Supreme Court to Address the Limitations on State-Authored Copyrights

This week, the Supreme Court agreed to hear the petition in Georgia v. Public.Resource.Org, Inc. to answer the question regarding the copyrightability of state-authored statutory authority and statutory interpretations.

Section 105 of the Copyright Act provides that U.S. Government-authored works are not protected by copyright. This statutory exclusion is consistent with the constitutional framework of copyright, since there is no need to use the rights of copyright to encourage the creation of copyrighted works by the federal government.

The federal copyright statute does not address state-created content. Early in the history of copyright, however, in Banks v. Manchester, 128 U.S. 244, 253-254 (1888), the Supreme Court made it clear that both state and federal judicial opinions were not to be within the subject matter of copyright. The nineteenth century opinion did not address state statutes, and the Fourteenth Amendment has never automatically extended all federal constitutional protections to the states. Instead, the Fourteenth Amendment has been slowly and selectively extended to the States.

Increasingly, however, as cost of reproducing content has dropped, courts are increasingly willing to find that state statutes are not protected by copyright. Sometimes referred to as the “government edits” rule, the public’s right to have access to the laws should not require the need to pay and should not be a revenue source for states.

Public Resource Org., has challenged the right of a state to control and sell the annotations and interpretations of the state statutes. Much like regulations, these annotations and interpretations are not the official law, but they are essential to follow the laws. It seems axiomatic that these materials are so similar to law that they should be treated like law and outside the scope of copyright.

The question presented is: Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.

Some annotations, however, are truly creative works in which an editorial team analyzes publications, cases, and other materials to provide a legal codex that helps explain the law. These can be expensive to create, require editorial decision-making, and are not essential to follow the law. Typically, these are not the production of states, but instead are created by commercial publishers, trade associations, and legal institutes.

In other situations, a trade association may develop a model statute supported by complex analysis. The work of the trade association is protected by copyright. If the model statute is adopted by one or more states, however, that statute should lose its copyright under the government edits rule. But that does not answer whether the copyrighted materials that the trade association used to create the model act should also lose their copyright status.

When the Supreme Court addresses the government edits question, it is very likely to affirm the Eleventh Circuit, making clear that state statutes do not have copyright protection. Resolving this threshold question will be very valuable. The Court will likely eliminate copyright protection for states that author interpretations. Beyond that, the Court will need to draw a line regarding the annotations created by non-state authors. Since the Court has been quick to limit copyright in recent terms, it could go much further, however, making this an important case to follow. See Code Revision Comm’n for Gen. Assembly of Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229, 1242 (11th Cir. 2018), cert. granted sub nom. Georgia v. Public.Resource.Org, Inc., No. 18-1150, 2019 WL 1047486 (U.S. June 24, 2019).

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