The State of Georgia contracts with a private publisher to edit and publish its official state code (OCGA), which includes not only all the laws enacted by the state legislature, but also judicial decision summaries, editor’s notes, research references, notes on law review articles, summaries of the opinions of the Attorney General of Georgia, indexes, and title, chapter, article, part, and subpart captions. These are selected and coordinated by the publisher, subject to oversight by Georgia. Georgia holds a copyright in the OCGA and grants the publisher the exclusive right to publish and sell print and digital copies of the OCGA. The publisher is also required to make the unannotated statutory provisions freely available, provide a number of free copies of the OCGA to a number of state and local institutions, such as libraries, and cap the total costs of the OCGA.
Public Resource, a non-profit organization, purchased a copy of the OCGA, digitized it, and uploaded it to its own website, making it freely available. Georgia filed a suit alleging direct and indirect copyright infringement. On cross-motions for summary judgment, the Northern District Court of Georgia disagreed with defendant’s argument that the OCGA was not copyrightable as an “edict of law” and held that the copying was not permitted under the fair use doctrine.
On appeal, the Eleventh Circuit reversed, holding that the OCGA is not copyrightable. It concluded that the official annotations represent a direct exercise of sovereign power, and are therefore attributable to the constructive authorship of the People, making them intrinsically public domain material. Georgia appealed to the Supreme Court, which has agreed to review the case. The question presented is “Whether the government edicts doctrine extends to—and thus renders copyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.”
In April 2020, the Supreme Court held that the state of Georgia is not entitled to copyright protection for its official annotated code. In a 5-4 decision delivered by Chief Justice Roberts (joined by Sotomayor, Kagan, Gorsuch, & Kavanaugh), the Court upheld the Eleventh Circuit’s finding that because Georgia’s annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection. Justice Thomas (joined by Alito and Breyer) and Justice Ginsburg (joined by Breyer) filed dissenting opinions.