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The annotations in Georgia’s Official Code are ineligible for copyright protection. A careful examination of the United States Supreme Court’s government edicts precedents reveals a straightforward rule based on the identity of the author. Under the government edicts doctrine, judges and legislators may not be considered the “authors” of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law. It applies to the annotations because they are authored by an arm of the Legislature in the course of its official duties.
The annotations in the current official code of the State of Georgia, the Official Code of Georgia Annotated (OCGA), were produced by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. The agreement stated that any copyright in the OCGA vested in the State of Georgia, acting through the Commission. Respondent Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records and legal materials, posted the OCGA online and distributed copies to various organizations and Georgia officials. After sending PRO several cease-and-desist letters, the Commission sued PRO for infringing its copyright in the OCGA annotations. PRO counterclaimed, seeking a declaratory judgment that the entire OCGA, including the annotations, fell in the public domain. The District Court ruled in favor of the Commission, holding that the annotations were eligible for copyright protection because they had not been enacted into law. The Eleventh Circuit reversed, rejecting the Commission's copyright assertion under the government edicts doctrine. The PRO challenged the decision.
Were the OCGA annotations eligible for copyright protection?
The Supreme Court held that the Copyright Act’s protection for “original works of authorship” did not extend to the annotations contained in Georgia’s official annotated code. The Court held that under the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of - and therefore cannot copyright - the works they created in the course of their official duties. The Court has previously applied the doctrine to hold that non-binding, explanatory legal materials were not copyrightable when created by judges who have the authority to make and interpret the law. The Court held that the same logic applied to non-binding, explanatory legal materials created by a legislative body. Because Georgia’s annotations were authored by an arm of the Legislature in the course of its legislative duties, the government edicts doctrine would put them outside the reach of copyright protection.