Non-Profits Ask Supreme Court to Decide What States Can – and Cannot – Copyright

Daniela Abratt reflects on the conflict between the First Amendment and a state’s ability to copyright the text of its laws.

What, if anything, can a government copyright? A handful of non-profit organizations are pushing the U.S. Supreme Court to answer that question and provide uniform guidance to states with varying definitions. While it is well-established that the text of laws and court opinions are authored by government entities on behalf of the people—and therefore are not subject to copyright protection—what about annotations to a statutory code?

In November 2018, the Eleventh Circuit Court of Appeals in State v. Public.Resource.Org Inc., Case No. 18-1150, ruled that, in Georgia, these annotations are part of the official statutory code and therefore qualify as legislative works created by Georgia’s legislators in the exercise of their legislative authority.  Accordingly, the materials are part of the public domain and cannot be copyrighted.  As the court explained:

Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. . . . As a consequence, we conclude 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.

Now, Georgia is appealing to the Supreme Court for a different ruling.

In an amicus brief, the non-profit organizations, which include C-Span, the American Library Association, and 11 other public policy and research organizations, urge the high court to accept Georgia’s petition for review.  They agree with the Eleventh Circuit’s opinion, but they press the court to review the case to provide needed clarity and uniformity to the states’ definitions of the term, “government edict” – meaning, the works exempt from copyright protection.  This is critical, the amici argue, because “the question, at bottom, is about the relationship between a sovereign and its citizens that inheres in any system based on the rule of law.”

Specifically, in Georgia, the statutory text is free and available to the public; however, these annotations, which serve as official explanations to the statutes, are available only upon a paid subscription service.  The amici argue that such a scheme prevents citizens from accessing—and understanding—the laws which govern them.

Significantly, this issue highlights the often tense relationship between the First Amendment and copyright law. While copyright serves the important purpose of protecting authors’ rights, including their ability to control the copying and distribution of their works, in this particular situation, broad copyright protection of government information prevents the public from accessing the information.  It also blocks journalists, librarians, and other educators from printing and distributing the information.  Citizens cannot conform their conduct to the law if they do not understand what the law proscribes.  And reporters cannot investigate the government’s actions without the ability to scrutinize and distribute excerpts of the laws the government passes.

The important public policy considerations here are evident. But whether the Supreme Court accepts review may depend on just how varied the states’ definitions of “government edict” actually are. Only time will tell.

Daniela B. Abratt is an attorney in the Fort Lauderdale office of Thomas & LoCicero with a practice concentration in media and communications law, including defamation and invasion of privacy. She also focuses on business litigation and intellectual property matters.

With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida law firm that is widely known, respected and committed to free speech and a free press.  The firm represents the industry’s leading electronic and traditional publishers, as well as individual journalists, bloggers and influencers of social media on issues ranging from news gathering to invasion of privacy, from defamation to pre-publication review.  At the heart of the firm’s mission is to champion free speech and defend journalism every day.