28 April 2020CopyrightRory O'Neill

Georgia ruling leaves states and contractors in an awkward position

State bodies and legislators cannot own the copyright to any works produced in the course of their official duties as lawmakers, the US Supreme Court has ruled.

The  5-4 decision could force up to 25 states to rethink how they produce their official annotated state codes, as these are now in the public domain.

In particular, the decision comes as a blow to the state of Georgia, which sued a non-profit in 2013 for posting its annotated laws online.

The state contracted LexisNexis to produce the annotations and exclusively licensed the copyright to the private research company in exchange for a royalty on sales.

In response,  Public argued that the annotated codes were in the public domain under the ‘government edicts’ doctrine. That rule holds that judges cannot own the copyright on non-binding explanatory material they produce in the course of their work.

Public Resource said the law should be no different for states producing annotations to their legal codes.

That was the view of the  US Court of Appeals for the Eleventh Circuit, which ruled in favour of Public Resource in 2018, which said that because the annotations were produced as part of the “legislative process”, they must be in the public domain.

The Supreme Court has now affirmed that judgment on appeal, albeit by a tight margin.

Who is the author?

Writing for the majority, Chief Justice John Roberts said the entire case, and the government edicts issue in general, boiled down to whether the author of the works in question was a judge or legislator.

“If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable,” Roberts wrote.

Because LexisNexis was contracted to produce the annotations, it was akin to a work-for-hire, the ultimate author of the works being the state of Georgia.

The decision is likely to undermine the system that half of all US states use to create commentary and annotations on their legal codes, said Brett Heavner, partner at  Finnegan.

But, Heavner said, the majority’s decision still leaves open several possibilities for states to claim copyright on their annotated codes—if, for example, states have a different arrangement with the private firms preparing the commentary.

“That arrangement would need to mirror more closely the facts that allow private reporters to retain copyright in their commentary and annotation on judicial decisions,” he said.

“There is also a question of legislative control—if the legislature did not exercise such strict control over the creation of the commentary, would there be an opportunity for the commentary to be protected by copyright?” Heavner added, commenting that not all of these issues had been fully resolved by the Supreme Court.

States ‘need to revisit’ deals

Judy Jennison, partner at  Perkins Coie, said that the “25 or so” states who hire third parties to produce official annotations may have to revisit the deals with those companies.

“Third-party reporting services may refuse to create annotations for the states if others will be permitted to copy the annotations without restriction,” Jennison said.

Ultimately, Jennison said, the notion that a state government's official statement of the law was “only available for a price seems antithetical to notions of free access to justice”.

But the issue remains divisive. Four of the Supreme Court justices said that, by the letter of the Copyright Act, protection should be extended to the annotated codes, and that ultimately, it was up to Congress, rather than judges, to divert from that course.

According to Justice Ruth Bader Ginsburg, the annotations were not produced in a “legislative capacity” and merely comment on laws that have already been enacted.

Catherine Miller, of counsel at  Holland & Hart, said the majority’s decision was a “stretch”, commenting that there was a “clear public benefit to allowing organisations like the defendant to facilitate broader access to the materials so that the general public can better understand the law”.

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More on this story

12 June 2020   B. Brett Heavner of Finnegan explores the implications of the US Supreme Court’s Georgia v Public.Resource.Org ruling for US states and their legal codes.
25 June 2019   The US Supreme Court is to decide whether states can hold copyright protection on annotated codes of law, in the case Georgia v Public.Resource.Org.
31 March 2021   A podcast by the International Trademark Association explored how Ginsburg shaped IP law—as well as offering a behind-the-scenes look at her professional and personal life.