Authoritative work made by the agents of the people in the legitimate exercise of delegated, sovereign power is not eligible for copyright protection
November 30, 2018
Code Revision Commission, (for the Benefit of and on behalf of General Assembly of Georgia, State of Georgia) v Public Resource Org, Inc
United States Court of Appeals for the Eleventh Circuit
Marcus, Hull, CJJ; Bucklew, DJ
October 19, 2018
Reported by Faith Wanjiku
Intellectual property law-copyright law-annotations-whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, could be copyrighted by the State of Georgia-Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the United States Code, § 102
Statutes-law making process-annotations-Official Code of Georgia Annotated-what was the process by which the annotations contained in the Official Code of Georgia Annotated were created?
Intellectual property law- copyright-eligibility of copyright protection-what factors needed to be considered to guide on eligibility of copyright protection of work-Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the United States Code, § 102
Words and phrases-merge-definition of-to lose or cause to lose identity by uniting or blending; to combine or unite into a single unit -Random House Dictionary of the English Language 1980; to become combined into one; to lose identity by absorption or intermingling-Webster’s Third New International Dictionary 1981;to be absorbed and disappear, to lose character or identity by absorption into something else; to join or blend; to combine to form a single entity-Oxford English Dictionary 3rd edition 2001
The present appeal entailed the Official Code of Georgia Annotated (OCGA) which was an annotated compilation of Georgia statutes that had been published annually since 1982. The statutory text contained in the OCGA had been enacted and had the effect of statutes enacted by the General Assembly of Georgia.
The Commission (respondent/plaintiff) was a body established by the Georgia General Assembly in 1977 that was originally tasked with undertaking the recodification of all of Georgia’s laws, a project that had not been done since 1933.Following its successful recodification of Georgia law and the publication of the OCGA in 1982, the respondent was then responsible for updating the OCGA and supervising Lexis’s editing and publication of the OCGA.
Public.Resource.Org (appellant/defendant) was a non-profit organization with a mission of improving public access to government records and primary legal materials.In 2013 the appellant purchased all 186 volumes of the print version of the OCGA and its supplements, scanned them, and uploaded them to its website to be freely accessible to the public. It also placed digital copies of the OCGA onto USB drives and mailed them to various Georgia legislators. Additionally, the appellant distributed copies of the OCGA to other organizations and on other websites in order to facilitate its further dissemination by other parties.
On multiple occasions the respondent sent letters to the appellant demanding that it cease and desist from publishing the OCGA on the grounds that publication infringed on the State of Georgia’s copyright in the work. The appellant refused to comply, arguing that there was no valid copyright in the OCGA because the law could not be copyrighted. The respondent, acting on behalf of the Georgia General Assembly and the State of Georgia, sued the appellant on July 21, 2015 in the United District Court for the Northern District of Georgia. The suit sought injunctive relief against the appellant’s widespread and unauthorized copying and distribution of the copyrighted annotations in the Official Code of Georgia Annotated through the distribution of thumb drives containing copies of the OCGA and the posting of the OCGA on various websites.
The appellant counterclaimed seeking a declaratory judgment that the State of Georgia had no valid copyright in any portion of the OCGA because the OCGA was in the public domain.The trial court concluded that because the annotations in the OCGA lacked the force of law, they were not public domain material.It further entered a permanent injunction against the appellant enjoining it from all unauthorized use, including through reproduction, display, distribution, or creation of derivative works, of the OCGA. The injunction also ordered the appellant to remove all versions of the OCGA from its website, and to cease any fundraising activities connected with its publication of the OCGA.The Court of Appeal was presented with the question of whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, could be copyrighted by the State of Georgia.
i. Whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, could be copyrighted by the State of Georgia.
ii. What was the process by which the annotations contained in the Official Code of Georgia Annotated were created?
iii. What was the nature of the new work created when the Georgia General Assembly explicitly chose to merge the annotationscontained in the Official Code of Georgia Annotated with statutory text?
iv. What factors needed to be considered to guide on eligibility of copyright protection of work?
Relevant Provisions of the Law
Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the United States Code
§ 102 – Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
- In order to establish a prima facie case of copyright infringement, a plaintiff had to show that:
(a)it owned a valid copyright in the work; and
(b) defendants copied protected elements from the work.
A valid copyright registration constituted prima facie evidence of the validity of the copyright. Once the plaintiff had produced a valid copyright registration, the burden shifted to the defendant to establish that the copyright was invalid.
- Authorship was central to the statutory scheme. Only original works of authorship were eligible for copyright protection. Authorship generally determined who had a possessory interest in a work. Copyright in a work vested initially in the author or authors of the work as provided in § 201(a) of the Copyright Act (the Act). Authorship allowed a person to claim copyright protection regardless of whether the work had been registered with the United States Copyright Office. Copyright inhered in authorship and existed whether or not it was ever registered. In consequence, to ascertain who held a copyright in a work, ordinarilythe identity of the author had to be ascertained.
- The meaning of authorship took on special significance in cases like that that the copyrightability of a government edict was considered. A long line of authority, stretching back more than 180 years, established that, with respect to certain governmental works, the term “author” should be construed to mean “the people,” so that the general public was treated as the owner of the work. That meant that a work subject to the rule was inherently public domain material and thus not eligible for copyright protection.
- Under democratic rule, the people were sovereign, they governed themselves through their legislative and judicial representatives, and they were ultimately the source of the law. Under that arrangement, lawmakers and judges were draftsmen of the law, exercising delegated authority, and acting as servants of the people, and whatever they produced the people were the true authors. When the legislative or judicial chords were plucked it was in fact the people’s voice that was heard. Not surprisingly, then, for purposes of copyright law, that meant that the people, as the constructive authors were also the owners of the law. And in that way, any work of which the people were the constructive authors was intrinsically public domain material and was freely accessible to all so that no valid copyright could ever be held in it.
- The government proceeded directly from the people; was ordained and established, in the name of the people and was emphatically and truly, a government of the people. In form, and in substance, it emanated from them. Its powers were granted by them, and were to be exercised directly on them, and for their benefit.
- Lawmaking bodies in the country enacted rules and regulations only with the consent of the governed. The very process of lawmaking demanded and incorporated contributions by the people, in an infinite variety of individual and organizational capacities. In performing their function, the lawmakers represented the public will, and the public were the final ‘authors’ of the law. The court discerned that there were strong public policy interests in giving the public unfettered access to the law. Public ownership of the law meant precisely that the law was in the public domain for whatever use the citizens chose to make of it. Citizens could reproduce copies of the law for many purposes, not only to guide their actions but to influence future legislation, educate their neighborhood association, or simply to amuse.
- There were certain things that made the law what it was. The law was written by particular public officials who were entrusted with the exercise of legislative power; the law was, by nature, authoritative; and the law was created through certain, prescribed processes, the deviation from which would deprive it of legal effect. Each of those attributes was a hallmark of law. Those characteristics distinguished written works that carried the force of law from all other works.
- The respondent exercised direct, authoritative control over the creation of the OCGA annotations at every stage of their preparation. The respondent provided initial instructions to Lexis, directly supervised Lexis’s work throughout the preparation process, and had to give its final editorial assent to theannotations before they could become part of the OCGA. In that way, the respondent undeniably controlled the creation of the OCGA annotations.
- The respondent intimated involvement in the creation of the annotations was of great significance. That was because a close examination of the nature of the respondent confirmed that it was for all intents and purposes an arm of the Georgia General Assembly. Thus, not only was the respondent funded by legislative branch appropriations, but its staff was drawn from an office that was itselfan agency of the Georgia General Assembly.The OCGA annotations, once completed, were subject to the approval not only of the respondent, but also to the approval of the Georgia General Assembly. The General Assembly actually voted and had to vote to make the OCGA the official codification of Georgia’s laws and, in doing so, also voted to incorporate the annotations as part of the OCGA. The OCGA annotations were not only authored at the direction and under the close supervision of the Georgia General Assembly, but they also obtained their peculiar status as official annotations because they were adopted annually by the General Assembly.
- The Georgia General Assembly was not simply composed of ordinary government employees but rather of public officials whose official duties peculiarly included the direct exercise of sovereign power. The legislative power of the state would be vested in a General Assembly which would consist of a Senate and a House of Representatives. Of the many government workers employed by the state of Georgia, the creators of the OCGA annotations were unique insofar as they were entrusted by the sovereign with legislative power.
- While not carrying the force of law in the way that the statutory portions of the OCGA did, the annotations were law-like in the sense that they were authoritative sources on the meaning of Georgia statutes. Having been merged by the General Assembly with the statutory text into a single, unified edict, stamped with the state’s imprimatur, and created and embraced by the same body that wrote the text that they explicated, the annotations had been suffused with powerful indicia of legal significance that was impossible to ignore. The annotations cast an undeniable, official shadow over how Georgia laws were interpreted and understood. Indeed, Georgia’s courts had cited to the annotations as authoritative sources on statutory meaning and legislative intent. The annotations’ authoritativeness made them closely analogous to the types of works that ordinarily represented an exercise of sovereign authority. The nature of the work, like the identity of its creator, therefore impelled the court further toward the conclusion that those annotations were attributable to the constructive authorship of the people.
- The nature of the OCGA annotations was spelled out in some detail by Georgia’s General Assembly. While disclaiming any legal effect in the annotations, the Georgia law providing for the creation of the OCGA also stated that the statutory portion of such codification would be merged with annotations, captions, catchlines, history lines, editorial notes, cross-references, indices, title and chapter analyses, and other materials.
- In particular, Georgia law provided that the merged text would be published by authority of the state and when so published would be known and could be cited as the Official Code of Georgia Annotated. Thus, the product of the merger was an official state publication, labelled and cited as the authoritative embodiment of the laws of the State of Georgia.
- It of course remained true that portions of the OCGA clearly carried the force of law while OCGA § 1-1-7 disclaimed any legal effect in the annotations. Yet the significance of the legislature’s decision to merge those two things into a single edict remained. The Georgia legislature was not required to merge the annotations with the statutes in order to create the OCGA, which it then stamped with the imprimatur of the State. But the bicameral legislature chose to do so. By combining those two components into a unified whole, their attributes had been intermingled and their distinct character altered. While that did not mean that the annotations, by virtue of appearing alongside statutory text, were suddenly possessed of binding legal effect, it did mean that their combination with the statutory text imbued them with an official, legislative quality.
- The statutory text, having been merged with those legislatively authored expositions on the meaning of Georgia law, had to be read in pari materia with them. The annotations’ combination with the statutes meant that any understanding of the statutory text arrived at without reference to the annotations was axiomatically incomplete. Because Georgia law told that the official codification of Georgia statutes contained not only statutory text but also annotations that had been combined and unified with the statutory text into a single edict, a full understanding of the laws of Georgia necessarily included an understanding of the contents of the annotations. In that way, the annotations were clearly laden with legal significance.
- Their significance was strengthened further by the legislature’s decision to label the unified whole “Official.” The OCGA was not simply one of a number of competing annotated codifications of Georgia laws. It did not stand on equal footing with West’s annotated Georgia code. Rather, it was the official codification of Georgia laws, stamped with the imprimatur of the state. That status necessarily caused the annotations to cast a long shadow over how the statutory portions of the OCGA were understood. Because those were the official comments to the Code, they were to be read as authoritative in a way that annotations ordinarily were not.
- Demonstrating the importance of the state’s decision to stamp the OCGA with its imprimatur, the very first annotation in the very first section of the OCGA favorably cited to a court case that warned that attorneys who cited unofficial publication of 1981 Code did so at their peril.Similarly, the importance the Georgia legislature attached to its branding of the Code as “Official” was further demonstrated by its enactment of a law allowing the publisher of the official Code to use the state emblem on the cover of the publication, whereas all other private parties were prohibited from using the state emblem in any context. Thus, while stamping the annotations with the state’s imprimatur and labelling it official did not suddenly elevate the annotations to the status of binding law, it too enhanced their already potent cachet in a way that was undeniable and also impossible to ignore.
- The state courts frequently had characterized OCGA comments as conclusive statements about statutory meaning and legislative intent.The nature and authoritativeness of the work, like the identity of the author, were material in determining whether the work was attributable to the constructive authorship of the people. After all, it was not only emphasized on the identity of the creator of the work but also the nature of the work, reasoning that the work was uncopyrightable precisely because it was an authentic exposition and interpretation of the law binding on every citizen.
- The law, as an authoritative work that governed people’s lives, was uncopyrightable. The decisions and opinions of the justices were the authorized expositions and interpretations of the laws, which were binding upon all the citizens. Justice required that all should have free access to the opinions, and it was against sound public policy to prevent that, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices.
- Whether or not a work was assigned the authoritative weight associated with law was deeply intertwined with the question of whether the work was made by the agents of the people in the legitimate exercise of delegated, sovereign power. No legislative act contrary to the Constitution could be valid. To deny that, would be to affirm, that the deputy was greater than his principal; that the servant was above his master; that the representatives of the people were superior to the people themselves; that men acting by virtue of powers, could do not only what their powers did not authorize, but what they forbade. As a result, the authoritativeness of a work was probative on the question of whether a work was created in an exercise of sovereign power. Thus, in addition to whether the work was prepared by a judicial or legislative body, an examination of the nature of the work, which was another way of asking whether it carried authoritative weight, could indicate whether the work was uncopyrightable.
- As was the case with the identity of the creator of the work and the nature of the work, fundamental principles that governed how sovereign power was exercised under a republican form of government suggested that the process by which an edict was promulgated was probative as well on the question of whether a work was created through the exercise of such power.
- Just as an action was not deemed a legitimate exercise of sovereign power if it was undertaken by the wrong official, so too it could be invalid if undertaken outside the proper procedural channels. The converse followed naturally: if an action was undertaken through the ordinary procedural channels by which the sovereign power was exercised, it was more likely that the action represented an exercise of sovereign power.
- A work made by a judge outside the normal channels by which judicial action was taken would not be subject to copyrightability. The very process of lawmaking demanded and incorporated contributions by the people. It was therefore fair to say that, just as the justices of the Supreme Court of Ohio had authored the work in question in the discharge of their judicial duties, the Georgia legislature’s use of bicameralism and presentment to adopt the annotations as their own and merge them with statutory text indicated that the work was created by the legislators in the discharge of their official duties.
- When the wrong public official exercised a power delegated in the law, when the power exercised was of a type not contemplated by the law, or when the power was exercised outside the procedural channels prescribed by the law, the act could not be considered a valid exercise of the sovereign power. From those principles, the corollary logically followed: when the action taken was of the type entrusted by the people to their agents, when it was wielded by a public official whose assigned duties included the exercise of sovereign power, and when it was exercised pursuant to constitutionally designated processes, it more likely represented an exercise of the sovereign authority.
- The OCGA annotations were created by Georgia’s legislative body, which had been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations did not carry the force of law in the way that statutes or judicial opinions did, they were expressly given legal significance so that, while not law, the annotations undeniably were authoritative sources on the meaning of Georgia statutes. The legislature had stamped them official and had chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly had made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia required having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia was effected by the legislative process namely bicameralism and presentment that was ordinarily reserved for the exercise of sovereign power.
- The annotations in the OCGA were attributable to the constructive authorship of the people. To advance the interests and effect the will of the people, their agents in the General Assembly had chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators had acted as draftsmen giving voice to the sovereign’s will. The resulting work was intrinsically public domain material, belonging to the people, and, as such, had to be free for publication by all. As a result, no valid copyright could subsist in those works.
- The judgment of the district court was therefore reversed, judgment entered for the appellant, the district court’s order granting the State of Georgia injunctive relief vacated and remanded for further proceedings consistent with the opinion.
Relevance to the Kenyan Situation
The Constitution of Kenya, 2010 provides in article 35 (1) (a) that every citizen has the right of access to information held by the State and sub-article (3) provides that the state shall publish and publicize any important information affecting the nation.
There is also the Access to Information Act, No. 31 of 2015 whose one main object and purpose is to give effect to the right of access to information by citizens as provided under article 35 of the Constitution.
The Copyright Act, No. 12 of 2001 provides in section 2 that literary work does not include a written law or a judicial decision.
However, just like the appellant (Public Resource Organization) in the US case, in Kenya we have the National Council for Law Reporting which is a service state corporation, whose mandate is to monitor and report on the development of Kenya’s jurisprudence through the publication of the Kenya Law Reports; to revise, consolidate and publish the Laws of Kenya; and to undertake such other related publications and perform such other functions as may be conferred by law. The organization under its creative commons licence believes that public legal information is common property and should be accessible to all.
In Kenya there is no code that contains a compilation of merged statutes and their meanings created by Parliament such as the Official Code of Georgia Annotated. However if Parliament were to make such a code, it would be in the public domain as provided for in Kenyan law and thus not copyrightable. As held in the US case, lawmakers and judges were draftsmen of the law, exercising delegated authority, and acting as servants of the people, and whatever they produced the people were the true authors thus making that produced work uncopyrightable.