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We are delighted to bring to our readers an insightful post by Dr. Arul George Scaria on the US Supreme Court’s recent decision in Georgia et al., v. Public.Resource.Org holding that annotations to the official code of Georgia are not copyrightable. In this post, he makes a case for the adoption of the government edicts doctrine by Indian courts to foster greater ‘access to law’ in India.
Dr. Scaria is an Assistant Professor of Law and Co-Director of the Centre for Innovation, Intellectual Property and Competition (CIIPC) at National Law University, Delhi. He did his doctoral research (2008 – 2011) at the International Max Planck Research School for Competition and Innovation, Germany, and post-doctoral research (2012 to 2014) at the Catholic University of Louvain (UCL), Belgium. His key areas of interest and specialisation are science and technology policies, open movements, intellectual property law, and competition law. He has two single authored books to his credit, Ambush Marketing: Game within a Game (2008) and Piracy in the Indian Film Industry: Copyright and Cultural Consonance (2014). Dr. Scaria has previously written guest posts for us here, here and here.
US Supreme Court’s Decision on Copyrightability of Annotations to Official Code of Georgia: Can it Inspire the Access to Law Movement in India?
Dr. Arul George Scaria
In a landmark decision that can inspire access to law movements across the globe, the Supreme Court of the United States (SCOTUS) has recently held in Georgia et al., v. public.resource.org that annotations to the official code of Georgia are not copyrightable. This post is intended to discuss the relevance of this decision and some of the lessons it might have for re-imagining copyright jurisprudence in India.
Facts
The Official Code of Georgia Annotated (OCGA) contains every statute currently in force in the state of Georgia, along with various annotations to the provisions in those statutes. The annotations to the statutory provisions generally include summaries of relevant case-laws relating to those statutory provisions, opinions of the state attorney general, list of relevant law review articles, and notes from editors regarding the historical origins of those statutory provisions. The annotations are non-binding in character and this aspect is explicitly mentioned in OCGA. This document is compiled under the supervision of the Code Revision Commission (Commission), a state entity which comprises primarily of the members of Georgia Senate or House of Representatives. In furtherance to a work-for-hire agreement with the Commission, OCGA is currently produced by Matthew Bender & Co. Inc., a division of the LexisNexis Group. As per the agreement, the copyright in the OCGA is retained by the State of Georgia acting through the Commission. Lexis Nexis, which has the exclusive right to publish, distribute and sell OCGA is currently selling the print version of OCGA for $412.
The respondent, Public.Resource.Org (PRO), is a renowned non-profit organisation working towards making government information more accessible. PRO has been sharing digital versions of OCGA through various websites and it has also distributed copies of OCGA to various organisations and Georgia officials. The Commission sent cease-and-desist letters to PRO claiming that PRO was infringing the copyright in OCGA and it initiated a copyright infringement suit when it noticed that PRO was continuing the dissemination activities. PRO filed a counter-claim seeking a declaratory judgment that the entire OCGA, including the annotations, are not copyrightable.
Decision of the District Court and the Eleventh Circuit
The District Court ruled in favour of the Commission, primarily on the ground that that the annotations were “not enacted into law” and therefore those annotations are copyrightable. When PRO filed an appeal before the Court of Appeals for the Eleventh Circuit (CA11), it reversed the order of the District Court under the government edicts doctrine. This doctrine, which is not explicitly mentioned anywhere in the US copyright statue, was endorsed by the SCOTUS through a series of decisions in the 19th century and it is supported by some of the fundamental principles expressly embodied in the US copyright statute.[i] In a well-articulated judgement, CA11 held that “the people” are the constructive authors of the law in a democracy and the judges and the legislators are draftsmen who are just exercising delegated authority. By looking at three important factors which are relevant in determining whether a work is attributable to the constructive authorship of the People (identity of the public official who created the work; nature of the work; and the process by which the work was produced), CA11 reached the conclusion that annotations in OCGA are government edicts authored by the People and therefore not copyrightable.[ii] The Commission appealed before the SCOTUS and it was granted certiorari.
Decision of the Supreme Court
In what many commentators have described as an “unusual lineup” of conservative and liberal judges in a 5:4 judgement (some commentators also notice that it could be seen as younger generation of judges v. older generation of judges!), the majority has agreed with CA11 that the annotations in OCGA are ineligible for copyright protection under the government edicts doctrine. But the reasoning used by the majority in reaching that conclusion is different from those relied on by CA11. The majority held that, as per the precedents that explain the government edicts doctrine, the focus of inquiry in analysing the applicability of government edicts doctrine should be on who authored the work (whether the work was created by judges or legislators) and whether it was created in the course of their official duties (judicial or legislative duties). The majority observed that under the government edicts doctrine, judges and legislators cannot be considered as the “authors” of the work they produce in the course of their official duties. The majority held that this principle should apply irrespective of whether the work in question had the force of law or not.
When applying this principle to the facts of the case, the majority noted that the government edicts doctrine would be applicable to the annotations in question, as they were authored by the Commission, which is an arm of the legislature, in the course of its official duties. The court looked at different factors including the funding of the Commission, the staff of the Commission, and the process through which the annotations gets merged with the statutory text while determining whether the Commission functions as an arm of the legislature during the creation of those annotations. The majority also noted that the Commission is discharging “legislative duties” when they publish those annotations alongside the statutory provisions. The dissenting opinions written by Justice Thomas (pages 22-38) and Justice Ginsburg (pages 39-42) disagreed with the views of the majority and they are certainly worth reading for getting the counter perspectives on the majority’s interpretation of the doctrine.
Potential Insights for India
To the best of my knowledge, no courts in India have so far explicitly used the government edicts doctrine in any of the copyright cases. The ways in which CA11 and the majority of the SCOTUS have interpreted this doctrine to invalidate the copyright claims over annotations illustrate the scope of using such a doctrine in making law more accessible to all. This doctrine can be helpful in addressing some of the long-standing challenges in Indian copyright law and let me share three examples in this regard.
The first is with regard to the question of copyrightability of statutes in India. Some years back, I had written a post about the copyrightability of statutes in India and explored the question of why we should liberate statutes from the clutches of copyright law. As I tried to illustrate in that post, statutes can be considered as literary works under copyright law and the government could enforce copyright protection over statutes, as they are “government works” under Indian copyright law (see section 2(k)). While that post had argued that India requires a broader exception for reproduction or publication of an Act of a legislature, and that section 52(1)(q) of the Copyright Act may be amended in this regard to enable better access to law and legal information, we haven’t seen any steps from the side of the legislature so far. The SCOTUS decision may be showing us an alternate path. If the Indian judiciary adopts the government edicts doctrine, it may very well reach the conclusion that statutes (and any annotations to the official versions of the statutes or compilations of statutes) are not copyrightable. It is important in this context to observe that annotations can play a major role in making law accessible beyond legal audience and access to law is an integral component of rule of law.
The second is with regard to re-visiting the decision of the Supreme Court of India in Eastern Book Company v. D B Modak. While the EBC judgement is remarkable for clarifying that there cannot be any copyright over raw text of judgments, the decision had unfortunately reached the conclusion that acts like segregating the existing paragraphs in the original texts by breaking them into separate paragraphs, adding internal paragraph numbers, and indicating which judges have dissented or concurred by introducing the phrases like “concurring”, “partly concurring”, “dissenting” etc. might qualify for copyright protection (para 41). Such an interpretation was against the merger doctrine in copyright law, which clarifies that when there is only one or limited number of ways to express an idea, copyright law shall not protect the expression, as the expression has “merged” with the idea. As one can imagine, there are not many different ways for expressing things like dissenting, concurring etc. As some of my in-class experiments have shown, there are also only limited options for making paragraphs in the original text of a judgement, as most of our judges generally tend to create paragraphs in a logical manner. So such acts should have never qualified for copyright protection under the merger doctrine. However, it is astonishing that this part of the judgment hasn’t been overruled yet. If our judges show the courage to adopt the government edicts doctrine in the same spirit the CA11 or the majority of SCOTUS have done in the Georgia case, any edits or annotations made to the judgements (for example, adding reference materials to judgements in official databases) would immediately fall outside the purview of copyright protection. This would have enormous positive implications for increasing accessibility of judgements for the public and preventing the monopolisation attempts of the publishers.
Finally, the SCOTUS decision can also have implications for a better decision-making in the public interest litigation currently pending before the Delhi High Court regarding copyrightability of BIS standards. Prashant had covered this litigation extensively here and I don’t wish to repeat those aspects. For the purpose of our discussion, it is just important to note that BIS is a statutory body and many of their standards have to be compulsorily followed by the industry. Yet BIS does not make standards freely accessible for the public and it charges a hefty sum for access. The Delhi High Court may use the government edicts doctrine to declare that such standards are not copyrightable.
Conclusion
The decision of the majority in Georgia et al. v. PRO is bound to challenge and change the business models of law publishers like Lexis Nexis. However this is an inevitable and desirable change from an access to law perspective. Even though the Indian courts may not have explicitly endorsed the government edicts doctrine so far, there is nothing that prevents our courts from adopting this doctrine in future cases. After all, the Preamble of our Constitution embodies the spirit of this important doctrine!
[i] Shyamkrishna Balganesh and Peter Menell, ‘The Uncopyrightability of Edicts of Government’ (Amicus brief filed in Georgia etal. v.Public.Resource.Org, dated October 16, 2019), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3113&context=faculty_scholarship, 1-2.
[ii] Code Revision Commission for General Assembly of Georgia v. Public.Resource.Org, 906 F.3d 1229 (CA11), 1242-1243.