Case No. 18-1150 | 11th Cir.
Preview by Amy Orlov
This case concerns the application of the government edicts doctrine to the Official Code of Georgia Annotated. The government edicts doctrine holds that government proclamations, such as judicial decisions and legislative enactments, are not protected under U.S. copyright law. As a consequence, these writings will not be accepted nor processed for copyright registration. This doctrine derives from the public policy notion that citizens should have unrestrained access to the laws that govern them.
The Official Code of Georgia Annotated is a compilation of Georgia’s statutes, accompanied by various annotations, consisting of “history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.” Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229, 1233 (11th Cir. 2018). While the annotations are a part of the official code, they do not themselves hold the force of law. The annotations are prepared through a partnership between a private publishing company and the State of Georgia through the Code Revision Commission, a body of Georgia elected officials and members of the State Bar of Georgia.
In 2015, the State of Georgia brought a copyright infringement lawsuit against the website Public.Resource.Org for republishing 186 volumes of the Official Code of Georgia Annotated on its website, which could then be viewed by the public for free. The district court ruled for Georgia and the Commission, finding that because the annotations lack the force of law, they can be copyrighted. Thus, the district court held that Public.Resource.Org’s actions constituted infringement. On appeal, the Eleventh Circuit reversed, holding that all of the Official Code of Georgia, including the annotations, constituted public domain material because the annotations “represent a direct exercise of sovereign authority” and are “attributable to the constructive authorship of the People.” Id. at 1254, 1255.
The question on appeal to the Supreme Court is “[w]hether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.” Petition for a Writ of Certiorari at I, Georgia v. Public.Resource.Org, Inc., No. 18-1150 (U.S. filed Mar. 1, 2019). This will be the first time that the Supreme Court considers the government edicts doctrine in more than a century. Georgia argues that protecting the annotations as copyright material is necessary in order to incentivize third-party publishing companies to assist in both producing annotations and distributing the official code. Public.Resource.Org argues that the annotations should not be copyrighted in order to allow the public greater access to the law without having to pay fees.
The Supreme Court’s decision could have broader implications as there are currently several other states that hold copyrights for annotations in their general codes. If the Court rules in favor of Public.Resoure.Org, those copyrights could be at risk of invalidation.