throbber

`(Slip Opinion)
`
`
`
` OCTOBER TERM, 2019
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
`
`
`
`
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`
`
` GEORGIA ET AL. v. PUBLIC.RESOURCE.ORG, INC.
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE ELEVENTH CIRCUIT
` No. 18–1150. Argued December 2, 2019—Decided April 27, 2020
`
`The Copyright Act grants monopoly protection for “original works of au-
`thorship.” 17 U. S. C. §102(a). Under the government edicts doctrine,
`officials empowered to speak with the force of law cannot be the au-
`
`thors of the works they create in the course of their official duties.
`
`The State of Georgia has one official code—the Official Code of Geor-
`gia Annotated (OCGA). That Code includes the text of every Georgia
`statute currently in force, as well as a set of non-binding annotations
`
`that appear beneath each statutory provision. The annotations typi-
`
`cally include summaries of judicial opinions construing each provision,
`summaries of pertinent opinions of the state attorney general, and a
`
`list of related law review articles and other reference materials. The
`
`OCGA is assembled by the Code Revision Commission, a state entity
`composed mostly of legislators, funded through legislative branch ap-
`propriations, and staffed by the Office of Legislative Counsel.
`
`The annotations in the current OCGA were produced by Matthew
`Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a
`work-for-hire agreement with the Commission. Under the agreement,
`
`Lexis drafts the annotations under the supervision of the Commission,
`
`which specifies what the annotations must include in exacting detail.
`
`The agreement also states that any copyright in the OCGA vests in the
`State of Georgia, acting through the Commission.
` Respondent Public.Resource.Org (PRO), a nonprofit dedicated to fa-
`
`cilitating public access to government records and legal materials,
`posted the OCGA online and distributed copies to various organiza-
`
`tions and Georgia officials. After sending PRO several cease-and-de-
`
`sist letters, the Commission sued PRO for infringing its copyright in
`
`the OCGA annotations. PRO counterclaimed, seeking a declaratory
`
`judgment that the entire OCGA, including the annotations, fell in the
`
`
`
`
`
`
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`
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`

`

`2
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`
`GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
`
`
`Syllabus
`
`public domain. The District Court sided with the Commission, holding
`
`that the annotations were eligible for copyright protection because
`they had not been enacted into law. The Eleventh Circuit reversed,
`
`
`rejecting the Commission’s copyright assertion under the government
`edicts doctrine.
`Held: The OCGA annotations are ineligible for copyright protection.
`
`Pp. 5–18.
`
`(a) The government edicts doctrine developed from a trio of 19th-
`
`
`
`century cases. In Wheaton v. Peters, 8 Pet. 591, the Court held that no
`reporter can have a copyright in the Court’s opinions and that the Jus-
`
`
`tices cannot confer such a right on any reporter. In Banks v. Manches-
`ter, 128 U. S. 244, the Court held that judges could not assert copyright
`
`
`in “whatever work they perform in their capacity as judges”—be it “the
`opinion or decision, the statement of the case and the syllabus or the
`
`
`head note.” Id., at 253. Finally, in Callaghan v. Myers, 128 U. S. 617,
`
`
`the Court reiterated that an official reporter cannot hold a copyright
`interest in opinions created by judges. But, confronting an issue not
`
`addressed in Wheaton or Banks, the Court upheld the reporter’s copy-
`
`
`right interest in several explanatory materials that the reporter had
`created himself because they came from an author who had no author-
`ity to speak with the force of law.
`
`
`The animating principle behind the government edicts doctrine is
`
`
`that no one can own the law. The doctrine gives effect to that principle
`in the copyright context through construction of the statutory term
`“author.” For purposes of the Copyright Act, judges cannot be the “au-
`thor[s]” of “whatever work they perform in their capacity” as lawmak-
`ers. Banks, 128 U. S., at 253. Because legislators, like judges, have
`the authority to make law, it follows that they, too, cannot be “au-
`
`thors.” And, as with judges, the doctrine applies to whatever work
`legislators perform in their capacity as legislators, including explana-
`
`tory and procedural materials they create in the discharge of their leg-
`islative duties. Pp. 5–9.
`
`(b) Applying that framework, Georgia’s annotations are not copy-
`
`rightable. First, the author of the annotations qualifies as a legislator.
`
`Under the Copyright Act, the sole “author” of the annotations is the
`Commission, 17 U. S. C. §201(b), which functions as an arm of the
`Georgia Legislature in producing the annotations. Second, the Com-
`mission creates the annotations in the discharge of its legislative du-
`
`ties. Pp. 9–11.
`
`(c) Georgia argues that excluding the OCGA annotations from copy-
`
`right protection conflicts with the text of the Copyright Act. First, it
`
`notes that §101 lists “annotations” among the kinds of works eligible
`
`for copyright protection. That provision, however, refers only to “an-
`
`
`
`notations . . . which . . . represent an original work of authorship.”
`
`
`
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`
`
`
`

`

`3
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`
`Cite as: 590 U. S. ____ (2020)
`
`
`Syllabus
`
`(Emphasis added.) Georgia’s annotations do not fit that description
`
`because they are prepared by a legislative body that cannot be deemed
`
`the “author” of the works it creates in its official capacity. Second,
`
`Georgia draws a negative inference from the fact that the Act excludes
`from copyright protection works prepared by Federal Government of-
`
`ficials, without establishing a similar rule for State officials. §§101,
`
`105. That rule, however, applies to all federal officials, regardless of
`
`the nature and scope of their duties. It does not suggest an intent to
`
`displace the much narrower government edits doctrine with respect to
`the States.
`
`
`Moving on from the text, Georgia invokes what it views as the offi-
`cial position of the Copyright Office, as reflected in the Compendium
`
`
`
`of U. S. Copyright Office Practices. The Compendium, however, is a
`
`non-binding administrative manual and is largely consistent with this
`
`Court’s position. Georgia also appeals to copyright policy, but such
`requests should be addressed to Congress, not the courts.
`
`
`Georgia attempts to frame the government edicts doctrine to focus
`
`
`exclusively on whether a particular work has the force of law. But that
`understanding cannot be squared with precedent—especially Banks.
`Moreover, Georgia’s conception of the doctrine as distinguishing be-
`
`tween different categories of content with different effects has less of
`
`a textual footing than the traditional formulation, which focuses on the
`identity of the author. Georgia’s characterization of the OCGA anno-
`
`tations as non-binding and non-authoritative undersells the practical
`significance of the annotations to litigants and citizens. And its ap-
`proach would logically permit States to hide all non-binding judicial
`and legislative work product—including dissents and legislative his-
`tory—behind a paywall. Pp. 11–18.
`906 F. 3d 1229, affirmed.
`ROBERTS, C. J., delivered the opinion of the Court, in which SO-
`
`TOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J.,
`
`
`
` filed a dissenting opinion, in which ALITO, J., joined, and in which
`
`BREYER, J., joined as to all but Part II–A and footnote 6. GINSBURG, J.,
`
` filed a dissenting opinion, in which BREYER, J., joined.
`
`
`
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`
`
`
`

`

`
`
`
`
` Cite as: 590 U. S. ____ (2020)
`
`Opinion of the Court
`
`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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`
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order that
`
`
` corrections may be made before the preliminary print goes to press.
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 18–1150
`_________________
`
` GEORGIA, ET AL., PETITIONERS v.
` PUBLIC.RESOURCE.ORG, INC.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE ELEVENTH CIRCUIT
`[April 27, 2020]
`CHIEF JUSTICE ROBERTS delivered the opinion of the
`Court.
`
`The Copyright Act grants potent, decades-long monopoly
`
`
`protection for “original works of authorship.” 17 U. S. C.
`
`§102(a). The question in this case is whether that protec-
`tion extends to the annotations contained in Georgia’s
`official annotated code.
`We hold that it does not. Over a century ago, we recog-
`
`nized a limitation on copyright protection for certain
`government work product, rooted in the Copyright Act’s
`“authorship” requirement. Under what has been dubbed
`the government edicts doctrine, officials empowered to
`speak with the force of law cannot be the authors of—and
`therefore cannot copyright—the works they create in the
`course of their official duties.
`We have previously applied that doctrine to hold that
`
`non-binding, explanatory legal materials are not copyright-
`able when created by judges who possess the authority to
`make and interpret the law. See Banks v. Manchester, 128
`U. S. 244 (1888). We now recognize that the same logic ap-
`plies to non-binding, explanatory legal materials created by
`
`
`
`
`

`

`2
`
`
`GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
`
`Opinion of the Court
`
`a legislative body vested with the authority to make law.
`
`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.
`
`
`
`I
`A
`
`The State of Georgia has one official code—the “Official
`
`Code of Georgia Annotated,” or OCGA. The first page of
`each volume of the OCGA boasts the State’s official seal and
`announces to readers that it is “Published Under Authority
`of the State.”
`
`The OCGA includes the text of every Georgia statute
`currently in force, as well as various non-binding supple-
`mentary materials. At issue in this case is a set of annota-
`
`tions that appear beneath each statutory provision. The
`annotations generally include summaries of judicial deci-
`sions applying a given provision, summaries of any perti-
`
`nent opinions of the state attorney general, and a list of re-
`
`lated law review articles and similar reference materials.
`
`In addition, the annotations often include editor’s notes
`that provide information about the origins of the statutory
`
`text, such as whether it derives from a particular judicial
`decision or resembles an older provision that has been con-
`
`strued by Georgia courts. See, e.g., OCGA §§51–1–1, 53–4–
`2 (2019).
`
`
`The OCGA is assembled by a state entity called the Code
`
`Revision Commission. In 1977, the Georgia Legislature
`established the Commission to recodify Georgia law for the
`first time in decades. The Commission was (and remains)
`tasked with consolidating disparate bills into a single Code
`for reenactment by the legislature and contracting with a
`
`third party to produce the annotations. A majority of the
`Commission’s 15 members must be members of the Georgia
`
`
`
`

`

`3
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`
`
` Cite as: 590 U. S. ____ (2020)
`
`Opinion of the Court
`Senate or House of Representatives. The Commission re-
`ceives funding through appropriations “provided for the leg-
`islative branch of state government.” OCGA §28–9–2(c)
`(2018). And it is staffed by the Office of Legislative Coun-
`sel, which is obligated by statute to provide services “for the
`
`legislative branch of government.” §§28–4–3(c)(4), 28–9–4.
`
`Under the Georgia Constitution, the Commission’s role in
`compiling the statutory text and accompanying annotations
`falls “within the sphere of legislative authority.” Harrison
`
`Co. v. Code Revision Comm’n, 244 Ga. 325, 330, 260 S. E.
`2d 30, 34 (1979).
`
`Each year, the Commission submits its proposed statu-
`tory text and accompanying annotations to the legislature
`
`for approval. The legislature then votes to do three things:
`
`(1) “enact[ ]” the “statutory portion of the codification of
`
`Georgia laws”; (2) “merge[ ]” the statutory portion “with
`[the] annotations”; and (3) “publish[ ]” the final merged
`
`product “by authority of the state” as “the ‘Official Code
`of Georgia Annotated.’” OCGA §1–1–1 (2019); see Code
`
`
`Revision Comm’n v. Public.Resource.Org, Inc., 906 F. 3d
`1229, 1245, 1255 (CA11 2018); Tr. of Oral Arg. 8.
`
`
`The annotations in the current OCGA were prepared in
`the first instance by Matthew Bender & Co., Inc., a division
`of the LexisNexis Group, pursuant to a work-for-hire agree-
`ment with the Commission. The agreement between Lexis
`
`and the Commission states that any copyright in the OCGA
`
`vests exclusively in “the State of Georgia, acting through
`the Commission.” App. 567. Lexis and its army of research-
`ers perform the lion’s share of the work in drafting the an-
`notations, but the Commission supervises that work and
`specifies what the annotations must include in exacting de-
`tail. See 906 F. 3d, at 1243–1244; App. 269–278, 286–427
`(Commission specifications). Under the agreement, Lexis
`enjoys the exclusive right to publish, distribute, and sell the
`
`OCGA. In exchange, Lexis has agreed to limit the price it
`may charge for the OCGA and to make an unannotated
`
`
`
`
`
`
`
`

`

`4
`
`
`GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
`
`Opinion of the Court
`version of the statutory text available to the public online
`for free. A hard copy of the complete OCGA currently re-
`tails for $412.00.
`
`B
`
`
`Public.Resource.Org (PRO) is a nonprofit organization
`that aims to facilitate public access to government records
`and legal materials. Without permission, PRO posted a dig-
`
`ital version of the OCGA on various websites, where it could
`
`be downloaded by the public without charge. PRO also
`distributed copies of the OCGA to various organizations
`
`and Georgia officials.
`
`In response, the Commission sent PRO several cease-
`
`and-desist letters asserting that PRO’s actions constituted
`unlawful copyright infringement. When PRO refused to
`halt its distribution activities, the Commission sued PRO
`on behalf of the Georgia Legislature and the State of Geor-
`
`gia for copyright infringement. The Commission limited its
`assertion of copyright to the annotations described above; it
`
`did not claim copyright in the statutory text or numbering.
`
`PRO counterclaimed, seeking a declaratory judgment that
`
`the entire OCGA, including the annotations, fell in the
`public domain.
`
`
`The District Court sided with the Commission. The
`Court acknowledged that the annotations in the OCGA pre-
`sented “an unusual case because most official codes are not
`annotated and most annotated codes are not official.” Code
`
`Revision Comm’n v. Public.Resource.Org, Inc., 244 F. Supp.
`3d 1350, 1356 (ND Ga. 2017). But, ultimately, the Court
`
`concluded that the annotations were eligible for copyright
`
`protection because they were “not enacted into law” and
`lacked “the force of law.” Ibid. In light of that conclusion,
`the Court granted partial summary judgment to the Com-
`mission and entered a permanent injunction requiring PRO
`
`to cease its distribution activities and to remove the digital
`copies of the OCGA from the internet.
`
`
`
`

`

`5
`
`
`
` Cite as: 590 U. S. ____ (2020)
`
`Opinion of the Court
` The Eleventh Circuit reversed. 906 F. 3d 1229. The
`
`
`Court began by reviewing the three 19th-century cases in
`which we articulated the government edicts doctrine. See
`
`Wheaton v. Peters, 8 Pet. 591 (1834); Banks v. Manchester,
`128 U. S. 244 (1888); Callaghan v. Myers, 128 U. S. 617
`
`(1888). The Court understood those cases to establish a
`“rule” based on an interpretation of the statutory term “au-
`thor” that “works created by courts in the performance of
`their official duties did not belong to the judges” but instead
`
`fell “in the public domain.” 906 F. 3d, at 1239. In the
`Court’s view, that rule “derive[s] from first principles about
`
`the nature of law in our democracy.” Ibid. In a democracy,
`
`the Court reasoned, “the People” are “the constructive au-
`thors” of the law, and judges and legislators are merely
`“draftsmen . . . exercising delegated authority.” Ibid. The
`
`
`Court therefore deemed the “ultimate inquiry” to be
`
`whether a work is “attributable to the constructive author-
`ship of the People.” Id., at 1242. The Court identified three
`factors to guide that inquiry: “the identity of the public offi-
`cial who created the work; the nature of the work; and the
`process by which the work was produced.” Id., at 1254. The
`Court found that each of those factors cut in favor of treat-
`ing the OCGA annotations as government edicts authored
`
`by the People. It therefore rejected the Commission’s asser-
`
`tion of copyright, vacated the injunction against PRO, and
`directed that judgment be entered for PRO.
`
` We granted certiorari. 588 U. S. ___ (2019).
`
`
`
` II
`We hold that the annotations in Georgia’s Official Code
`
`
`are ineligible for copyright protection, though for reasons
`distinct from those relied on by the Court of Appeals. A
`careful examination of our government edicts precedents
`
`reveals a straightforward rule based on the identity of the
`author. Under the government edicts doctrine, judges—
`and, we now confirm, legislators—may not be considered
`
`
`
`
`
`

`

`6
`
`
`GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
`
`Opinion of the Court
`the “authors” of the works they produce in the course of
`
`their official duties as judges and legislators. That rule
`applies regardless of whether a given material carries the
`force of law. And it applies to the annotations here because
`they are authored by an arm of the legislature in the course
`
`of its official duties.
`
`
`A
`We begin with precedent. The government edicts doc-
`
`trine traces back to a trio of cases decided in the 19th cen-
`tury. In this Court’s first copyright case, Wheaton v. Peters,
`8 Pet. 591 (1834), the Court’s third Reporter of Decisions,
`Wheaton, sued the fourth, Peters, unsuccessfully asserting
`a copyright interest in the Justices’ opinions. Id., at 617
`
`(argument). In Wheaton’s view, the opinions “must have
`
`belonged to some one” because “they were new, original,”
`
`and much more “elaborate” than law or custom required.
`
` Id., at 615. Wheaton argued that the Justices were the au-
`thors and had assigned their ownership interests to him
`
`
` through a tacit “gift.” Id., at 614. The Court unanimously
`rejected that argument, concluding 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.” Id., at 668 (opinion).
`
`That conclusion apparently seemed too obvious to adorn
`with further explanation, but the Court provided one a half
`century later in Banks v. Manchester, 128 U. S. 244 (1888).
`That case concerned whether Wheaton’s state-court coun-
`terpart, the official reporter of the Ohio Supreme Court,
`held a copyright in the judges’ opinions and several non-
`binding explanatory materials prepared by the judges. Id.,
`at 249–251. The Court concluded that he did not, explain-
`
`ing that “the judge who, in his judicial capacity, prepares
`the opinion or decision, the statement of the case and the
`syllabus or head note” cannot “be regarded as their author
`or their proprietor, in the sense of [the Copyright Act].” Id.,
`
`
`
`
`
`

`

`7
`
`
`
` Cite as: 590 U. S. ____ (2020)
`
`Opinion of the Court
`
` at 253. Pursuant to “a judicial consensus” dating back to
`
`Wheaton, judges could not assert copyright in “whatever
`
` work they perform in their capacity as judges.” Banks, 128
` U. S, at 253 (emphasis in original). Rather, “[t]he whole
`
`
`work done by the judges constitutes the authentic exposi-
`tion and interpretation of the law, which, binding every
`
`citizen, is free for publication to all.” Ibid. (citing Nash v.
`
`
`Lathrop, 142 Mass. 29, 6 N. E. 559 (1886)).
`In a companion case decided later that Term, Callaghan
`
`
`
`v. Myers, 128 U. S. 617 (1888), the Court identified an im-
`portant limiting principle. As in Wheaton and Banks,
`
`the Court rejected the claim that an official reporter held a
`
`copyright interest in the judges’ opinions. But, resolving an
`issue not addressed in Wheaton and Banks, the Court up-
`held the reporter’s copyright interest in several explanatory
`materials that the reporter had created himself: headnotes,
`syllabi, tables of contents, and the like. Callaghan, 128
`
`U. S., at 645, 647. Although these works mirrored the
`
`judge-made materials rejected in Banks, they came from an
`
`author who had no authority to speak with the force of law.
`Because the reporter was not a judge, he was free to “ob-
`tain[ ] a copyright” for the materials that were “the result
`of his [own] intellectual labor.” 128 U. S., at 647.
`These cases establish a straightforward rule: Because
`
`judges are vested with the authority to make and interpret
`the law, they cannot be the “author” of the works they pre-
`
`pare “in the discharge of their judicial duties.” Banks, 128
`U. S., at 253. This rule applies both to binding works (such
`as opinions) and to non-binding works (such as headnotes
`
`and syllabi). Ibid. It does not apply, however, to works cre-
`
`ated by government officials (or private parties) who lack
`
`the authority to make or interpret the law, such as court
`
`reporters. Compare ibid. with Callaghan, 128 U. S., at 647.
`
`The animating principle behind this rule is that no one
`can own the law. “Every citizen is presumed to know the
`law,” and “it needs no argument to show . . . that all should
`
`
`
`
`
`

`

`8
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`
`GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
`
`Opinion of the Court
`have free access” to its contents. Nash, 142 Mass., at 35, 6
`N. E., at 560 (cited by Banks, 128 U. S., at 253–254). Our
`
`cases give effect to that principle in the copyright context
`
`through construction of the statutory term “author.” Id., at
`253.1 Rather than attempting to catalog the materials
`that constitute “the law,” the doctrine bars the officials
`responsible for creating the law from being considered the
`“author[s]” of “whatever work they perform in their capac-
`ity” as lawmakers. Ibid. (emphasis added). Because these
`officials are generally empowered to make and interpret
`
`law, their “whole work” is deemed part of the “authentic ex-
`position and interpretation of the law” and must be “free for
`publication to all.” Ibid.
`
`If judges, acting as judges, cannot be “authors” because of
`
`
`their authority to make and interpret the law, it follows
`
`that legislators, acting as legislators, cannot be either.
`
`Courts have thus long understood the government edicts
`
`doctrine to apply to legislative materials. See, e.g., Nash,
`142 Mass., at 35, 6 N. E., at 560 (judicial opinions and stat-
`utes stand “on substantially the same footing” for purposes
`
`of the government edicts doctrine); Howell v. Miller, 91 F.
`
`129, 130–131, 137–138 (CA6 1898) (Harlan, J., Circuit Jus-
`tice, joined by then-Circuit Judge Taft) (analyzing statutes
`
`and supplementary materials under Banks and Callaghan
`and concluding that the materials were copyrightable be-
`cause they were prepared by a private compiler).
`Moreover, just as the doctrine applies to “whatever work
`
`
`[judges] perform in their capacity as judges,” Banks, 128
`
`
`
`
`
`
`
`
`——————
`
`1The Copyright Act of 1790 granted copyright protection to “the author
`
` and authors” of qualifying works. Act of May 31, 1790, §1, 1 Stat. 124.
`
`
` This author requirement appears in the current Copyright Act at
`
`§102(a), which limits protection to “original works of authorship.” 17
`U. S. C. §102(a) (emphasis added); see also §201(a) (copyright “vests ini-
`tially in the author or authors of the work”).
`
`
`
`

`

`9
`
`
`
`
`
` Cite as: 590 U. S. ____ (2020)
`
`Opinion of the Court
`U. S., at 253, it applies to whatever work legislators per-
`form in their capacity as legislators. That of course includes
`final legislation, but it also includes explanatory and proce-
`dural materials legislators create in the discharge of their
`
`legislative duties. In the same way that judges cannot be
`
`the authors of their headnotes and syllabi, legislators can-
`not be the authors of (for example) their floor statements,
`
`committee reports, and proposed bills. These materials are
`part of the “whole work done by [legislators],” so they must
`
`be “free for publication to all.” Ibid.
`
`Under our precedents, therefore, copyright does not vest
`
`in works that are (1) created by judges and legislators (2) in
`
`the course of their judicial and legislative duties.
`B
`1
`Applying that framework, Georgia’s annotations are not
`
`copyrightable. The first step is to examine whether their
`
`purported author qualifies as a legislator.
`As we have explained, the annotations were prepared in
`
`
`the first instance by a private company (Lexis) pursuant to
`
`a work-for-hire agreement with Georgia’s Code Revision
`Commission. The Copyright Act therefore deems the Com-
`mission the sole “author” of the work. 17 U. S. C. §201(b).
`Although Lexis expends considerable effort preparing the
`annotations, for purposes of copyright that labor redounds
`
`to the Commission as the statutory author. Georgia agrees
`
`that the author is the Commission. Brief for Petitioners 25.
`The Commission is not identical to the Georgia Legisla-
`
`ture, but functions as an arm of it for the purpose of produc-
`ing the annotations. The Commission is created by the leg-
`islature, for the legislature, and consists largely of
`
`legislators. The Commission receives funding and staff des-
`ignated by law for the legislative branch. Significantly, the
`
`annotations the Commission creates are approved by the
`
`legislature before being “merged” with the statutory text
`
`
`
`
`
`

`

`
`
`
`10
`
`
`GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
`
`Opinion of the Court
`and published in the official code alongside that text at the
`legislature’s direction. OCGA §1–1–1; see 906 F. 3d, at
`
`1245, 1255; Tr. of Oral Arg. 8.
`If there were any doubt about the link between the Com-
`
`mission and the legislature, the Georgia Supreme Court
`has dispelled it by holding that, under the Georgia Consti-
`tution, “the work of the Commission; i.e., selecting a pub-
`lisher and contracting for and supervising the codification
`of the laws enacted by the General Assembly, including
`
`court interpretations thereof, is within the sphere of legisla-
`tive authority.” Harrison Co., 244 Ga., at 330, 260 S. E. 2d,
`
`at 34 (emphasis added). That holding is not limited to the
`
`Commission’s role in codifying the statutory text. The Com-
`mission’s “legislative authority” specifically includes its
`
`“codification of . . . court interpretations” of the State’s laws.
`
`Ibid. Thus, as a matter of state law, the Commission wields
`
`the legislature’s authority when it works with Lexis to pro-
`duce the annotations. All of this shows that the Commis-
`
`sion serves as an extension of the Georgia Legislature in
`
`preparing and publishing the annotations. And it helps
`explain why the Commission brought this suit asserting
`
`copyright in the annotations “on behalf of and for the
`benefit of ” the Georgia Legislature and the State of
`
`
`Georgia. App. 20.2
`
`2
`The second step is to determine whether the Commission
`
`creates the annotations in the “discharge” of its legislative
`“duties.” Banks, 128 U. S., at 253. It does. Although the
`
`
`annotations are not enacted into law through bicameralism
`
`and presentment, the Commission’s preparation of the an-
`
`
`
`——————
`2 JUSTICE THOMAS does not dispute that the Commission is an exten-
`
`sion of the legislature; he instead faults us for highlighting the multiple
`features of the Commission that make clear that this is so. See post, at
`16 (dissenting opinion).
`
`
`
`

`

`
`
` 11
`
`
`
` Cite as: 590 U. S. ____ (2020)
`
`Opinion of the Court
`notations is under Georgia law an act of “legislative author-
`
`ity,” Harrison Co., 244 Ga., at 330, 260 S. E. 2d, at 34, and
`the annotations provide commentary and resources that the
`
`legislature has deemed relevant to understanding its laws.
`
`Georgia and JUSTICE GINSBURG emphasize that the anno-
`
`tations do not purport to provide authoritative explanations
`of the law and largely summarize other materials, such as
`
`judicial decisions and law review articles. See post, at 3–4
`
`(dissenting opinion). But that does not take them outside
`the exercise of legislative duty by the Commission and leg-
`
`islature. Just as we have held that the “statement of the
`case and the syllabus or head note” prepared by judges fall
`
`within the “work they perform in their capacity as judges,”
`Banks, 128 U. S., at 253, so too annotations published by
`legislators alongside the statutory text fall within the work
`legislators perform in their capacity as legislators.
`
`In light of the Commission’s role as an adjunct to the leg-
`
`islature and the fact that the Commission authors the
`
`annotations in the course of its legislative responsibilities,
`
`the annotations in Georgia’s Official Code fall within the
`government edicts doctrine and are not copyrightable.
`
`III
`
`
`Georgia resists this conclusion on several grounds. At the
`outset, Georgia advances two arguments for why, in its
`view, excluding the OCGA annotations from copyright
`
`protection conflicts with the text of the Copyright Act. Both
`are unavailing.
`
`
`First, Georgia notes that §101 of the Act specifically lists
`“annotations” among the kinds of works eligible for copy-
`right protection. But that provision refers only to “annota-
`tions . . . which . . . represent an original work of author-
`ship.” 17 U. S. C. §101 (emphasis added). The whole point
`of the government edicts doctrine is that judges and legis-
`
`
`lators cannot serve as authors when they produce works in
`their official capacity. While the reference to “annotations”
`
`
`
`
`
`

`

`12
`
`
`GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
`
`Opinion of the Court
`in §101 may help explain why supplemental, explanatory
`
`materials are copyrightable when prepared by a private
`party, or a non-lawmaking official like the reporter in Cal-
`laghan, it does not speak to whether those same materials
`
`
`are copyrightable when prepared by a judge or a legislator.
`
`In the same way that judicial materials are ineligible for
`protection even though they plainly qualify as “[l]iterary
`
`works . . . expressed in words,” ibid., legislative materials
`are ineligible for protection even if they happen to fit the
`description of otherwise copyrightable “annotations.”
`
`Second, Georgia draws a negative inference from the fact
`
`that the Act excludes from copyright protection “work[s]
`prepared by an officer or employee of the United States
`Government as part of that person’s official duties” and
`
`does not establish a similar rule for the States. §101; see
`
`also §105. But the bar on copyright protection for federal
`works sweeps much more broadly than the government
`
`edicts doctrine does. That bar applies to works created by
`all federal “officer[s] or employee[s],” without regard for the
`nature of their position or scope of their authority. What-
`ever policy reasons might justify the Federal Government’s
`decision to forfeit copyright protection for its own proprie-
`
`tary works, that federal rule does not suggest an intent to
`
`displace the much narrower government edicts doctrine
`
`with respect to the States. That doctrine does not apply to
`non-lawmaking officials, leaving States free to assert copy-
`
`right in the vast majority of expressive works they produce,
`such as those created by their universities, libraries,
`tourism offices, and so on.
`
`More generally, Georgia suggests that we should resist
`
`applying our government edicts precedents to the OCGA
`annotations because our 19th-century forebears inter-
`
`preted the statutory term author by reference to “public
`
`policy”—an approach that Georgia believes is incongruous
`
`with the “modern era” of sta

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