On 27 April 2020, the Supreme Court of the United States (Supreme Court) handed down its decision in Georgia Et Al v Public Resource Org, Inc.

The Supreme Court held that works authored by legislators in their legislative capacity were ineligible for copyright protection. The decision extends the United States “government edicts doctrine” which embodies the principle that “no one can own the law”. This doctrine has been applied in the United States to ensure that judges, who possess the authority to interpret the law, cannot assert copyright protection over works created in their judicial capacity. Now, as a result of the Supreme Court’s decision, the “government edicts doctrine” has been extended to cover works of legislators in their legislative capacity.

Below we set out what happened, what the Supreme Court found, the implications of the decision and we look at whether a similar principle applies in Australia.

What happened?

Official Code of Georgia

The dispute began with the State of Georgia’s (State) one official code, the Official Code of Georgia Annotated (OCGA).

The OCGA includes the text of every statute currently in force in the State and accompanying annotations. The annotations include summaries of judicial and attorney general opinions and a list of related articles and other materials.

What was copyrighted?

The Code Revision Commission (Commission) – the State’s entity composed mostly of legislators who assemble the OCGA – contracted with a division of the LexisNexis Group to draft the annotations under the OCGA. The Commission and LexisNexis Group had agreed that the copyright of the annotations in the OCGA would vest in the State, acting through the Commission.

What brought about the dispute?

Public Resource Org (PRO), a non-profit organisation that facilitates public access to government records and legal materials, distributed for free and without authorisation, copies of the OCGA and its annotations. As a result, the Commission sued PRO for infringing its asserted copyright in the annotations of the OCGA. PRO counterclaimed seeking declaratory judgment that the entire OCGA was in the public domain.

What did the Supreme Court find?

The dispute was first heard by the Federal District Court who held that the annotations of the OCGA were eligible for copyright protection because they had not been enacted into law.

This decision was reversed by the majority of the Supreme Court (5-4 decision) who held that pursuant to the “government edicts doctrine” the annotations of the OCGA could not be protected by copyright. This decision was based on the following reasoning.

• The United States Copyright Act protects “original works of authorships” and as we mentioned earlier, the “government edicts doctrine” embodies the principle that “no one can own the law”. This doctrine developed through case law and has been applied to ensure that judges cannot assert copyright protection over works created in their judicial capacity.
• Applying this principle, the Supreme Court found that because legislators, like judges, have the authority to make the law, legislators also cannot be considered authors of the works they produce in their capacity as lawmakers. Further, it was held that “works” include explanatory and procedural materials that are created in the discharge of judicial or legislative duties.

On this basis, the Commission’s annotations of the OCGA were not protected by copyright as the author of the annotations qualified as the legislator and the Commissioner created the annotations in the discharge of its legislative duties.

What are the implications?

The Supreme Court’s decision makes it clear that:

• Legislators, like judges, cannot assert copyright protection over works created in their capacity as lawmakers.
• Annotations and commentary by legislative bodies are included as “works” that are ineligible for copyright protection.

Do we have the same principle in Australia?

In Australia there is still debate about whether works of judges and legislators performed in their capacity as lawmakers are eligible for copyright protection. Unlike the United States, Australia does not have a “government edicts doctrine” or a similar doctrine. Further, the Australian courts have not reached a firm position as to whether legislators or judges can assert copyright protection over works created in their capacity as lawmakers.

The law relating to copyright in Australia is set out in the Commonwealth Copyright Act (Act). The Act treats copyright as a bundle of exclusive rights that applies to “original expression” in a material form.

There is a special provision in the Act dealing with ownership of copyright relating to “the Crown”.  For example, section 176(2) states:

The Commonwealth or a State is, subject to this Part and to Part X, the owner of the copyright in an original literary, dramatic, musical or artistic work made by, or under the direction or control of, the Commonwealth or the State, as the case may be.

The Act does not state whether judges or legislators can assert copyright protection over their works.  A judge or member of parliament would not likely regard themselves as acting “under the direction or control of” the Commonwealth or State.  In fact, for example, the role of a judge when writing a judgment is to be independent, not acting under government direction.

In section 182A of the Act, there is a small exception that permits the making of one copy of the whole or part of a “prescribed work” in which copyright, including any prerogative right or privilege of the Crown exists.

The Act defines “prescribed works” as:

• an Act, an enactment of the legislature or an instrument;
• a judgment, order or award;
• reasons for a decision of a court; or
• reasons given by a judge.

However, this exception is limited to one copy and does not permit, for example, a publisher making multiple copies for a book.

On another note, some Australian courts have independently dealt with this question of copyright protection over works of judges on their court webpages. For example, the Federal Court of Australia’s webpage states the following copyright disclaimer:

The Commonwealth of Australia owns the copyright under the Copyright Act 1968 (Cth) in all information and material produced by the Federal Court of Australia (the Court) except for judgments and information and other material created by the Judges of the Court.[1]

This copyright disclaimer is quite broad and would most likely cover commentaries by judges.

What can we take away from this?

The United States Supreme Court’s decision has clarified that judicial and legislative materials should be in the public domain and accordingly sets a new standard for the states to follow. This decision will have obvious implications for the way that states compile their official codes.

There is still a way to go until Australia reaches a similar position to the United States on copyright in respect of government and court documents.  As you can see, the position in Australia is still unclear but there is hope that the United States decision will encourage Australia to move forward in this area.

Featured image: Tony Webster, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons.

[1] Federal Court of Australia’s copyright disclaimer: <https://www.fedcourt.gov.au/copyright>.