Copyright News

• Publication year: 2019
• Author: Jo Ardalan

Copyright News

Jo Ardalan

One LLP

HIGH COURT TO DECIDE WHO OWNS STATE STATUTE ANNOTATIONS

The Supreme Court will decide whether the Eleventh Circuit incorrectly concluded that the annotations in the Official Code of Georgia Annotated ("OCGA") cannot be copyrighted by the State of Georgia.¹ The annotations, which include enactment history and repeal information, cross references, commentaries, case notations, editors' notes, law review excerpts, and summaries of Georgia Attorney General opinions and State Bar of Georgia advisory opinions, lack the force of law. The OGCA advises that annotations "do not constitute part of the law and shall in no manner limit or expand the construction of any Code section."²

Although almost two centuries of jurisprudence have established that statutory texts and judicial opinions are unprotectable because they are written on behalf of the people, official annotations, lacking the force of law, pose a trickier legal issue.³ The Court first addressed governmental copyright ownership in Wheaton v. Peters,⁴ holding that "no reporter has or can have any copyright in the written opinions delivered by this Court; and that the judges thereof cannot confer on any reporter any such right."⁵

In Banks v. Manchester,⁶ it extended that rule to state court judicial opinions, in part because judges write opinions in their official capacity, have "received from the public treasury a stated annual salary, fixed in law," and are prohibited from receiving a pecuniary interest in their "judicial labors."⁷

Less than a month later, it decided Callaghan v. Myers, which addressed the protectability of reports published with Illinois Supreme Court opinions.⁸ The reporter, who was appointed by the Illinois Supreme Court, noted stipulations and wrote a syllabus and headnotes for each case, and often wrote a statement of facts, as well. Significantly, Illinois never claimed copyright protection in those materials.⁹ On those facts, the Court concluded that "there is no ground of public policy on which a reporter who prepares a volume of law reports, of the character of those in this case, can, in the absence of a prohibitory statute, be debarred from obtaining a copyright for the volume which will cover the matter which is the result of his intellectual labor."¹⁰

The Eleventh Circuit relied on Banks to "derive from first principles about the nature of law in our democracy" in that the people are sovereign and govern themselves.¹¹ Lawmakers and judges draft the laws "acting as servants of the People,...the People are the true authors" and the true owners of the copyright thereto.¹² It understood...