Death of the Author: the Evolution and Expansion of the Government Edicts Doctrine in Copyright Law
| Publication year | 2021 |
Death of the Author: The Evolution and Expansion of the Government Edicts Doctrine in Copyright Law
Elizabeth Selph
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Codification of the law is an expensive and time-consuming task that requires a certain level of skill and an ability for quick turnaround of product.1 Because of this, Congress and a majority of state legislatures hire companies, pursuant to their respective jurisdictions, with legal experts who organize legal information from a wide swath of sources into masterfully-constructed annotations brimming with helpful information to the reader.2 These annotations are so useful that the federal and state judiciary often employ them to understand statutes that are unclear or to define the scope of statutes.3 Moreover, these annotations, due to the nature of the agreement with their respective legislatures, even save taxpayers a great amount of money.4 If you are a publication company, have an employer with enough capital to purchase a subscription package with these publication companies, or are an individual with expendable funds, there are little drawbacks to copyrighted annotations. For many Americans, unfortunately, this option is not so freely available.
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Annotated copies of the Official Code of Georgia Annotated (O.C.G.A.) and other statutes are often copyrighted and require payment of several hundred dollars for access.5 Even with the distribution of copies to libraries pursuant to the publication agreement, these provided O.C.G.A. sets are often incomplete, outdated, and require travel that might not be possible or feasible to everyone.6 Even if an individual can pay for annotated versions of statutes, the websites on which these codes are accessed are coded in a manner, in the facilitation of paywall restrictions, that hampers legal research and prevents those who need to use accessibility software from reading the annotated copies.7 If these annotations were more cursory, such results could be more excusable, but the federal and state judiciary have shown that this is not the case.
Federal and state courts give annotations the power to aid interpretation and contextualization of the law, indicate which statutes have been ruled unconstitutional or repealed, even though they are still a part of the O.C.G.A., and have become a fundamental part of the process of reading and understanding the O.C.G.A., other state codes, and federal codes.8 Because of this, the annotations have been given tremendous power as explanatory legal material to impact the law, and many recognize that people reading the statutes without the
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annotations are at a significant disadvantage to understanding the laws which govern their lives.9
This Comment analyzes the historical development of the government edicts doctrine and the impact Georgia v. Public.Resource.Org, Inc.10 has on the American people. Part II outlines the development of copyright law, the government edicts doctrine, work for hire doctrine, and statutory interpretation as they relate to this recent evolution of copyright law. Part III explains Georgia v. Public.Resource.Org, Inc. in the United States Supreme Court, the preceding district and appellate court decision on this case, as well as prior case law discussing the government edicts doctrine. Part IV discusses how uncopyrightable legislative works will impact groups such as legal researchers, agencies, publishers, other states, those with disabilities, future intellectual property lawsuits, and others under purview of American legislatures.
A. The Foundations of Copyright
The Constitution gives Congress the right to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."11 Through this, Congress created The Copyright Act,12 which allows copyright protection for "original works of authorship."13 Copyright grants the holder the exclusive right to reproduce the work, to prepare derivative works, to distribute copies of the work, to sell the work, to perform the work publicly, or to display the work.14 Copyright interests are given to the author of the work, so authorship is a fundamental factor for a determination of copyright ownership.15
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Copyright protection grants to the owner exclusive monopolization of a work in the work's respective market for at least several decades, with the specific lengths varying dependent on the date of the copyright, the author, and the lifetime of the author.16 An author can also transfer or assign a copyright through a signed "instrument of conveyance."17 Through the Berne Convention, an international treaty signed by the United States in 1989, the works of authors are also protected internationally in the other 178 countries that signed the treaty.18
Copyright protection was created to "promote the Progress of . . . [the] useful Arts."19 If individuals are guaranteed by the government the right to hold a monopoly on their work in an economic market, copyright proponents believe that those individuals will continue to do so for economic incentive. These creators, recognizing the government's assurance of their solitary control over their work, will be able to block free-riders and hold themselves out as the sole creators of a work on the market. Through competition on the market the best creations will earn the most revenue, incentivizing those artists to create more creative content, thus "promot[ing] the Progress of . . . [the] useful Arts."20 One of the strongest criticisms of this reasoning is that the vulnerability and high degree of risk involved in a new, non-market-tested work can result in only slight variations of an already-proven successful product to be marketed to the public. Regardless, other forces such as societal drives for differing and new creative content ensure shifts in the Arts promoted to the public.
B. The Creation and Evolution of the Government Edicts Doctrine
Wheaton v. Peters,21 an 1834 United States Supreme Court case, was the first case which concerned the copyrightability of a government edict.22 In this case, a court reporter wanted to establish a copyright on court opinions that he had written through his occupation.23 The Court determined that a court reporter did not hold a valid copyright claim to a court opinion, and a judge is also unable to grant a court reporter this
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copyright.24 The Court used the Copyright Act of 179025 and mentioned that the court reporter was the author, but excluded an explanation as to why the law was not eligible for copyright.26
The Massachusetts Supreme Judicial Court gave reasoning to this belief with its 1886 case Nash v. Lathrop,27 where a publisher wanted to exclude a newspaper from publishing copies of judicial opinions in the daily paper.28 On the question of "whether the [state] has an absolute [copyright] in the opinions of the justices after they are filed with the reporter," the court held that the state could not because "justice requires" free access to judicial opinions.29 The court stated that public policy disallowed any suppression of this type, and immediate public access to judicial opinions was an existing right of citizenry.30 The Nash opinion focused mostly on this public policy concern rather than any notion of authorship of the work.
The Supreme Court of the United States cited Nash as the rationale for the holding in the case Banks v. Manchester,31 which also involved judicial opinions.32 In Banks, a publishing firm under contract by the state of Ohio via statute for the publication of Supreme Court of Ohio judicial opinions sued an author who published the opinions in the American Law Journal.33 The Court in 1888 determined that a state judge or those under the judge's direction also could not hold a copyright despite the preparations of an opinion, the statement of the case, the syllabus, and the headnotes.34
The Court reasoned that while a relationship existed between the state and the judicial opinion, the Court was unable to answer who was the proper author of the work.35 The Court could only identify that the state could not qualify as an author, citizen, or any other descriptor of an individual capable of receiving protection under copyright.36 The Court stated that while judges are paid by the People at a fixed salary and have no monetary interest in the opinions they write, the People
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have paid into judicial opinions which grants them proprietorship.37 The court also emphasized how information that is binding to the public should be available to them freely.38
A month later in 1888, the Supreme Court decided Callaghan v. Myers,39 where a reporter appointed by the Supreme Court of Illinois sold to a publisher court opinions and annotations that he prepared while employed for the state.40 This publisher later sued another publisher who had published the same reports; the other publisher stated that the work was under the public domain because any work done by the reporter was completed as part of his public duties.41 However, the Court disagreed, stating that while judges cannot produce copyright while creating written work in their official capacity, a reporter who prepares explanatory information should be able to receive a copyright for the intellectual labor.42 The Court stated that he could obtain the copyright as an author for the parts which he created, but that he could not be an author as to judicial opinions because copyright was not intended to grant the writer of a judicial opinion a monopoly over the law.43 The Court also reasoned that since the state government never objected to his sale of the work he did as a reporter, not only did this suggest his ownership of...
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