ownership in the Annotations.

In 2013, PRO allegedly purchased all 186 volumes of the OCGA, including the Annotations, and then digitized and uploaded it to various websites, making it freely available to the public. The Northern District Court of Georgia issued a permanent injunction against PRO, concluding that the Annotations lacked the force of law, and were therefore not public domain works. The district court also rejected PRO's fair use defense.

On appeal, the Eleventh Circuit reversed and held that the Annotations "are inherently public domain material and therefore uncopyrightable." It concluded that the Annotations represent a direct exercise of sovereign power, and are therefore attributable to the constructive authorship of the People.

Georgia filed a petition for a writ of certiorari on March 1, 2019, presenting the question “whether the government edicts doctrine extends to—and thus renders copyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.”

Attorneys General of Alabama, Idaho, Kansas, Mississippi, South Carolina, and Tennessee submitted an amicus brief in support of Georgia stating that the Eleventh Circuit’s decision, "if adopted by other circuits, would threaten the continued production of official annotated state codes.” Institutions such as R Street Institute and C-SPAN submitted an amicus brief in support of PRO arguing that “a state’s use of copyright law to prevent its citizens from distributing certain government works affects fundamental rights under the Constitution . . ." and potentially "denies citizens the ability to access information of critical importance."

As previously noted, the case was argued before SCOTUS in December. The Court's ruling is expected to be issued soon. We will provide updates as they become available.