Supreme Court Holds Annotations in Georgia Official Code Annotated Not Copyrightable

Last month, in Georgia v. Public.Resource.Org, ___ S. Ct. ___, 2020 WL 1978707 (April 27, 2020), the U.S. Supreme Court held that, under the “government edicts doctrine,” the annotations contained in the Official Code of Georgia Annotated (the OCGA) were not copyrightable. The case arose after the Public.Resource.Org (PRO), a nonprofit organization whose mission is “to facilitate public access to government records and legal materials,” posted a digital version of the OCGA and made it available to download without charge on various websites. The PRO also distributed copies of the OCGA to various organizations and Georgia officials. Georgia sued the PRO for copyright infringement in the U.S. District Court for the Northern District of Georgia, which held in 2017 that the annotations in the OCGA were copyrightable “because they were not enacted into law” and “lacked the force of law.” 244 F. Supp. 3d 1350, 1356 (N.D. Ga. 2017). On appeal, the U.S. Court of Appeals for the Eleventh Circuit reversed in 2018 based on its interpretation of the “government edicts doctrine.” 906 F. 3d 1229 (11th Cir. 2018). In a 5-4 opinion by Chief Justice John G. Roberts, joined by Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Brett M. Kavanaugh, the Supreme Court affirmed the holding that the annotations were not copyrightable, but did so based on a different formulation of the doctrine than the Eleventh Circuit’s.

The Government Edicts Doctrine

The government edicts doctrine was developed in three 19th century Supreme Court opinions: Wheaton v. Peters, 8 Pet. 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888); and Callaghan v. Myers, 128 U.S. 617 (1888). These precedents, taken together, established that neither judges nor the official reporter of decisions could hold a copyright in judicial opinions, or in syllabi or headnotes created by judges in the exercise of their official duties, but the reporter could hold a copyright in explanatory materials (annotations) created by the reporter himself because the reporter had no authority to speak “with the force of law.”