When legislators write laws and judges issue decisions, it is not usually a controversial principle that the text of these laws and decisions are not protected by copyright.¹ In fact, section 105 of the Copyright Act specifically states, in part, that “[c]opyright protection under this title is not available for any work of the United States Government….”² The law has not been so clear, however, when state legislatures or governmental bodies have incorporated copyrightable third-party standards or editorial material into the official laws and regulations. Recently, the U.S. Court of Appeals for the Eleventh Circuit considered a version of this question in Code Revision Commission, State of Georgia v. Public.Resource.Org., Inc., No. 17-11589 (11th Cir. Oct. 19, 2018) and identified three factors to consider in determining “whether a written work is attributable to the constructive authorship of the People” and not copyrightable as a result.³  The factors which the eleventh circuit identified as characteristics of a document that represent the law as constructively authored by the public are:

1. The law is written by particular public officials who are entrusted with the exercise of legislative power;
2. The law is, by its nature, authoritative; and
3. The law is created through certain, prescribed processes and deviating from these processes deprive it of legal effect.⁴

Factual Background

Georgia’s official state code (the “official code” or “O.C.G.A.”) includes not only statutory text enacted by the legislature, but also annotations that include commentaries, advisory opinions from the state bar and attorney general, and other reference notes. Although the annotations are considered part of the official code, the annotations do not generally carry the force of law.⁵ The annotations were initially prepared by Matthew Bender & Co., Inc., an operating division of LexisNexis, in exchange for, in part, the exclusive right of publication. However, final editorial control of the annotations rests with the Code Revision Commission, a governmental body established by the Georgia General Assembly, and the state of Georgia claimed copyright in the annotations (but not the statutory text) in its own name. In 2013, Public.Resource.Org (“Public Resource”), a non-profit organization headed by Carl Malamud, purchased a full set of the printed O.C.G.A. for the purpose of republishing the official code to the public, free of charge. The Code Revision Commission (acting on behalf of the state and its legislature) argued that this republication infringed on the state’s copyright and eventually sued for injunctive relief in the U.S. District Court for the Northern District of Georgia. Public Resource counterclaimed, seeking a declaratory judgment that the State of Georgia could not hold a valid copyright in any part of the O.C.G.A. The district court found in favor of Georgia, concluding that the annotations lacked the force of law and, therefore, were not in the public domain. The district court also rejected Public Resource’s defense of fair use. Public Resource then appealed to the eleventh circuit.

The People as “Author”

The eleventh circuit reversed, finding “that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable.”⁶ In reaching this conclusion, the court acknowledged that the foundations of this rule were “generally implicit and unstated,”⁷ but emphasized the lengthy history and line of authority resulting from the U.S. Supreme Court’s cases that establish, with respect to certain governmental works, the “author” of the work should be treated as the general public when the work represents an exercise of the people’s sovereignty. In particular, the court relied on Banks v. Manchester, a Supreme Court decision that held state court judges could not be considered the “author” of a judicial decision for copyright purposes because judges receive a fixed public salary and can have no pecuniary interest in the fruits of their judicial labors, even as the Supreme Court acknowledged that the issue was fundamentally a public policy question.⁸ The Eleventh Circuit pointed out that other courts of appeals have extended the principle to apply to state statutes⁹ and municipal building codes enacted into binding regulations,¹⁰ but not to private listings of motor vehicle values¹¹ or coding systems¹² incorporated into or required by regulation, tax maps created by a county assessor’s office,¹³ or terms of a restrictive covenant entered into by a municipality.¹⁴

The eleventh circuit’s opinion strongly asserted the role of popular sovereignty in the principle that laws cannot be copyrightable because lawmakers and judges are acting as the People’s agents in drafting laws and decisions. As a result, the people must be considered the constructive author of such documents for purposes of copyright law, and any document that falls into this classification must be inherently in the public domain and not subject to copyright. With this principle established, the eleventh circuit identified three essential characteristics that “make the law what it is,”¹⁵ and thereby would make a particular writing or work noncopyrightable:

The law is written by particular public officials who are entrusted with the exercise of legislative power; the law is, by nature, authoritative; and the law is created through certain, prescribed processes, the deviation from which would deprive it of legal effect. Each of these attributes is a hallmark of law. These characteristics distinguish written works that carry the force of law from all other works. Since we are concerned here with whether a work is attributable to the constructive authorship of the People, these factors guide our inquiry into whether a work is law or sufficiently law-like so as to be subject to the rule in Banks.¹⁶

In comparing these characteristics to the annotations in the O.G.C.A., the eleventh circuit concluded that the annotations possessed all three. Specifically, the court identified the fact that the Code Revision Commission held final editorial control of the annotations, provided highly detailed instructions to LexisNexis for what materials must be included and how they are prepared, and exercised direct supervision of LexisNexis during the process. The court also noted how the Georgia General Assembly must formally vote annually to adopt the O.C.G.A. as the official state code, including the annotations. Although the annotations do not purport to carry the force of law in the way that the statutory text does, the court placed weight on the annotations being made an inextricable part of the code and given the state’s approval and authority. The court also noted that Georgia state courts favorably cite to annotations as authoritative sources on statutory meaning and legislative intent, and that the act of the legislature to adopt the code with its annotations transforms them into official comments authored by the same body that wrote the statutes, conferring special significance and meaning on them in comparison to an unofficial annotated code or interpretive document. Finally, the court noted the process by which the Georgia legislature reviews and approves the work of the Code Revision Commission and adopts the code (with annotations) as official is very similar (though not identical) to the legislative process for enacting statutes, insofar as both houses of the Georgia General Assembly must vote on a legislative act which is signed into law by the Governor. This process of bicameralism and presentment, the court found, was an essential element of lawmaking and the exercise of sovereign power, which was present in the adoption of the official code.

Because the annotations in the official code are authored by the right state officials, in the right manner to exercise sovereign power, and have authoritative legal significance, the court held that no part of the O.C.G.A. was copyrightable, and therefore reversed and remanded to the district court with instructions to enter judgment for public resource.

Significant Lessons

The eleventh circuit’s decision should not be interpreted to mean that all works of a state or local government employee are inherently non-copyrightable; in fact, the court took pains to distinguish its three essential characteristics from the bright-line rule enacted by Congress against copyright for any work of the United States government in 17 U.S.C. § 105. Rather, the rule in Banks as applied in Code Revision Commission “is concerned with works created by a select group of government employees, because only certain public officials are empowered with the direct exercise of the sovereign power.”¹⁷ Only those works which meet the three factors identified by the Eleventh Circuit would be uncopyrightable. Although the eleventh circuit’s decision is not binding on Illinois federal courts, the analysis is based in federal copyright law, not in any substantive state law (other than the factual circumstances surrounding the drafting and adopting of the annotations at issue in the case). Finally, municipalities that incorporate third-party standards for building codes, fire protection, or other areas into local ordinances may wish to consider the three factors in deciding how best to adopt the standards in a way that will be most easily accessible to the public.

General attorney, United States Railroad Retirement Board, Office of General Counsel. The statements and views expressed in this article are entirely Mr. Orlowicz’s own, and do not represent the views of the Railroad Retirement Board or the United States Government.