Overnight the USSC handed down its decision on a case we posted about late last year (see here) with five Justices finding that copyright protection does not extend to annotations in GA’s official annotated code, on the basis that legislators (like judges) are not the “authors” of works produced in the course of official duties.
The Court relied on a government edicts doctrine traced back to a trio of 19th century cases, commencing with the USSC’s first copyright case in 1834. In that case a reporter of the Court’s decision sought to enforce copyright against another court reporter. The Court unanimously held that “no reporter has or can have any copyright in the written opinions delivered by this court” and that “the judges thereof cannot confer on any reporter any such right”, a conclusion which apparently seemed too obvious to adorn with further explanation. 50 years later the Court affirmed that decision holding that “judges could not assert copyright in “whatever work they perform in their capacity as judges”.
The majority considered that these cases establish a straightforward rule.
Because judges are vested with the authority to make and interpret the law, they cannot be the “author” of the works they prepare “in the discharge of their judicial duties.” This rule applies both to binding works (such as opinions) and to non-binding works (such as headnotes and syllabi). It does not apply, however, to works created by government officials (or private parties) who lack the authority to make or interpret the law, such as court reporters.
The majority found the animating principle behind the rule to be that “no one can own the law”.
It further found that “[i]f judges, acting as judges, cannot be “authors” because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.”
Much of this case turned on the nature of the alleged protected work as annotations to the legislation rather than the legislation itself, with arguments made that the government edicts doctrine should only apply where the work has the “force of law”.
However the majority noted that that would operate to exclude dissenting judgments and also that the doctrine has long applied to judges’ headnotes.
“These non-binding works are not copyrightable because of who creates them—judges acting in their judicial capacity.”
The Majority also made the following observation
“Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads the economy-class version of the Georgia Code available online, he will see laws requiring political candidates to pay hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct, and exempting certain key evidence in criminal trials from standard evidentiary limitations—with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court. Meanwhile, first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal. If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. A State could monetize its entire suite of legislative history. With today’s digital tools, States might even launch a subscription or pay-per-law service.”
Justice Thomas dissenting, recognised that the government edicts doctrine applied to judges. However, His Honour noted that the Court had not considered that doctrine for over 130 years, and as such was reluctant to readily extend it to annotations which “do not even purport to embody the will of the people because they are not law”.
The majority … suggest that without access to the annotations, readers of Georgia law will be unable to fully understand the true meaning of Georgia’s statutory provisions, such as provisions that have been undermined or nullified by court decisions. That is simply incorrect. As the majority tacitly concedes, a person seeking information about changes in Georgia statutory law can find that information by consulting the original source for the change in the law’s status—the court decisions themselves. The inability to access the OCGA merely deprives a researcher of one specific tool, not to the underlying factual or legal information summarized in that tool.
Perhaps, to the detriment of all, many States will stop producing annotated codes altogether. Were that to occur, the majority’s fear of an “economy-class” version of the law will truly become a reality. See ante, at 17. As Georgia explains, its contract enables the OCGA to be sold at a fraction of the cost of competing annotated codes. For example, Georgia asserts that Lexis sold the OCGA for $404 in 2016, while West Publishing’s competing annotated code sold for $2,570. Should state annotated codes disappear, those without the means to pay the competitor’s significantly higher price tag will have a valuable research tool taken away from them.
Justice Ginsburg, joined by Justice Breyer, also dissented.
Beyond doubt, state laws are not copyrightable. Nor are other materials created by state legislators in the course of performing their lawmaking responsibilities, e.g., legislative committee reports, floor statements, unenacted bills. Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine shields only “works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” (emphasis added). The core question this case presents, as I see it: Are the annotations in the OCGA done in a legislative capacity? The answer, I am persuaded, should be no.
First, the annotations are not created contemporaneously with the statutes to which they pertain; instead, the annotations comment on statutes already enacted.
Second, the OCGA annotations are descriptive rather than prescriptive.
Third, and of prime importance, the OCGA annotations are “given for the purpose of convenient reference” by the public; they aim to inform the citizenry at large, they do not address, particularly, those seated in legislative chambers.