Copyright Compendium

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313.6 (C) (2) Government Edicts

 

313.6 (C) (2) Government Edicts

 

Legislators and judges “empowered to speak with the force of law cannot be the authors of–and therefore cannot copyright–the works they create in the course of their official duties.” Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1504 (2020). This is known as the “government edicts doctrine.” Id. at 1504, 1506.

 

The doctrine is based on the principle “that no one can own the law.” Id. at 1507. It “bars the officials responsible for creating the law from being considered the ‘author[s]’ of whatever work they perform in their capacity’ as lawmakers.” Id. (emphasis in original; citation omitted). As a result, any “work that [a] judge or legislator produces in the course of his [or her] judicial or legislative duties is not copyrightable,” regardless of whether it “carries the force of law.” Id. at 1506, 1513.

 

The government edicts doctrine “applies to whatever work legislators perform in their capacity as legislators. That of course includes final legislation, but it also includes explanatory and procedural materials legislators create in the discharge of their legislative duties.” Id. at 1508.

 

Likewise, judges “cannot be the ‘author’ of the works they prepare ‘in the discharge of their judicial duties,'” because they “are vested with the authority to make and interpret the law.” Id. at 1507 (citing Banks v. Manchester, 128 U.S. 244, 253 (1888)). The doctrine applies to binding opinions issued by any federal, state, local, or territorial court. Id. It also applies to any concurrence, dissent, syllabus, headnote, statement of the case, or other “non-binding, explanatory legal materials” a judge may create “in his [or her] judicial capacity.” Id. at 1504, 1507, 1509, 1511; Banks, 128 U.S. at 253.

 

The U.S. Copyright Office will not register a government edict that has been issued by any federal, state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. See Banks, 128 U.S. at 253 (“there has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, 8 Pet. 591, that no copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties”); Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (Harlan, J.) (“no one can obtain the exclusive right to publish the laws of a state in a book prepared by him”).

 

There is a limited exception to this rule. Section 104 (B) (5) of the Act states that works first published by the United Nations or any of its specialized agencies, or first published by the Organization of American States are eligible for copyright protection in the United States. See 17 U.S.C. § 104 (B) (5).

 

The Office may register annotations or other explanatory materials that summarize or comment upon an edict of government, if they were “prepared by a private party, or a non-lawmaking official” “who lack[s] the authority to make or interpret the law,” and if they contain a sufficient amount of original authorship. Georgia, 140 S. Ct. at 1507, 1509, 1510; Callaghan v. Myers, 128 U.S. 617, 647 (1888).

 

Other than works of the United States Government, a work that does not constitute a government edict may be registered, even if it was prepared by an officer or employee of a state, local, territorial, or foreign government while acting within the course of his or her official duties. For example, the Office may register a tourist magazine written and published by Arizona’s department of tourism or a map created and published by the public transit authority for the city of Detroit. Georgia, 140 S. Ct. at 1510.