Code Revision Commission v. Public.Resource.Org and the Fight Over Copyright Protection for Annotations and Commentary

Abstract

This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.

The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the code revision process in Georgia, and the Code Revision Commission v. Public.Resource.Org litigation. It next analyzes the Eleventh Circuit’s three related reasons for concluding that the annotations are law-like: the identity of the public officials who created the work; the authoritativeness of the work; and, the process for creating the work. This analysis is followed by a discussion of the merger doctrine, the use of the term ‘merger’ in section 1-1-1 of the OCGA, and a brief summary of Supremacy Clause concerns. The article’s conclusion is that the Eleventh Circuit should be reversed by the United States Supreme Court.

Keywords: copyright, code, statutes, law, annotations, Official Code of Georgia Annotated, merger doctrine, Supremacy Clause, intellectual property, LexisNexis, work for hire

JEL Classification: K39