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Can Georgia Copyright Its Annotated Codes?

Student researching in a library
By Joseph Fawbush, Esq. on December 04, 2019 10:42 AM

Oral argument during the Supreme Court's second case on December 2 drew far less attention than the first, which is fair enough considering the first was the biggest Second Amendment case in a decade. And the second was . . . well, kind of for legal nerds. But it was nonetheless interesting and may have significant ramifications for the availability of official state codes - and annotations for those codes. Before the court was the question of whether Georgia, working with LexisNexis, could copyright the Official Code of Georgia Annotated.

Texts With “the Force of Law" Ineligible for Copyright

It has long been established that federal and state governments cannot copyright statutes and court opinions. This is a judicial doctrine from the 19th century (called the Government Edicts Doctrine). Georgia, however, does not publish its code separately from annotations. Instead, they are packaged with annotations compiled by LexisNexis. That the annotations in the OCGA “are sufficiently law-like" was the rationale behind the Eleventh Circuit's decision holding Georgia's official code ineligible for copyright protection.

The case arose when Public.Resource.Org purchased a copy of Georgia's code from Lexis and posted it online for free. Georgia, which purports to hold the copyright to the annotated publication, sued.

The Discussion

At oral argument, Georgia maintained that just because a published work is an “official" document of the state does not mean it is not copyrightable – only the narrow texts with the “full force of the law" are unavailable for copyright. PRO argued that since Georgia approves of every word published in the Official Code of Georgia Annotated, it reflects the “imprimatur" of Georgia and is not subject to copyright.

The justices were engaged, and challenged both the petitioner and respondent on a variety of points. Justice Breyer also offered several commentaries, noting at one point that PRO would have to show that “official" annotations play a larger role in the law than “unofficial" ones, and that “I doubt that there's something here that shows that, but maybe there is." On the other hand, Justice Gorsuch noted that the OCGA is approved by the legislature as a whole, asking why they would “allow the official law enacted by a legislature … to be hidden behind a pay wall?"

The decision is expected in June.

Disclaimer: FindLaw is a part of Thomson Reuters, which also owns Westlaw. Westlaw publishes an annotated version of Georgia codes, but those annotations were not at issue in the case. Any views expressed in this blog are solely those of the author.

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