Stephen A. Miller, left, and Chase A. Howard, right, with Cozen O'Connor.

The U.S. Supreme Court is considering whether a state can copyright annotated compilations of its own statutes. In December, the court heard oral argument in Georgia v. Public.Resource.Org, a case that may provide clarity on what sort of material constitutes a "government edict" that falls outside the scope of the copyright laws.

The official code of Georgia annotated (OCGA) is more than just a collection of Georgia statutes. It is accompanied by related annotations consisting of cross references, commentaries, excerpts from law review articles, summaries of opinions by the Georgia attorney general, as well as other research references. Georgia contracts with Mathew Bender & Co., a division of LexisNexis, to prepare the annotations, and Georgia retains the copyright to the OCGA. The Code Revision Commission, a body established by the Georgia legislature composed of members of the legislature, public officials and other appointed individuals, supervises the creation of the OCGA and offers final approval. The OCGA states that the annotations are part of the official code and that the statutory portions are "to be merged with annotations"; however, a Georgia statute clarifies that the annotations do not have the force of law.

In 2013, Public.Resource.Org (PRO), a nonprofit organization aiming to improve public access to government records, purchased 186 volumes of the OCGA in print form. PRO then scanned and published the OCGA on its website for free access to the public. The commission demanded PRO remove the OCGA from its website, claiming PRO infringed the state's copyright. PRO refused, arguing that Georgia does not hold an enforceable copyright because the OCGA is part of the public domain.

In 2015, Georgia sought injunctive relief in federal district court. The district court ruled in favor of Georgia and found that, because the OCGA lacked the force of law, it was not public domain material. The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that the OCGA was a "government edict" because of public officials' hands in helping author the annotations, the authoritativeness of the OCGA and its integration into the official code.

At the heart of Georgia and PRO's arguments is whether the OCGA is a "government edict." Government edict doctrine, last addressed by the Supreme Court in 1888, stands for the proposition that certain government works are considered "authored by the People" and, therefore, are part of the public domain rendering them not copyrightable. Two cases illustrate the evolution of the doctrine in the Supreme Court. In the first case, Banks v. Manchester (1888), when a publishing firm sought to enforce a copyright in Ohio judicial opinions prepared by judges, the Supreme Court ruled that only authors could copyright a work and that the authors, judges, could not hold a copyright on works generated as part of their official duties. In the second case, Callaghan v. Myers (1888), a state-employed reporter who authored headnotes for opinions of the Illinois Supreme Court claimed copyright over his work. The Supreme Court refused to invalidate his copyright, finding that there was no public policy grounds for depriving him of copyright in work of his own intellectual labor.

According to Georgia, the OCGA is not official law and, therefore, not a voice of the state. Instead, the voice of the state (the official code) is available to the public for free. In response, PRO argues that because the state has shaped and given its official approval to the OCGA, the OCGA comes from the voice of the state.

At oral argument, Justice Neil Gorsuch asked why the public should be faced with obstacles to materials blessed by a state: "Why would we allow the official law enacted by the legislature … to be hidden behind a pay wall?" In response, Georgia's lawyer claimed the law was "not behind a pay wall," and attempted to draw a distinction between the OCGA and the law itself, which is available for free online. Unsatisfied with Georgia's response, Gorsuch fired back: "But not the official annotations that the legislature has, in some fashion or another, given its official approval to."

Justice Ruth Bader Ginsburg pressed PRO's counsel for a response to the distinction between official law and the OCGA: "Why … shouldn't it matter that these annotations are in no sense the law, they're just useful information on how the law has been interpreted and applied by others?" Counsel for PRO responded by conceding that the OCGA annotations were not law but emphasized that the inquiry does not end there: "Our main objection is when you confer officiality on these documents and you speak in the state's voice, that's the thing you can't copyright."

Keenly aware of the practical impact of ruling the OCGA is a government edict, Justice Brett Kavanaugh pressed, "This is going to create problems in terms of incentives for creating these annotations in the first place." Kavanaugh went on to note that affirming the Eleventh Circuit's ruling would "be very disruptive for the states" because about one-third of states have a scheme similar to that of Georgia's.

The court will issue its decision before July 2020.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office.  Prior to joining Cozen O'Connor, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Chase A. Howard also practices in the firm's commercial litigation group. He received his J.D. from Temple University School of Law and his B.A. from Slippery Rock University.