Recall that before Covid (so about 300 years ago), there was an interesting copyright case percolating through the federal courts. The question concerned the Official Georgia Code Annotated (OGCA), which contains the text of the Georgia Code as well as various annotations. There were two potentially conflicting principles at work. On the one hand, the law is public domain. On the other hand, annotations and supplemental materials by third parties are often copyrightable. Georgia managed to produce a hybrid system: the legislature established a code commission, which outsourced most of the annotations work to Matthew Bender Corp, which was granted an exclusive license to sell it. At the same time, the legislature every year officially adopted the GCA, and it was the authoritative source for the Georgia Code in everything from legislative proceedings to cases to public reference. It was even published with the state seal attached.
The 11th Circuit ruled that OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4). Today, in an opinion by Justice Roberts, the Supreme Court agreed, though for somewhat different reasons. The SCOTUS opinion basically argues that the relevant question is whether the “author” of something is a judge or legislator; answers that the OGCA is reasonably the work of a legislator, and thus uncopyrightable.
