Shortly before the U.S. Supreme Court embarked on its six-day experiment hearing oral arguments by telephone, the Court affirmed the Eleventh Circuit’s judgment in Code Revision Commission v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018), aff’d sub nom. Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020)—a copyright case that we previously covered here and here.
The question was whether Georgia’s “official” annotations to the state code were eligible for copyright protection even though they had been prepared as works for hire at the direction of a state legislative commission. The Eleventh Circuit had held that the government-edicts doctrine precluded copyright protection for works “constructively authored by the People” and had directed the entry of judgment for a nonprofit that had republished the annotations without permission.
The Supreme Court affirmed the Eleventh Circuit’s judgment, “though for reasons distinct from those relied on by the Court of Appeals.” The Court held that under the government-edicts doctrine, judges and legislators cannot be considered the copyright “authors” of works that they produce in the course of their official duties to the public. Because “no one can own the law,” “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.”
Writing for the majority, Chief Justice Roberts explained that the Georgia state commission at issue functioned “as an arm” of the state legislature and that “annotations published by legislators alongside the statutory text fall within the work legislators perform in their capacity as legislators”—regardless of whether the annotations themselves are “binding” or independently carry the “force of law.” The majority thus rejected arguments raised in dissents by Justice Thomas and Justice Ginsburg that descriptive annotations and other legislative “commentary” (over which many states have claimed copyright protection in the past) should be treated differently from state laws themselves.
Although the majority purported to articulate a straightforward rule under the government-edicts doctrine—that “whatever work [a] judge or legislator produces in the course of his judicial or legislative duties is not copyrightable”—the repercussions of the Supreme Court’s decision are not so clear, as some of our colleagues have explained in more detail here.
Posted by Lee Peifer.