The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an overview of Georgia v. Public.Resource.Org Inc. Today, the Supreme Court of the United States will hear oral arguments in this case, which examines whether the “government edicts” doctrine extends to the Official Code of Georgia Annotated, rendering it uncopyrightable.

Background

The Code Revision Commission (the “Commission”), an arm of the State of Georgia’s General Assembly, is mandated to ensure publication of the statutes adopted by the General Assembly. It does so by contracting with the LexisNexis Group (“Lexis”) to maintain, publish, and distribute the Official Code of Georgia Annotated (“OCGA”), an annotated compilation of Georgia’s statutes. Following guidelines provided by the Commission, Lexis prepares and sells OCGA, which includes the statutory text of Georgia’s laws and annotations (such as summaries of judicial decisions interpreting or applying particular statutes). Lexis also makes unannotated versions of the statutes available online.

Public.Resource.Org (“PRO”) is a non-profit organization that promotes access to government records and primary legal materials. PRO makes government documents available online, including the official codes and other rules, regulations, and standards legally adopted by federal, state, and local authorities, giving the public free access to these documents. PRO purchased printed copies of the OCGA, digitized its content, and posted copies online through its own website.

Georgia filed suit against PRO claiming copyright infringement. Before the lower courts, PRO invoked the judicially-created “government edicts” doctrine. As a matter of public policy, courts have held that government edicts having the force of law, such as statutes and judicial decisions, are not eligible for copyright protection. While the court of first instance agreed with the State of Georgia and the OCGA was found to be copyrightable, on appeal the Eleventh Circuit held that under the government edicts doctrine, OCGA is not copyrightable and rejected Georgia’s infringement claim against PRO. Now, the issue before the Supreme Court is whether Georgia can claim copyrights over the OCGA annotations or if it is prevented from doing so because the annotations are an edict of government.

Position of the Parties

The State of Georgia and the Georgia Code Revision Commission submit that the annotations are not excluded from copyright protection; the annotations lack the force of law and therefore do not trigger the government edicts doctrine. Georgia also argues that the annotations are “derivative works” from the statutes and though published alongside materials in the public domain, they nonetheless are produced by a private entity. Finally, Georgia states that copyright in the annotations is the underlying incentive for its partnership with Lexis and, absent copyright protection for OCGA, Lexis would lose incentive to produce the annotations unless Georgia used taxpayer funds to directly pay for the services.

Public.Resource.Org argues that, in addition to texts with binding legal effect, any works that represent an “authentic” exercise of state legal authority, including legal works adopted or published under the authority of the state, are uncopyrightable edicts of government and therefore cannot be copyrighted. They posit that as long as the documents embody the authority of the state, such works would not be subject to copyright, even if they do not have legal force. PRO concludes that since the OCGA is an official legal document that holds itself out as “published under the authority of the State,” it is therefore a government edict that is ineligible for copyright protection.

Next Steps

Audio of the oral arguments in Georgia v. PublicResource.Org should be available on the website of the Supreme Court on Friday. We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the implications and outcome of this case. We will provide an update once the Court issues its decision in this case.

Dr. Seuss Enterprises v. ComicMix LLC. De Fontbrune v. Wofsy Sketchworks Industrial Strength Comedy, Inc. v. Jacobs

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To learn more about fair use, we recommend taking a look at our Fair Use FAQs. Nonfiction authors can explore Authors Alliance’s Fair Use for Nonfiction Authors, a guide that helps nonfiction authors make confident fair use decisions when incorporating source materials into their writings. Other communities of creators can learn how their communities apply fair use in situations typical to their given community through best practices documents developed by those communities.

Last week, Authors Alliance participated in the thirty-ninth session of the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights (SCCR/39) in Geneva. Among other topics, the Committee addressed copyright limitations and exceptions for libraries and archives and for educational and research institutions. Authors Alliance presented a statement to the Committee on how limitations and exceptions can benefit authors.

Authors Alliance was pleased to partner with Rebecca Giblin of the Author’s Interest Project to host a side panel at the SCCR/39, “Supporting Authors in a Digital Age.”

Giblin shared preliminary results from a study of more than 50 years of publishing contracts from the archive of the Australian Society of Authors. The research revealed that publication contracts are often insufficient to protect authors’ interests. For example, 14% of the contracts examined by Giblin and her colleague Joshua Yuvaraj did not include out-of-print rights, and only 6% of contracts used objective criteria (such as sales or revenue numbers) to define out-of-print status.

Giblin described how reversion rights give authors fresh opportunities to financially benefit from their works, open up new investment opportunities for publishers, and promote ongoing availability to the public. Giblin explained that their research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to US termination of transfer laws.

Brianna Schofield discussed how reverting rights can help authors to reach more readers, continue to contribute to scholarly and cultural discourse, and ensure that their works’ continuing impact and relevance are not limited by their commercial lives. She shared examples of authors who have regained rights and subsequently released their books on open terms, self-published their works, and placed their books with a new publisher. Schofield explained that, because of the tremendous benefits of reversion for authors and the public, Authors Alliance supports statutory termination rights for authors, as well as strengthening provisions governing reversion rights in publication contracts.

Earlier this summer, Audible announced plans to enable machine-generated text captions to scroll across screens as audiobooks are played, a development that prompted a group of seven publishers—including HarperCollins, Penguin Random House, Hachette Book Group, Simon & Schuster, and Macmillan—to initiate a lawsuit against Audible. As our previous discussion of the litigation explained, the publishers maintain that the Captions feature would infringe their copyrights because it creates unauthorized derivative works and reproduces, distributes, and publicly displays unauthorized copies of the books.

In its recent filing, Audible argues that the publisher’s case should be dismissed because the licenses granted to Audible bar such a claim, and that in any event, the Captions technology is a fair use of the copyrighted works. This post focuses on the fair use arguments; a detailed account of the license issue can be found here (and in the related court filing, here).

A refresher on fair use may be useful to readers: Fair use is a limitation on U.S. copyright law which allows authors to use portions of a copyrighted work without permission or payment, so long as that use is “fair.” Courts consider at least four factors when determining whether a use is fair: 1) the purpose and character of the challenged use (often asking if the use is “transformative”), 2) the nature of the copyrighted work, 3) the amount and substantiality of the copyrighted work used, and 4) the effect on the potential market for the copyrighted work. These four factors do not work in isolation and must be carefully weighed together to determine if a use is fair.

Audible’s Fair Use Argument

Audible argues that Captions is a quintessential fair use. Audible argues that under the first fair use factor, Captions is unequivocally “transformative” and is a “utility-expanding” use of the licensed audiobooks: After paying for the right to experience the audiobook, listeners can use Captions to verify and focus on what they are hearing and to access external resources such as dictionaries or translations. Instead of allowing a user to read a book in any meaningful sense, Audible maintains that the purpose of Captions is to improve a listener’s ability to understand the work she has purchased.

Under the third fair use factor, Audible argues that the amount of the copyrighted work used to generate Captions is reasonable in relation to the purpose of the copying. Under the fourth factor, Audible argues that the Captions feature is unlikely to dissuade a user from purchasing the full text of the books, since the captions are not a substitute and do not provide a replacement for a book or e-book. Audible claims that the brief display of words does not provide a meaningful substitute for the actual book because the text of the original work is transcribed in small portions, it is displayed only momentarily and in sync with the audio, and it does not provide the ability to refer back or flip through a full coherent text. (As for the second fair use factor, Audible argues that the fair use case hinges on the other three factors.)

Taking the four factors together, Audible argues that Captions is a fair use of the licensed audiobooks.

Publishers’ Reply to the Fair Use Argument

In reply to Audible’s fair use arguments, the publishers argue that the Captions feature is not transformative and gives access to the entirety of the text, which is not fair use. Under the first fair use factor, the publishers argue that Captions is not transformative as it does not serve another and different purpose than what would be accomplished by the underlying text: both serve the purpose of reading. The publishers argue that the Captions feature “does not shed any new light on the text of Publishers’ Works, it does not comment on or criticize them, and it is not used to find an authorized version of them; it merely provides the Works’ text in competition with authorized offerings.”

Under the second factor, the publishers argue that most of the copyrighted works at issue are creative and fictional, weighing against a finding of fair use. Under the third factor, the publishers argue that the Captions feature provides access to the entirety of the work, also weighing against fair use. Here, publishers distinguish Captions from the Google Books snippets fair use case. Where Google Books only provides snippets of books to allow a user to assess whether access to the entire book would be useful, at no point do these snippets display more than 1/8 of a page around a searched keywords and 10% of each book is permanently unavailable. In contrast, Captions has no such restrictions and the feature would allow access to 100% of the underlying text.

Finally, under the fourth factor, publishers argue that Captions would cannibalize market opportunities for publishers to distribute or license the eBooks of its texts, thus weighing against a finding of fair use. The publishers maintain that Captions is likely to discourage users to purchase the print and ebook versions of the underlying text, and that Captions directly competes with parallel markets for the texts, including cross-format services like Audible’s own Immersive Reading services.

In sum, the publishers argue that the balance of the factors weighs against Audible’s fair use claim.

Going Forward

The parties are currently waiting on a decision on whether a preliminary injunction will be granted, which would prevent Audible from launching Captions on all of the publishers catalog pending trial. Meanwhile, Audible is delaying the complete rollout of Audible Captions, making it available only for audiobooks in the public domain until the litigation is resolved. We will continue to monitor and provide updates on the litigation.

Today, the United States House Committee on the Judiciary is scheduled to review H. R. 2426, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”). The CASE Act would establish a small claims tribunal within the Copyright Office as an alternative to federal court for pursuing copyright claims.

As we’ve previously written, Authors Alliance supports reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. Today, the high cost of litigation keeps many independent authors and other creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the CASE Act as written invites abuse and poses a high likelihood of harm to authors as both claimants and respondents in the proposed tribunal.

To address problems with the current draft of the CASE Act, our letter urges the Committee to:

• Limit statutory damages to cases where it is impossible or cost prohibitive to prove actual damages and develop principles to guide awards of statutory damages;
• Remove restrictions on the grounds for judicial review of the tribunal’s decisions;
• Include additional safeguards to deter copyright trolls and preserve the utility of the small claims tribunal for independent authors and creators;
• Require potential respondents to affirmatively opt-in to the small claims process; and
• Narrow the jurisdiction of the small claims tribunal.

Read more about these recommendations in our letter to the Committee.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works in lawful ways. We urge the Committee to modify the bill to better serve the creators it is intended to benefit.