Intellectual Property

In Pari Materia: Copyright And Government Content

As it turns out, Uncle Sam has no rights under the Copyright Act, or very limited ones in any event.

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In a week where everyone’s attention is gripped by voting, laws, and voting laws, the question of who owns a copyright on those laws must have crossed a mind or two. And, as luck would have it, we were just recently gifted an opinion that digs deep into the matter of copyright for government content and provides guidance as to whether your garage-printed Ben Franklin-on-the-hundy t-shirts violate Uncle Sam’s rights under the Copyright Act.

As it turns out, Uncle Sam has no rights under the Act, or very limited ones in any event. While, since time immemorial, it was a truism that copyright “vests initially in the author or authors of the work” (shout-out to 17 U.S.C. § 201(a)), there is an express exemption for any works for which the U.S. government is the author. Specifically, 17 U.S.C. § 105 provides that “[c]opyright protection under this title is not available for any work of the United States Government.” So, any work created by the U.S Government is in the public domain and free for all to exploit and monetize at no charge (so long as the use is made in the U.S.; notably, the U.S. Government reserves the right to claim copyright in its works to the extent they are used overseas).

In the case Code Revision Commission for General Assembly of Georgia v. Public.Resource.Org, Inc., the Eleventh Circuit grappled with a situation that fell within the margins of the above-discussed rule. It involved the “question of whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, may be copyrighted by the State of Georgia.” The Eleventh Circuit noted that this query involved “confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives.” To illustrate as much, the court cites precedent dating back to the 1880s discussing copyright for government and quasi-government works.

To address the question in the context of Georgia-authored content, it is important to note that while Section 105 refers to works of the federal government, the exemption extends to each of the United States, per the Copyright Office’s 1961 Register’s Report, which stated that the rule also prevents “copyright in the text of state laws, municipal ordinances, court decisions, and similar official documents.” As such, it was beyond peradventure that the Georgia state codes before the Eleventh Circuit were outside the purview of copyright protection. The annotations to those codes, though, presented a closer call, one so close that the district court found protection to exist.

The Eleventh Circuit disagreed, grounding their conclusion in the definition of the term “author” as it is used in the Copyright Act. They find that the term “author” should be construed to mean “the People,” a sovereign group encompassing the country’s populace that is separate and distinct from the government (a finding that seems especially apposite during recent times). Thus, since the government is not the People, and only People can be authors, the government cannot be a legal author under the Copyright Act.

Approaching it more metaphorically, the court notes that government lawmakers and drafters are but servants of the People, and “when the legislative or judicial chords are plucked it is in fact the People’s voice that is heard.” Thus, it is the People who own, or should at least have the privilege of using, any works created by their elected representatives. And this would include not only the codes, but any annotations or ancillary material added to same by the government. On this basis, the Eleventh Circuit conclude that no valid copyright interest can be asserted in any part of the OCGA, which is “so enmeshed with Georgia’s law as to be inextricable.”

Another way of thinking of the matter is that government works are simply works-for-hire whose works accrue to the benefit of the employer, in this case the government, and are thus available for free exploitation by the those comprising the employer’s members, viz., the People.

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This is a ruling that could raise concerns for companies like Lexis and Westlaw, whose offerings, for which they charge hefty fees, include annotations attached to underlying legal cases and codes. Should their content be adjudged public domain material based on its “inextricable enmeshment” with government-created content, it would be a great blow. But, the Eleventh Circuit found that the OCGA was public domain because it was government created. And the annotations authored and offered by these private companies would most likely be distinguishable and outside the scope of this ruling.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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