A Work Made For Hire Analysis of Code Revision Commission v. Public.Resource.Org, Inc.

Law Books” by Mr.TinDC is licensed under CC BY-NC-ND 2.0.

Mike Chernoff, Associate Member, University of Cincinnati Law Review

I. Introduction

In the United States, copyright protection can be extended to original works of authorship fixed in any tangible medium.1 However, this protection is restricted for works that have been created as a statement of law.The Supreme Court will be hearing a case in the near future that will consider the annotations associated with the Official Code of Georgia Annotated, which were written by a third party, but approved by the Georgia General Assembly.3  Specifically, the case will consider whether these annotations are an official government edict for purposes of a copyright analysis.

Part II of this article will give further background information on United States copyright laws concerning government works and works made for hire. Part III will discuss this arrangement, and the aforementioned lawsuit involving the Official Code of Georgia Annotated lawsuit, Code Revision Commission v. Public.Resource.Org, Inc., that occurred due to a third party website distributing the Code despite the State of Georgia’s claimed copyright over the annotations.4 Part IV will analyze the copyright claim issue by the State of Georgia by viewing the annotations from a “work made for hire” viewpoint.

II. Copyright Background

The Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”.5 Congress used this power to pass the Copyright Act, which states, “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.”Authorship is a central point of copyright law, and the statute clarifies that “Copyright in a work . . . vests initially in the author or authors of the work.”

Under United States copyright law, copyright protection is “not available for any work of the United States Government.”8 While this law applies to the federal government, there is no mention of state governments in the federal statute.However, the United States Copyright Office has a policy against registering a government edict that has been issued by any state government, including legislative enactments, judicial decisions, or similar types of official legal materials.10 This view has been confirmed by the courts in rulings that have established that with respect to government works, “the People” are the “author.”11 

The Supreme Court first addressed the issue of copyrighting government edicts in Wheaton v. Peters.12 In Wheaton, the Court unanimously held 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.”13 The Supreme Court extended this ruling to state court opinions in Banks v. Manchester.14 Before Banks, an Ohio statute provided for the appointment of an official reporter for the Supreme Court of Ohio and this reporter was tasked with securing a copyright on the court’s decisions.15 The Ohio statute also required the Secretary of State to contract a publisher to have the exclusive right to publish the reports of the official court reporter.16 In Banks, the chosen publisher sued to enforce its copyright interest in the work of the judges of the Supreme Court of Ohio.17 The Court decided against the publisher in Banks because the publisher did not qualify as the author of the works.18 The Supreme Court  explained that the judges could not be the authors of the works because they write opinion in their judicial capacity.19 The Court suggested that preventing the judges from having a copyrightable interest in the opinions was sound public policy and would support the notion that all should have free access to judicial opinions in the interest of  justice.20

III. Case History

In Georgia, the official published set of statutes are collected in the Official Code of Georgia Annotated (“OCGA”).21 Along with the language of the statutes, the OCGA also includes annotations, which consist of history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.22 These annotations are part of the official code, as stated in the OCGA when the code states that the statutes “shall be merged with annotations . . . and [are] published by authority of the state . . . and when so published [are to] be known and may be cited as the ‘Official Code of Georgia Annotated.’”23 However, these annotations are for convenient reference only and are not part of the law.24

Per an agreement with the State of Georgia, these annotations were initially prepared by Mathew Bender & Co., Inc., which is a part of the LexisNexis Group (“Lexis”).25 Under this agreement, Lexis has the exclusive right of publication of the OCGA, but is also responsible for the ongoing publication and maintenance of the OCGA, including the associated editorial, publication, and distribution costs.26 The agreement directs what types of annotations should appear in the OCGA as well as how Lexis should generate and arrange the content.27 The Code Revision Commission (“the Commission”) is tasked with supervising Lexis’s work and has final editorial control over the OCGA.28 The Commission consists of the Lieutenant Governor of Georgia, four members of the Georgia senate, the Speaker of the Georgia House of Representatives, four additional members of the Georgia House of Representatives, and five members appointed by the president of the State Bar of Georgia.29 After the Commission has approved the annotations, the Georgia General Assembly must vote to the OCGA the official codification of Georgia’s laws, and thus, must vote to incorporate the annotations as part of the OCGA.30

This agreement requires Lexis to create a free, unannotated, online version of the OCGA, and the agreement also limits the price that Lexis can charge for the OCGA.31 In return, Lexis has the exclusive right to produce and sell print, CD-ROM, and online versions of the OCGA.32 Lastly, the agreement provides that all the parts of the OCGA that are copyrightable, “shall be copyrighted in the name of the State of Georgia.”33

Public.Resource.Org (“PRO”) is a non-profit organization that aims to improve public access to government records and primary legal matters.34 For example, PRO has published various state statutory codes online.35 PRO purchased all 186 volumes of the print version of the 2013 edition of the OCGA, scanned the documents, and uploaded the documents  to its own website.36 These documents were then freely accessible to the public, and copies of these documents were distributed to other organizations and other websites.37

The Commission sent cease and desist letters to PRO demanding that it no longer publish the OCGA on the ground that it infringed upon the State of Georgia’s copyright in the work.38 After PRO refused to comply with the cease and desist letters, the Commission sued PRO seeking injunctive relief to restrict PRO from publishing the OCGA, resulting in Code Revision Commission v. Public.Resource.Org, Inc.39 PRO responded by denying that the State of Georgia held an enforceable copyright in the OCGA because the OCGA was a law that was in the public domain.40

The United States District Court for the Northern District of Georgia granted partial summary judgment for the Commission and rejected PRO’s motion for partial summary judgment as the court concluded the annotations in the OCGA lack the force of law and are, therefore, not public domain material.41 The District Court issued a permanent injunction against PRO requiring PRO to no longer produce or display the OCGA.42 PRO appealed this decision and the case was heard by the 11th Circuit Court of Appeals.43

On appeal, the Circuit Court reversed the District Court’s judgment and ruled in favor of PRO.44 The Circuit Court reasoned that the annotations in the OCGA were sufficiently law-like to be considered a work of the government and are not copyrightable.45 Due to the Commission’s direct supervision over Lexis’s work on the annotations, the annotations were created by legislative authority.46 The procedural method of approval, outlined in Part II, for the annotations was relevant to the circuit court’s decision.47  The Georgia General Assembly and the Governor both have to approve of the OCGA each year.48 The Circuit Court reasoned that this exemplifies the American system of government, therefore, the entirety of the OCGA is in effect, authored by the Georgia General Assembly.49 The circuit court also concluded this viewpoint was supported by the authoritative control that the Commission exercised over every stage of the creation of the OCGA annotations.50 

On June 24, 2019, the Supreme Court of the Untied States granted the Commission’s petition for a writ of certiorari.51

IV. Discussion

A potential argument in favor of affirming the circuit court’s decision can be reached by analogizing the agreement between the State of Georgia and Lexis to that of a typical work made for hire under United States copyright law. 

When the creator of a work is hired by another entity, the hiring entity may be considered the “author” for purposes of copyrightability in specific situations.52 A situation in which a work would be considered a “work made for hire” is when the work is “specially ordered or commissioned for use as a contribution to collective work,” as part of one of nine areas of subject matter, which include compilations, and when the parties have expressly agreed in a written instrument that the work shall be considered a work made for hire.53 

The State of Georgia contracted with Lexis for the purpose of creating and drafting the annotations that appear in the OCGA.54 A “compilation” is defined as “something gathered together especially from various sources.”55 The OCGA can be considered a gathering of the laws of Georgia into one document. From this viewpoint, the OCGA has characteristics that satisfy the definition of a compilation, thus satisfying the first element of a work made for hire. The agreement also stated that the State of Georgia would be the holders of any copyright that stemmed from the annotations that Lexis had written.56 While this may not expressly state that Georgia and Lexis had agreed to a work made for hire, the effect would be the same as if the agreement had said so. Both elements of a work made for hire are satisfied, and the State of Georgia could be considered the “author” of the annotations.

Due to the State of Georgia’s status as the legal “authors” of the annotations, the Court should treat the annotations as if the Commission had originally written them. In this analysis, the Court should consider whether a statute annotation that was originally written by the Georgia General Assembly should be considered copyrightable. Based on the Court’s reasoning in Banks, annotations written by Georgia’s Commission or General Assembly are not protected by copyright because the officials involved in these bodies would have written the annotations in their elected capacity.57 If annotations written by members of the Georgia General Assembly were hidden from the public under a veil of copyright, then the public would be deprived from the justice that the annotations provide. The result should be no different if the Georgia General Assembly hired an organization to write the annotations in its place. When the annotations are viewed as a work made for hire for the Georgia General Assembly, the result is clear that the state should not gain copyright protection over any portion of the OCGA.

V. Conclusion

Free and open access to state laws are an integral part of a person’s right to justice. The importance of this right establishes the reasoning behind Section 105 of the Copyright Act and the Copyright Office’s policy on government edicts.58  Hiring a third party should not be a loophole to allow a government to restrict a person’s right to access the laws and judicial opinions of their state. The Supreme Court should consider work made for hire copyright protection doctrine to confirm that the agreement between Georgia and Lexis prescribes Georgia as the authors of the annotations for purposes of copyright. Since the Georgia General Assembly would be considered the author of the annotations and the annotations are an addendum to the law, the state should not be afforded copyright protection on the annotations.

  1. 17 U.S.C. § 102 (2019).
  2. See 17 U.S.C. § 105 (2019); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.6(C)(2) (3d ed. 2017).
  3. See Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018).
  4. Id.
  5. U.S.Const. art. I, § 8, cl. 8.
  6. 17 U.S.C. § 102 (2019).
  7. 17 U.S.C. § 201(a) (2019).
  8. 17 U.S.C. § 105 (2019).
  9. Id.
  10. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.6(C)(2) (3d ed. 2017).
  11. Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229, 1236 (11th Cir. 2018).
  12. Id. at 1237; Wheaton v. Peters, 33 U.S. 591, 668 (1834).
  13. See Wheaton, 33 U.S. 591, 668.
  14. Code Revision Comm’n, 906 F.3d at 1237; Banks v. Manchester, 128 U.S. 244, 254 (1888).
  15. Banks, 128 U.S. at 245, 249.
  16. Id. at 246.
  17. See id.
  18. Id. at 252.
  19. Id.at 253.
  20. Id.
  21. Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229, 1233 (11th Cir. 2018).
  22. Id.
  23. Ga. Code Ann. § 1-1-1 (2019)
  24. Ga. Code Ann. § 1-1-7 (2019)
  25. Code Revision Comm’n, 906 F.3d at 1234.
  26. Id.
  27. Id. at 1233.
  28. Id.
  29. Id.
  30. Id. at 1245.
  31. Id. at 1234.
  32. Id.
  33. Id.
  34. Id.
  35. Id. at 1235.
  36. Id.
  37. Id.
  38. Id.
  39. Id.
  40. Id.
  41. Id.
  42. Id.
  43. Id.
  44. Id. at 1255.
  45. Id. at 1243.
  46. Id. at 1233.
  47. Id.at 1253.
  48. Id.
  49. Id.
  50. Id. at 1244.
  51. Id. at 1229.
  52. 17 U.S.C. § 101 (2019).
  53. Id.
  54. Code Revision Comm’n, 906 F.3d at 1234.
  55. Compilation, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/compilation (last visited Sep. 10, 2019).
  56. Code Revision Comm’n, 906 F.3d at 1234.
  57. Banks v. Manchester, 128 U.S. 244, 253 (1888).
  58. See 17 U.S.C. § 105 (2019); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.6(C)(2) (3d ed. 2017).

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