The Uncopyrightability of Edicts of Government

30 Pages Posted: 31 Oct 2019 Last revised: 13 Nov 2019

See all articles by Shyamkrishna Balganesh

Shyamkrishna Balganesh

University of Pennsylvania Law School

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: October 16, 2019

Abstract

This amicus brief filed in the Supreme Court appeal of Georgia, et al., v. Public.Resource.Org., explores the interplay of copyright law and the edicts of government doctrine. The “edicts of government” doctrine was first validated by the U.S. Supreme Court in a series of nineteenth century cases. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888); Callaghan v. Meyers, 128 U.S. 617 (1888). While the doctrine has never been directly recognized in the express wording of the copyright statute, it is nevertheless firmly rooted in foundational copyright principles that are themselves reflected in the text of the statute.

Three foundational copyright principles buttress the doctrine. First, copyrightable authorship does not extend to official announcements of law, the hallmark of edicts of government. Authorship as requires personalization, an attribute that is antithetical to official pronouncements of law, which are generated in an impersonal and ex officio manner. Second, all edicts of government, as legal texts, are methods of operation, rendering them uncopyrightable. Third, authentic statements of law entail the merger of idea and expression insofar as the expression underlying edicts of government are capable of being expressed in only a limited number of ways in order to preserve its authenticity.

Consequently, the Official Code of Georgia (O.C.G.A.) is not copyrightable. Petitioners concede that the statutory content of the O.C.G.A. is uncopyrightable. The annotations incorporated into the O.C.G.A. by the state legislature bear the imprimatur of the state and are therefore produced under the ostensible authority of the state, which renders them an edict of government. Contrary to Petitioners’ argument, an edict does not need to have the force of law to qualify as an uncopyrightable edict of government. The Supreme Court’s precedents contradict this position. Instead, faithful reading of these precedents suggest that something becomes an uncopyrightable edict of government when it is produced under the ostensible authority of the state and thus receives a presumptively official status, owing to its endorsement by the state. The process by which the annotations contained in the O.C.G.A. are adopted and merged with the statutory content therein constitutes the exercise of such ostensible authority, rendering the O.C.G.A. an uncopyrightable edict of government.

Keywords: government edicts, copyright, authorship

JEL Classification: K11

Suggested Citation

Balganesh, Shyamkrishna and Menell, Peter S., The Uncopyrightability of Edicts of Government (October 16, 2019). U of Penn Law School, Public Law Research Paper No. 19-40; UC Berkeley Public Law Research Paper . Available at SSRN: https://ssrn.com/abstract=3477564 or http://dx.doi.org/10.2139/ssrn.3477564

Shyamkrishna Balganesh (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
215-573-7780 (Phone)

HOME PAGE: http://sbalganesh.law.upenn.edu

Peter S. Menell

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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