Does fair use allow annotated statutes to be reproduced? CRC v. PUBLIC.RESOURCE

Does fair use allow annotated statutes to be reproduced? CRC v. PUBLIC.RESOURCE

A copyright is a set of exclusive rights granted to the creator of an original work of authorship.  Copyright grants a creator the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

The exclusive rights granted to a copyright owner are not unlimited. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. Fair use exists because copyright law is intended to promote the advancement of the arts and sciences.  A fair use of copyrighted matter is a use that promotes advances. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

Even though the United States government grants copyrights, the government does not retain copyright to its own works. A work of the United States government, as defined by the United States copyright law, is “a work prepared by an officer or employee” of the federal government “as part of that person’s official duties.” In general, under section 105 of the Copyright Act, such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

The United States government has a diverse array of laws and regulations.  The reason for a law and how a law should be interpreted is not always apparent from the text of the law.  Therefore some governments have their laws annotated.   An annotation serves as a brief summary of the law and demonstrates how a particular law enacted by Congress or a state legislature is interpreted and applied. Annotations usually follow the text of the statute they interpret in annotated statutes.  The question then becomes, is it copyright infringement to reproduce the annotations to a law?

CODE REVISION COMMISSION. v. PUBLIC.RESOURCE.ORG, INC., 1:15-cv-02594 (N.D.GA 2017) is a case which deals with the copyrightability of law annotations.

Plaintiff in this case is the Code Revision Commission of the State of Georgia.  The CRC owns the copyright to the Official Code of Georgia Annotated (“OCGA”), which is licensed and published by Lexis/Nexis.  The OCGA is a set of 186 books that includes laws of Georgia as well as annotations, editorial notes, chapter analyses, and other material.  The license agreement between Lexis/Nexis and the CRC requires the law be made publicly available for free but Lexis/Nexis charges a fee for the complete set of OCGA materials.  The licensing fees generated about $80,000 in revenue for CRC.

Defendant is a nonprofit organization that purchased the entire set of OCGA books, scanned them all, and then posted the scans on its website.  Defendant made the complete set of OCGA material available to the public for free.  Plaintiff sued Defendant for copyright infringement.  Defendant responded that the OCGA was not entitled to copyright protection because it was a government work and that Defendant’s use was a fair use.

The district court held that the annotations to the OCGA statutory provisions were entitled to copyright protection, and that making a copy of the OCGA available online without authorization was not a fair use.  With respect to the purpose and character of the use the district court found that Defendants use was not transformative because Defendant copied the OCGA without modification and that Defendant profited in attention it received from copying the work.  The second factor, the nature of the work, weighed against fair use because annotations are the type of analytical works intended to be protected by copyright law. The third factor, the amount of work used, weighed against fair use because defendant made an exact reproduction of the OCGA annotations.  Finally, the court held that the fourth factor weighed against fair use because distribution of the work for free online would hinder the economic viability of the OCGA because people would be less likely to pay for annotations when they are available for free online.  Based on these findings the court dismissed the Defendant’s fair use defense.

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