Copyright (legislative codifications, judicial
opinion, other official materials):
Sovereignty:
Public domain:
Today, we are presented with the question of
whether the annotations contained in the Official Code of Georgia Annotated
(OCGA), authored by the Georgia General Assembly and made an inextricable part
of the official codification of Georgia’s laws, may be copyrighted by the State
of Georgia.
Answering this question means confronting
profound and difficult issues about the nature of law in our society and the
rights of citizens to have unfettered access to the legal edicts that govern
their lives. After a thorough review of the law, and an examination of the
annotations, we conclude that no valid copyright interest can be asserted in
any part of the OCGA.
(…) In most states the “official” code is
comprised of statutory text alone, and all agree that a state’s codification
cannot be copyrighted because the authorship is ultimately attributable to the
People. Conversely, all agree that annotations created by a private party
generally can be copyrighted because the annotations are an original work
created by a private publisher. But the annotations in the OCGA are not exactly
like either of these two types of works. Rather, they fall somewhere in between
-- their legal effect and ultimate authorship more indeterminate. To resolve
this question, then, we reason by analogy, and drill down on the core
attributes that make the OCGA annotations what they are -- namely an exercise
of sovereign power.
The general rule that legislative codifications
are uncopyrightable derives from an understanding of the nature of law and the
basic idea that the People, as the reservoir of all sovereignty, are the source
of our law.
That the law itself, whether it takes the form
of a legislative enactment or of a judicial opinion, is subject to the rule is clear and not contested. This is because
these works represent the quintessential exercise of sovereign power. When a
legislature enacts a law, or a court writes an opinion rendering an official
interpretation of the law in a case or controversy, they are undisputedly
speaking on behalf of the People, who are properly regarded as the author of
the work.
The task we face today is whether we should
similarly treat Georgia’s entire official code, which expressly merges its
statutes and their official annotations, as the sovereign expression of the
People by their legislature, as public domain material.
In particular, we rely on the identity of the
public officials who created the work, the authoritativeness of the work, and
the process by which the work was created. These are critical markers. Where
all three point in the direction that a work was made in the exercise of
sovereign power -- which is to say where the official who created the work is
entrusted with delegated sovereign authority, where the work carries
authoritative weight, and where the work was created through the procedural
channels in which sovereign power ordinarily flows -- it follows that the work
would be attributable to the constructive authorship of the People, and
therefore uncopyrightable.
The question is a close one -- and important
considerations of public policy are at stake on either side -- but, at the end
of the day, we conclude that the annotations in the OCGA are sufficiently
law-like so as to be properly regarded as a sovereign work.
(…) Appearing alongside the statutory text are
various annotations, consisting of history lines, repeal lines, cross
references, commentaries, case notations, editor’s notes, excerpts from law
review articles, summaries of opinions of the Attorney General of Georgia,
summaries of advisory opinions of the State Bar, and other research references.
The Code itself makes clear that these annotations are a part of the official
Code, stating that the statutory portions of the Code “shall be merged with
annotations… and are published by authority of the state …and when so published
are to be known and may be cited as the ‘Official Code of Georgia Annotated.’”
O.C.G.A. § 1-1-1. (…) The annotations were initially prepared by Mathew Bender
& Co., Inc., an operating division of the LexisNexis Group, (Lexis),
pursuant to an agreement it entered into with the State of Georgia. Under the
terms of the agreement, Lexis is responsible for the ongoing publication and
maintenance of the Code, and all editorial, publication, and distribution
costs. In exchange, Lexis was given the exclusive right of publication by
Georgia. But, notably, Georgia holds the copyright in the annotations in its
own name. The publication agreement also specifies what types of annotations
should appear alongside the statutory text, and provides detailed and specific
directions as to how Lexis is to generate and arrange this content. The
agreement also provides that the Code Revision Commission (the “Commission”)
supervises the work of Lexis and has final editorial control over the contents
of the OCGA (…) The agreement requires that Lexis create a free, unannotated,
online version of the Code for use by the general public.
((…) The Supreme Court has not examined the
doctrine since it decided Callaghan in 1888. However, since Banks and Callaghan
the lower courts have further explored the nature and application of the rule. Thus, for example, the Sixth
Circuit, in an opinion authored by Justice Harlan, applied the rule to state statutes. Howell v. Miller, 91 F. 129
(6th Cir. 1898). The Fifth Circuit has extended the rule to encompass regulatory materials. Veeck
v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc).
However, other courts have declined to extend the rule in other, related
contexts. See, e.g., CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports,
Inc., 44 F.3d 61 (2d Cir. 1994) (declining
to apply the rule to a privately prepared listing of automobile values that
several states required insurance companies to use in calculating insurance
payouts); Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516 (9th
Cir. 1997), amended, 133 F.3d 1140 (9th Cir. 1998) (declining to apply the rule to a privately authored coding system that
was incorporated into a government reimbursement scheme through publication in
the Federal Register); Cty. of Suffolk v. First Am. Real Estate Sols., 261
F.3d 179, 193 (2d Cir. 2001) (declining
to apply the rule to tax maps created by a county assessor’s office); John
G. Danielson, Inc. v. Winchester-Conant Properties, Inc., 322 F.3d 26 (1st Cir.
2003) (declining to apply the rule to
the terms of a restrictive covenant a town entered into as part of a zoning
scheme).)
(…) In casu: In addition to providing detailed
instructions that guide the creation of the OCGA annotations, the Commission
acts in a supervisory capacity as well, monitoring Lexis’s work throughout the
process. The contract says that the annotations are prepared under the “direct
supervision” of the Commission. The contract spells out in some detail what
this supervision means.
(…) As a consequence, we conclude that the
People are the ultimate authors of the annotations. As a work of the People the
annotations are inherently public domain material and therefore
uncopyrightable. Because we conclude that no copyright can be held in the
annotations, we have no occasion to address the parties’ other arguments
regarding originality and fair use.
(…) The Commission’s intimate involvement in the
creation of the annotations is of great significance. This is because a close
examination of the nature of the Commission confirms that it is for all intents
and purposes an arm of the Georgia General Assembly (…) The connection between
the Commission and the elected legislators who make up the General Assembly is
so close that the Commission may be properly regarded as one in the same with
the legislators for our purposes.
(…) Among other things, there is a substantial
public policy interest in public access to state-created legal edicts for many
of the same reasons that Congress decided to make all works of the federal
government uncopyrightable under § 105, namely because providing free access to
such works promotes an informed citizenry. See Veeck, 293 F.3d at 799
(“Citizens may reproduce copies of the law for many purposes, not only to guide
their actions but to influence future legislation, educate their neighborhood
association, or simply to amuse.”). And it is worth remembering that the
Supreme Court grounded the meaning of the word “author” in Banks on its understanding
of public policy (fn. 2, p. 38).
(U.S. Court of Appeals for the Eleventh Circuit,
Code Revision Commission v. Public.Resource.Org, Inc., Oct. 19, 2018, Docket
No. 17-11589, Circuit Judge Marcus, for publication)
L’état de Géorgie
publie son recueil de lois 1 ) sans annotation, 2 ) avec annotations, préparées
par une entreprise privée, sur instructions et sous surveillance du législateur.
Seule la codification annotée peut être valablement citée devant les cours de
justice de l’état. De la sorte, en tant qu’émanation du législateur dans
l’exercice de ses attributions souveraines au service de tous, la codification
annotée ne saurait faire l’objet d’un copyright. Elle est à la libre
disposition du public, tout comme par exemple une décision de justice. Ce qui
précède ne veut pas dire que toute la production du législateur, d’un membre de
l’administration ou d’un Juge est insusceptible de copyright : dès que l’expression
sort des productions officielles sises dans le domaine public, elle peut
éventuellement être protégée par copyright, ce qui implique une analyse très
fine et au cas par cas. La présente espèce en donne de nombreux exemples.
