Code Revision Commission v. Public.resource.org and the Fight Over Copyright Protection for Annotations and Commentary

• Publication year: 2019

Code Revision Commission v. Public.Resource.Org and the Fight Over Copyright Protection for Annotations and Commentary

David E. Shipley
University of Georgia School of Law, shipley@uga.edu

CODE REVISION COMMISSION V. PUBLIC.RESOURCE.ORG AND THE FIGHT OVER COPYRIGHT PROTECTION FOR ANNOTATIONS AND COMMENTARY

David E. Shipley^*

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This Article analyzes Code Revision Commission v. Public.Resource.Org, a 2018 decision in which the U.S. Court of Appeals for the Eleventh Circuit applied the public edicts doctrine and held that Georgia's copyright on the annotations, commentary, and analyses in the Official Code of Georgia Annotated is invalid. The U.S. Supreme Court granted Georgia's Petition for a Writ of Certiorari on June 24, 2019. About a third of states claim copyright in the annotations to their codes, so the potential impact of this decision is substantial.
This Article's thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the code revision process in Georgia and the Public.Resource.Org litigation. It next analyzes the Eleventh Circuit's three independent but related reasons for concluding that the annotations are law-like: (1) the identity of the public officials who created the work; (2) the authoritativeness of the work; and (3) the process for creating the work. This analysis is followed by a discussion of the merger doctrine, a discussion of the use of the term 'merger' in O.C.G.A. § 1-1-1, and a brief summary of Supremacy Clause concerns. This Article concludes that the Eleventh Circuit should be reversed by the United States Supreme Court.

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Table of Contents

I. Introduction..........................................................................113

II. Code Revision in Georgia...................................................117

III. The Litigation—Code Revision Commission v. Public.Resource.Org....................................................120

A. CONSTRUCTIVE AUTHORSHIP AND THE IDENTITY OF THE PUBLIC OFFICIALS WHO CREATED THE WORK—WHETHER THE ULTIMATE AUTHOR OF THE ANNOTATIONS AND ANALYSES IS THE PUBLIC AT LARGE..............................122
B. THE AUTHORITATIVENESS OF THE ANNOTATIONS...........124
C. THE LEGISLATIVE PROCESS IN GEORGIA......................... 130

IV. Legal Significance of the "Merger" of Codified Statutes with Annotations and Chapter Analyses under O.C.G.A. § 1-1-1.................................................................131

V. Supremacy Clause Concerns.............................................137

VI. Conclusion..........................................................................140

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I. Introduction

Edicts of government, such as federal and state judicial opinions, statutes, and ordinances, are in the public domain and not subject to copyright ownership.¹ Due process requires that "citizens . . . have free access to the laws which govern them."² Accordingly, "the law, whether in court opinions or statutes, cannot be reduced to property through copyright, whether by individuals or by the government itself."³ These principles explain why the Copyright Office refuses to register government edicts, "including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials."⁴ At the same time, headnotes, annotations, case summaries, and other matters added by publishers are protectable,⁵ and the Copyright Office may register such annotations unless they "themselves have the force of law."⁶ In addition, the Copyright Act extends copyright protection to derivative works⁷ —that is, "work[s] consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship."⁸

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This dichotomy between the public domain status of judicial opinions and statutes and the copyrightability of annotations and commentary seemed fairly well-settled⁹ until 2018 when the United States Court of Appeals for the Eleventh Circuit decided Code Revision Commission v. Public.Resource.Org, Inc.¹⁰ The Official Code of Georgia Annotated (O.C.G.A.), currently produced by LexisNexis, includes research tools like annotations and legislative history along with Georgia's uncopyrightable statutes,¹¹ and the Eleventh Circuit held that this annotated version of the Official Code of Georgia is public domain material that cannot be copyrighted by Georgia.¹² Notwithstanding clear statements by the Georgia General Assembly that these annotations and summaries are not part of the law,¹³ the Eleventh Circuit opined that the annotations are law-like and are unprotectable by copyright because they are "an exercise of sovereign power."¹⁴ Georgia sought review, and the United States Supreme Court granted certiorari on June 24, 2019.¹⁵

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The ramifications of this ruling are substantial. The Eleventh Circuit eviscerated an established distinction in the edicts of government doctrine and arguably invalidated the copyright in official annotated state codes nationwide.¹⁶ The decision also undermines the copyright incentive for states to contract with third-party publishers to prepare the annotations, analyses, and commentary about the unprotectable statutory provisions in their codes. This is because the revenue third-party publishers currently receive from the sale of codes will dry up if entities like Public.Resource.Org (PRO) can freely copy a code's annotations and commentary in addition to the code's unprotected statutory portions.¹⁷ And "[w]ithout sales of copyright-protected annotated codes, companies like Lexis[Nexis] also would not agree to publish unannotated statutes for free online."¹⁸

This Article argues that the Eleventh Circuit, which has been aggressive in applying Feist Publications, Inc. v. Rural Telephone Service Co.¹⁹ to restrict the scope of copyright protection for directories, taxonomies, catalogs, and other low authorship works,²⁰ got it wrong in Public.Resource.Org and should be reversed. It went too far by constructively repealing several provisions in the Georgia

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Code and disregarding established precedent.²¹ Instead, the copyright infringement claim against PRO should have been squarely resolved in Georgia's favor. The state's infringement claim against PRO does not fit within the seemingly inconsistent, hard to reconcile cases involving privately drafted codes and standards that are made part of, or referenced in, a statute or ordinance enacted by a governmental entity.²² Moreover, the Georgia legislature clearly distinguished its unprotectable public domain statutes from the Code's copyrightable commentary and annotations when the Code was first revised almost forty years ago.²³ The U.S. District Court for the Northern District of Georgia stated that "[t]he entire O.C.G.A. is not enacted into law by the Georgia legislature and does not have the force of law."²⁴ It emphasized that the Georgia General Assembly had passed three different statutes that unequivocally indicate "that the O.C.G.A. contains both law and commentary," thereby distinguishing unprotected statutory material from copyrightable annotations and commentary.²⁵

By ruling against Georgia in its copyright infringement claim against PRO, the Eleventh Circuit tossed aside these distinctions. The fundamental question to be resolved by the U.S. Supreme Court is whether the government edicts doctrine should encompass creative works in a code, such as annotations and commentary, that

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are acknowledged to lack the force of law.²⁶ This Article, in explaining why the Eleventh Circuit incorrectly concluded that the government edicts doctrine covers the O.C.G.A.'s annotations and commentary, first discusses the code revision process in Georgia and the Public.Resource.Org litigation. Next, this Article analyzes the Eleventh Circuit's reasons for concluding that the annotations are law-like: (1) the identity of the public officials who created the work; (2) the authoritativeness of the work; and (3) the process for creating the work. This analysis is followed by a discussion of the merger doctrine, the use of the term "merger" in O.C.G.A. § 1-1-1, and a brief summary of Supremacy Clause concerns. This Article ultimately concludes that the Supreme Court should reverse the Eleventh Circuit.

II. Code Revision in Georgia

In 1976, "the Georgia General Assembly . . . created the Code Revision Study Committee to study the need for a recodification of the Georgia code."²⁷ This committee concluded that there should be an official publication of the Code and recommended that this publication be controlled by the state.²⁸ The legislature then created the Code Revision Commission, authorizing it to carry out several tasks, including contracting with a publisher to revise the 1933 Code and the state's subsequently enacted laws.²⁹ For several

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decades the Harrison Company published unofficial versions of the 1933 codification under various titles, including "Code of Georgia Annotated," "Georgia Code Annotated," and "Georgia Code Unannotated."³⁰

After hearing presentations from five law publishers, including Harrison, the Code Revision Commission entered into a ten-year contract with the Michie Company "to codify, revise, index, print, bind, and deliver according to the directions of the Commission 500 sets of a revised and recodified code of Georgia, which was to be designated as the 'Official Code of Georgia Annotated.'"³¹ The enabling legislation and the contract treated the Code as a "work made for hire" under the Copyright Act³² and vested ownership of the copyright with the state.³³ "The Commission itself developed the uniform numbering system and rules of style used in the new . . . Code," and when the editorial process was completed, a manuscript—the Code of Georgia 1981 Legislative Edition—was presented to and enacted by the General Assembly.³⁴ Annotations, indexes, and other notes and...