Published 09/03/2021 by CIONCA IP TEAM (SE)
The state of Georgia has an official code known as the Official Code of Georgia Annotated (OCGA). This single code is the state’s only code under its authority. The OCGA contains annotations, case notions, commentaries, excerpt from law review articles, opinions of state bars among others. Georgia law states that annotations in the OCGA do not have the force of law.
The OCGA was sent to Mathew Bender & Co., an operating division of LexisNexis Group, a private legal research company (the “Company”). An agreement was reached between the company and the state of Georgia. The agreement entails that the company should have exclusive copyrights to sell, distribute and publish the OCGA. The limitation to the rights was that only unofficial copies would be published online. This online copy would be available to the public at a limited price.
In 2013, Public resources organization (a non-profit organization), purchased and digitized a copy of the OCGA. The major aim of the organization is to promote public access to government records and legal materials. As agreed by LexisNexis and the state of Georgia, some numbers of unannotated copies of the OCGA were to be made available to some states and public institutions. Thus, Public resources uploaded and made the OCGA available to the public.
In 2015, the state of Georgia filed a suit against Public resources claiming direct and indirect infringement of copyrights. This was after several cease-and-desist letters had been sent to Public resources. On the contrary, Public resources counterclaimed that the document was already available in the public domain. The state of Georgia was represented by its commission that revised the code.
At the Federal District Court, Public resources admitted to the dissemination and publication of the OCGA. But they contested the claim that the state of Georgia's copyrights is enforceable on the code. The Court ruled in favour of the commission. This led to an appeal to the Eleventh Circuit of the United States Court of Appeal. The Eleventh Circuit reversed the decision of the District Court. This was because the constructive authorship of the code belonged to the public.
On further appeal to the US Supreme Court, the commission was found as the statutory author of the OCGA. This was despite that LexisNexis subsequently authored the annotations in accordance with the Copyrights Act’s provision concerning authorship in the case of work-for-hire agreements.
The argument made by the state of Georgia that the annotations lacked the force of law, was non-binding and non-authoritative for copyrights protection was upheld by the Apex court.
The reasoning of the Supreme Court is clear. That is, the commission was an arm, created, funded and staffed by Georgia's legislature. Thus, materials produced by the commission is deemed public material. Therefore, could not be copyrighted by any individual if produced by the commission.
The doctrine of government edicts was applied. That is, documents from the Official duties of public officials could not be copyrighted. It has the force of law. This is unlike other documents that could be copyrighted when produced.
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CIONCA IP TEAM (SE)9/3/2021 4:56:24 PM
On Copyrights of Annotations.
Marin Cionca, Esq.
Registered Patent Attorney
USPTO Reg. No. 63899
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