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In Georgia v. Public.Resource.Org, Inc.(PRO), the United States Supreme Court revived the government edicts doctrine. This out-of-date doctrine describes how works created by government officials in the course of their duties are not copyrightable. The court ruled that the doctrine is applicable to a set of agency-created annotations incorporated by the Official Code of Georgia Annotated (OCGA). Having made both profound substantive implications and manifold structural ramifications, PRO acted as a catalyst for copyright landscape reconfiguration. 

Doctrinal Development 

 The intent of the government edicts doctrine is to ensure the law is inclusive and transparent. Under the notion of popular sovereignty, people, as the ultimate authors of the law, delegate authority to government officials who legislate and interpret laws as their agents, with the power to revoke such authority. Furthermore, the well-informed citizenry with elaborate knowledge of the law underlies a healthy representative democracy. 

It was through four major cases —Wheaton v. Peter, Nash v. Lathrop, Banks v. Manchester and Callaghan v. Myers— in the nineteenth century that the doctrinal framework was incrementally constructed. First, in Wheaton v. Peters, the Supreme Court unanimously rejected a court reporter’s assertion of copyright interest in court opinions and concluded that judges cannot assign such interest to any reporter. This indicates that official judicial materials that bind the citizenry with the force of the law are not copyrightable. After more than a half century elapsed, the Supreme Court of Massachusetts extended Wheaton. Nash v. Lathrop determined that authorized expositions of the law which are non-binding de jure actually bind the citizenry de facto as do official judicial materials, and are therefore ineligible for copyright. 

Banks v. Manchester deepened Nash’s ruling and denied a state-court reporter’s copyright interest in supplementary materials prepared by the judges such as headnotes, syllabus and statement. This illuminated the non-copyrightability of any materials that are inherent byproducts of judicial function. Grappling with an exception, the United States Supreme Court case Callaghan v. Myers determined that explanatory materials created by the reporter himself are copyrightable. In sum, the government edicts doctrine has a two-pronged structure pertaining to both author’s identity and authorship’s nature—works created by authors with judicial authority under the discharge of judicial responsibilities have no copyright. Surprisingly, in the 130 years since Callaghan, the doctrine was barely applied until Georgia v. Public.Resource.Org, INC. brought it to the modern era. 

Georgia v. Public.Resource.Org, INC.

Background

In Georgia v. Public.Resource.Org, INC., the Supreme Court assessed whether the government edicts doctrine was applicable to agency-created legislative materials. The Code Revision Commission (CRC) was established by the Georgia Legislature in 1977 for recodification and reenactment of Georgia Law. The CRC amalgamated statutory provisions and supplementary annotations into a unified code— the “Official Code of Georgia Annotated” (OGGA). The CRC reached a work-for-hire agreement with the LexisNexis Group that prepared for the accompanying annotations under the CRC’s rigorous supervision and detailed specification. While Lexis was authorized to publish and sell copies of the OGGA, the agreement vest the copyright of the OGGA exclusively in the state legislature. Public.Resource.Org (PRO) dispensed physical copies and published digital versions of the OGGA to facilitate public access without authorization. Unable to deter PRO’s unauthorized distribution, the CRC sued PRO for copyright infringement of the OGGA annotations with the latter counterclaiming the ensemble of the OGGA fell in public domain. 

The Core Issue 

A major impediment in the first place was that PRO did not neatly qualify the doctrine, which only governed judiciary-related materials. Consequently, the United States Supreme Court broadened the doctrine by reasoning that the legislation-oriented materials involved in PRO were comparable to their judicial counterparts. The Supreme Court claimed that the materials should fall into the doctrinal framework. Under this expanded framework, PRO did bear resemblance to multiple precedents, albeit with none of whose ruling perfectly applicable. PRO resembled Callaghan in the sense that Lexis, a private entity with no official authority, consolidated annotations for profits under the work-for-hire arrangement. PRO also resembled Banks on the ground that the annotations constituted an integral component of the OGGA which carried the force of law. What underlay such confusion was that the authors of the OGGA were diverse and its authorship was manifold. Therefore, the linchpin of the case was, amid the intricate relationships between Lexis, the CRC and the Georgia Legislature and arcane connections between the OGGA and its annotations, to clarify who the actual author ultimately was and define what the authorship in essence was. 

Examining the Author’s Identity 

To spell out these two issues, the Supreme Court first reasoned that the author of the OGGA annotations was a legislative body. The Court held the ultimate author of the OGGA and its annotations was the CRC by clarifying the CRC-Lexis relationship. Despite the fact that Lexis was the actual drafter of the annotations, Lexis’ preparation for annotations was ultimately subordinate to the CRC’s consolidation of the OGGA. The CRC had the authority to determine both the content and the format of annotations. Furthermore, the Lexis-CRC agreement transferred Lexis’s intellectual labor to the CRC which became the sole legally-recognized author. 

Moreover, the Court held the CRC was a state entity with legislative authority just as the Georgia Legislature by strengthening the CRC-legislature relationship. The CRC was staffed by the Office of Legislative Counsel in service with the legislative branch of the State of Georgia. A majority of the commission members were from the Georgia Senate or the Georgia House. The legislative branch of Georgia appropriated funds to the CRC. Further, Georgia’s Constitution carved out the CRC’s authority of codifying the statutory text and compiling its interpretations through contracting with a publisher. While guiding Lexis to generate the annotations, the CRC did wield the state legislature’s authority. In sum, in terms of its staff composition, funding source and function under state law, the CRC was an extended offshoot and internal apparatus of the Georgia Legislature. By combining the first and second statement, the Court concluded the author of the OGGA was the CRC, a legislative entity within the sphere of legislature’s authority, which satisfied the doctrine’s requirement for official legal authority. 

Determining the Authorship’s Nature 

Having articulated the author’s identity, the Supreme Court then argued that the authorship—the activity of creating the OGGA—was under the performance of legislative duties. The annotations under the OGGA were not officially enacted into law through bicameralism and presentment. However, the CRC accompanied each statutory provision with respective annotations beneath. The Georgia Legislature approved the statutory portion and the accompanying annotations simultaneously. In addition, the OGGA was the only official code of Georgia and there was no unannotated code. The annotations were not only necessary but also inevitable for understanding the law in force. In this sense, codification and annotation became inextricably intertwined with the latter forming a part of the CRC’s legislative capacity mandated by the Georgia Legislature. On the ground that the OGGA annotations were created by the CRC, a legislative body which exercised its official responsibility, the Court ruled they qualified the government edicts doctrine and were not copyrightable.

PRO’s Implications 

Ultimately, PRO’s resurrection and expansion of the government edicts doctrine could restructure agency-involved lawmaking practices. The formulation and promulgation of the law were considered to be under a coherent procedure in the public domain, regardless of private parties’  involvement. This could foster public access to the law but simultaneously impair law firms’ interest and stymie government-agent collaboration on lawmaking. 

Structurally, PRO shed new light on the reconstruction of copyright law. There has been a structural imbalance between common law and statutory law under the copyright landscape. The  latter eclipsed the former since the promulgation of the Copyright Act of 1976. The all-encompassing codification which covered a plethora of scenarios overshadowed the unorganized and unsystematic common law. Straddling those two distinct approaches, PRO illustrated the legality of extra-textual bodies without plainly violating statutory bodies and emphasized the doctrine’s denial of authorship, the very foundation of the entire copyright statute, as a way to eschew the statute’s application in the first place. 

Additionally, PRO established an institutional equilibrium between the Congress and the judiciary. Common law is essentially judge-made and precedent-bound. Resurrection of the copyright common law augmented the judges’ discretion. The extrapolation from precedents and explication of the common law doctrine could possibly serve a new source of copyright lawmaking, which countervails congressional supremacy. 

As a result, copyright law will be more normative and less instrumental. PRO expressed a view that copyright law should not be deployed as an instrumental device for achieving policy goals and furthering copyright interests. PRO recognized that the foundational copyright principle, such as the government edicts doctrine, can be coherently applied despite policy intent, which emphasizes a balance between the public welfare and private interest. Copyright law does shield original intellectual labor and install a robust bulwark against infringement to promote expressive works. However, if the law renders the copyright proprietorship exceedingly excludable and monopolistic, it will create an “asymmetric uncertainty”. Under such uncertainty, the public users may undergo disproportionate risk of punishment and the copyright holders invariably benefit. The overdeterrence would hamper public access, inhibit expression and re-invention that is based on copyrighted works. PRO’s decision reemphasized the dual purpose of copyright law and reconstructed its symmetry.