Eleventh Circuit Holds Code Annotations Are Not Copyrightable

By Sofia Bonfiglio, JD Candidate L’21

In Code Revision Commission v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018), the Eleventh Circuit decided whether the annotations contained in the Official Code of Georgia Annotated (OCGA), which is part of the official codification of Georgia’s laws and enacted by the Georgia General Assembly, may be copyrighted by the State of Georgia.  The statutory text in the OCGA is the official published version of Georgia’s laws.  The court concluded that the annotations in the OCGA were “sufficiently law-like so as to be properly regarded as a sovereign work.” 

Since there is a policy interest in the people having easy access to the laws that govern them, the court found that there can be no valid copyright when legislatures enact laws and courts write opinions officially interpreting the law since they speak on behalf of the People “who are properly regarded as the author of the work.”  To determine whether the annotations in the OCGA were considered law, the court relied on three main characteristics: the" identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created."  When all three markers verify that the work’s creator is someone who is entrusted with sovereign authority, the work carries authoritative weight, and the work was created through the legislative procedures through which sovereign power is usually expressed, the work should be considered to be authored by the People.  Therefore, it is public domain material and not copyrightable. 

Applying this test, the court found that the annotations were created by the legislative authority of the Georgia, like the statutory text.  Furthermore, the Georgia Code Revision Commission, a body that is connected to the Georgia General Assembly and legislative in nature, exercised direct control over the creation of the annotations.  Moreover, the annotations hold authoritative weight explicating and establishing Georgia’s laws.  Additionally, the annotations’ incorporation procedures resemble the legislative process: bicameralism and presentment.  Since the court found that the annotations were legislative works “created by Georgia’s legislators in the exercise of their legislative authority,” it held that the People were the ultimate authors of the annotations resulting in the annotations being “inherently public domain material and therefore uncopyrightable.” 

Since the annotations were not copyrightable, the court did not address the parties’ additional arguments regarding originality and fair use.