31 October, 2019
There is no contention that the public has every right to be freely apprised of the laws governing their daily lives. In a democracy, the power of the government to create, interpret, and implement laws is sourced from the people. Thus, “edicts of government” such as statutes and judicial opinions per se are not subject to exclusive ownership and/or commercial exploitation in the context of copyright, not even by the government itself.
The case of The State of Georgia v. Public.Resource.Org, Inc., currently under review by Petition for Certiorari before the United States Supreme Court, seeks to resolve the issue of whether annotations prepared by the government, which lack the force of law, are covered by copyright protection.
The State of Georgia (Georgia), in collaboration and under an Agreement with a private publisher, compiled its State codes including annotations, summaries of judicial decisions, opinions of the State Attorney General, statutory history of State laws, and other such information in a compendium and published the same as the Official Code of Georgia Annotated (OCGA). Pursuant to the Agreement between Georgia and the publisher, Georgia owns the copyright over the OCGA and the publisher has exclusive right to publish and sell the same as a printed publication, on CD-ROM, and in an online version, with the latter remitting to Georgia the royalties from the licensing fee for the CD-ROM and online versions of the OCGA.
In 2013, Public.Resource.Org., Inc. (Public Resource) bought hard copies of the 186 volumes of the OCGA and then made the scanned copies of the same readily available and accessible to the public for free on its website. In 2015, Georgia initiated a copyright infringement suit against Public Resource before the United States District Court for the Northern District of Georgia (District Court). The District Court held that the annotations are copyrightable because the annotations lack the force of law.
The Court of Appeals for the 11th Circuit (11th Circuit) stated that resolving the case means “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.” The 11th Circuit relied on the following critical markers to indicate if the work was made in the exercise of sovereign power: identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. It reversed the decision of the lower court on appeal and held that the “annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority” and thus not entitled to copyright protection.
The case of Georgia v. Public Resource is scheduled for arguments before the US Supreme Court later this year. The ruling of the US Supreme Court in the present case and any other such developments in intellectual property law practice in the United States may have tremendous effects beyond its territorial borders, especially in the Philippines, considering that Philippine intellectual property law is patterned after US intellectual property laws such as the Lanham Act and the US Copyright Act. Moreover, US Supreme Court decisions interpreting intellectual property law principles have been held to be persuasive in Philippine jurisdiction.
Republic Act No. 8293, or the Philippine Intellectual Property Code IP Code, specifically states, under Section 175, that “any official text of a legislative, administrative, or legal nature” is not protected by copyright. Section 176 of the IP Code also explicitly declares that “no copyright shall subsist in any work of the Government of the Philippines.” However, despite these provisions generally removing works of the government from the scope of copyright protection, Section 176 allows the works of the government to be exploited for profit provided that there is prior approval of the government agency or office wherein the work is created and that such agency or office may impose, among other things, the condition of the payment of royalties. A similar provision may be found in Title 17 of the United States Code that codified US Copyright laws.
In the dissenting opinion of Justice Carpio in the Philippine case of In re Del Castillo (2011), Mr. Carpio finds that although works of the government may not be copyrightable in general, the arrangement or presentation of passages copied from works of the government may be subject to copyright pursuant to Section 1731.1 (b) of the IP Code.
In the Philippines, there are various compilations of laws and annotations commercially available to the public which are prepared by both public and private entities. Regardless of the outcome of the proceedings before the US Supreme Court, a definitive Decision clarifying the scope of copyright law in the context of works of the government could, at the very least, open the discussion on whether similar works in the Philippines should be subject to copyright protection under Philippine law.
For further information, please contact:
Mary Erica D. Manuel, Angara Abello Concepcion Regala & Cruz (ACCRALAW)
accra@accralaw.com
