by Bashar H. Malkawi
Copyright is an engine for knowledge. Although copyright creates monopoly, it should not be considered as a good in itself, but as a tool which can be used to achieve desirable objectives in society. Against the current trend we have seen over the past decades, copyright can and should be curtailed in some circumstances. The U.S. Supreme Court, in a non traditional 5-4 vote, did exactly that when – on April, 20 2020- in Georgia vs. Public.Resource.org the court held that the official version of the law cannot be copyrighted. Through this decision, access to knowledge and free expressions redeemed themselves by returning legislations where they belong; the public domain.
The case, which represented a close call for copyright, involved the State of Georgia, which has one official code—the Official Code of Georgia Annotated (OCGA) and Public.Resource.org, an organization which was established to make information widely available and easily accessible through use of the Internet. The Code in the case at hand includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations that appear beneath each statutory provision. The annotations typically include summaries of judicial opinions construing each provision, summaries of pertinent opinions of the state attorney general, and a list of relevant law review articles and other references. The annotations in the OCGA were produced by Matthew Bender & Co., Inc., a division of LexisNexis Group, pursuant to a work-for-hire agreement with the Code Revision Commission- a state entity composed mostly of legislators, funded through legislative branch appropriations, and staffed by the Office of Legislative Counsel. The respondent Public.Resource.Org (PRO) posted the OCGA online and distributed copies to various organizations.
Georgia vs. Public.Resource.org is a particularly interesting case as it sits in the middle of some basic standards in copyright law. The first standard is that if the law is published in a state legislative text, then the author of this document is the public, who is speaking through the legislator. People are the authors under copyright law which in turn means that legislative texts fall in public domain. The second standard is that derivative works – such as annotations- can be attached to public domain content. These derivative works have copyright owned by private authors. The uniqueness in Georgia vs. Public.Resource.org is the state of Georgia hires a publisher- LexisNexis- to create the annotated Georgia code. These annotations were produced under the direction of the Code Revision Commission. The legislator in Georgia passes the law and then after adding the annotations, the annotated code is represented again to the Georgia legislative which re-enacts it as the official Georgia code. Therefore, Georgia vs. Public.Resource.org sits right in the middle of the above standards and prior precedents i.e. Wheaton v. Peters, Banks v. Manchester, and Callaghan v. Myers.
The District Court sided with the Code Revision 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 U.S. Supreme Court upheld the Eleventh Circuit’s decision.
The U.S. Supreme Court relied on the government edicts doctrine citing examples of reporters, who cannot have copyright in court opinions. The U.S. Supreme Court also stated that judges cannot assert copyright in the work they perform in their capacity as judges. In simple terms, there is no copyright in legislations. It is the legislator’s function to create laws. The U.S. Supreme Court did not rely on the economic theories of copyright as an incentive mechanism, designed to encourage creators to produce materials because they would be able to recover costs and make profits. According to the U.S. Supreme Court, the economic theories of copyright do not apply to legislation as there is no incentive for the legislator to copyright their own legislation. The government is not an author who can have any form of natural rights over its labor. Legislation, understandably, serves a public good in making informational equity. Ordinary citizens should be to access freely the legislation they follow and abide by.
There are previous cases that govern legislative texts. The first case was Wheaton v. Peters in which the U.S. Supreme Court decided the reporter should have copyright over the entire text. However, in the last line of the court’s decision, the court stated that reporters do not own the judges’ own words. In the second case Banks v. Manchester, the U.S. Supreme court decided that there is no copyright in federal or state law. In the third case, Callaghan v. Myers, in which the reporter created annotations, the U.S. Supreme Court decided that at least in the annotation section of the legislation the author can claim copyright. Although those cases can be helpful, they are very old precedents.
Works created by the U.S. government can be freely copied. Codes carry the force of law. However, in the OCGA case, the work included annotations that were created by LexisNexis Group. Annotations required effort and time to compile after each provision. Such annotations included, summaries of judicial opinions construing each provision; summaries of pertinent opinions of the state Attorney General; and a list of related law review articles and other references. These summaries and lists are considered “original works of authorship”. The way in which these annotations were compiled included originality. Even assuming, for the sake of argument, that the OCGA itself cannot be copyrighted, there are portions of the OCGA that contain copyrighted materials from non-government sources i.e. LexisNexis Group.
The U.S. Supreme Court looked at the capacity of the person- not the person themselves- authoring the legislative text. Hence, if the person produces text in their official capacity as a lawmaker then the text loses its copyright. LexisNexis acted as commentator on the code and compiled sources and information and thus these annotations should have been copyrighted.
There are two questions to answer and which draw the line between different scenarios based on Georgia vs. Public.Resource.org. The first question is whether or not the text a legislative text? The second question is whether the legal text is official? When it is official, i.e. enacted by a legislative body, then it loses its copyright status. In Georgia vs. Public.Resource.org case, the Georgia legislative published the “official version” of the code. It is the official nature that causes the text to fall within the public domain. Based on the decision in the Georgia vs. Public.Resource.org case, the arrangement made between the Code Revision Commission and LexisNexis will have to change. There could be the “unofficial” version of the Georgia code which can be the result of collaboration between the Code Revision Commission and LexisNexis. However, the use of the “unofficial” version comes with a financial cost. Hypothetically, the way things will be in the future is that there will be two versions of the code; the official version which is available to everyone and the unofficial version which carries annotations and comes with a price.
It seems that the U.S. Supreme Court could not look at the individual elements of the OCGA as stand alone elements and thus decided that the OCGA should not be afforded copyright protections. In other words, the court could not slice up the legislative text into pieces whereby the legislative text is not copyrighted whilst providing summaries and listing of law reviews and other references that can be copyrighted. Copyright should not be applied to every single original thing that has ever been written, recorded, or otherwise affixed to a medium. It is the government’s role to create laws. People should not be expected to pay the government to view these laws.