3. PERCEPTION. Not everyone cites US Code. Conflicting citations would cause confusion AND mean the CP wouldn’t be treated as authoritative.

b. The Federal Example - Codification of the Federal Statutes

At the federal level, the Office of the Law Revision Counsel is charged with the preparation of the United States Code, “a consolidation and codification by subject matter of the general and permanent laws of the United States.”53 It is the Law Revision Counsel who has the initial responsibility for determining the structure, titles, and classification of laws. The Law Revision Counsel reviews a new law and parses it to fit into the overall subject matter arrangement of the United States Code resulting in a systematic organization of the general and permanent laws of the United States or a code.

There are multiple codifications of our federal law. The U.S. Code is the official code acting as prima facie evidence of any law not otherwise enacted into positive law.54 The U.S. Code, however, is not the only code available. Two other codes, the United States Code Annotated, published by West and the United States Code Service, published by Lexis are annotated codes principally used for research purposes by attorneys and others researching the law throughout the country and the world.55

*67 c. The State Example - Codification of the Virginia Statutes

The Commonwealth of Virginia is an example of the typical publication process for state codes. The Virginia Code Commission is established by statute as existing within the legislative branch of the Commonwealth.56 The Virginia Code Commission is comprised of thirteen members, two members from each the Senate and the House of Delegates, two circuit court judges, one prior member from each of the Senate and the House of Delegates, the Governor or his designees, the Attorney General, the Director of the Division of Legislative Services, and up to two non-legislative citizen members as recommended by the Commission.57 It is this group that is charged with the publication and maintenance of “a Code of the general and permanent statutes of the Commonwealth.”58 The Virginia Code Commission has the power to arrange for the Virginia Code to be

[p]rinted and published by or at the expense of the Commonwealth and sold and otherwise distributed by the Commonwealth or (ii) privately printed and published, under the direction and supervision of the Commission and upon such terms as the Commission may provide and sold and distributed by the publisher upon such terms, including terms as to price, as the Commission may provide.59

The Virginia Code Commission is also empowered with the discretion to arrange for publication of an annotated or unannotated code, determine the arrangement, title, prefaces, annotations, indexing, table of contents, supplementation of the code and60

[to enter into contracts for] editorial work, ... annotations and other work as may be necessary. All parts of any code published or authorized to be published by the Commission, including statute text, ... catchlines, historical citations numbers of sections, articles, chapters and titles, frontal analyses and revisor's notes, shall become and remain the exclusive property of the Commonwealth to be used only as the commission may direct. However, the Commission shall acknowledge a property right in and the right to copyright materials prepared and added to any code by the person preparing it. Such materials may include inter alia case annotations, indices, various notes concerning sections and reference tables.61

*68 Virginia lawyers may elect to use the unannotated version of the Virginia Code made available at the Virginia General Assembly web site,62 or one of the annotated versions of the Virginia code published by Lexis and West. Interestingly, and as part of a pattern, the code of preference for Virginia lawyers for generations is the [Lexis] Code,63 the annotated version of the Virginia Code. The Virginia Code Commission is also charged with updating and supplementing the code with any changes or new laws enacted since the last regular session of the Virginia General Assembly.64

d. Georgia - Publication of the O.C.G.A

The Commission's role in the publication process as set out in Chapter 28 is detailed and involved. The specific intent of the legislature regarding the O.C.G.A. is spelled out in §1-1-2

The enactment of this Code is intended as a recodification, revision, modernization, and reenactment of the general laws of the State of Georgia which are currently of force and is intended, where possible, to resolve conflicts which exist in the law and to repeal those laws which are obsolete as a result of the passage of time or other causes, which have been declared unconstitutional or invalid, or which have been superseded by the enactment of later laws. Except as otherwise specifically provided by particular provisions of this Code, the enactment of this Code by the General Assembly is not intended to alter the substantive law in existence on the effective date of this Code.65

The specific legislative intent identified is the recodification and reenactment of the general laws of Georgia.66 The powers and duties of the Commission as set out in §28-9-3 must be read to be consistent with the intent proscribed by the legislature.67

O.C.G.A §1-1-1 governs enactment of the code. Consisting of two complex sentences, the provision attempts to acknowledge the routine publication process of a code.

*69 The statutory portion of the codification of Georgia laws prepared by the Code Revision Commission and [Lexis] pursuant to a contract entered into on June 19, 1978, is enacted and shall have the effect of statutes enacted by the General Assembly of Georgia. The statutory portion of such codification shall be merged with annotations, captions, catchlines, history lines, editorial notes, cross-references, indices, title and chapter analyses, and other materials pursuant to the contract and shall be published by authority of the state pursuant to such contract and when so published shall be known and may be cited as the “Official Code of Georgia Annotated.68

The first sentence establishes the positive law position of the O.C.G.A. and acknowledges the work for hire relationship with Lexis. The second sentence acknowledges that it is this version of the Georgia statutes that is considered official and that the code to be produced is an annotated code replete with the content customary for an annotated code. Much is made of the use of the word “merge” in the second sentence. In King v. Burwell, the Supreme Court states that if the statutory language is plain, it must be enforced according to its terms.69 Is the language plain? On its face it would appear so, but is the reading of the second sentence dependent upon the reader? Is the language deceptively not plain?

In Commission v. PRO a detailed discussion of the definition of the word “merge” is undertaken with the prevailing definitions from:

(1) Random House Dictionary of the English Language highlighted as “to lose or to cause to lose identity by uniting or blending” and “to combine or to unite into a single unit,”70 (2) Webster's Third New International Dictionary's definition of “to become combined into one' and to lose identity by absorption or intermingling',”71 and (3) the Oxford English Dictionary definition of “to be absorbed and disappear, to lose character or identity by absorption into something else; to join or blend,' and ‘to combine to form a single entity’

considered.72 The court focuses on the nature of the item created by the merger of the annotations with the statutory text thus creating the O.C.G.A. as published under the authority of the State of Georgia.73 What is created is an annotated code not distinct from any other annotated code even given the existence of O.C.G.A. §1-1-1 and title 28 which prescribe a detailed process that outlines a high degree of involvement by the Commission and the status of the O.C.G.A. as positive law. But *70 does that level of detail and involvement transform the authority of the annotation into something more?

The explicit choice of the Georgia General Assembly to create an annotated code, the preferred style of code for research purposes, is not inherently the choice to transform the simple annotation into something more in the process. Georgia easily could have elected to create an unannotated code and, in fact, did. The state's arrangement with Lexis resulted in multiple options designed to facilitate access to the law. The law, as in the actual text of the statutes, is made readily available online and with no claim of copyright. Print versions of the annotated code were also made available at a minimal cost.74 Finally, the online version of the annotated code is made available solely by subscription to Lexis Advance. In any of these permutations, the law is available in a range of options from no cost to expensive. The presence or absence of the annotations does not distinctly alter the text or meaning of the law nor, as suggested, does inclusion of the annotation make them anything other than what they are, an annotation, a tool, a direction to read the explanatory case or source. It is the underlying case that is of potential significance. Finding that case, also, is not uniquely limited to the annotation. As illustrated in the sodomy example, a citator search not only reports the continued validity of the law (or not) but also provides references to additional sources of potential interest and relevance, including pending legislation.

4. The O.C.G.A. on the Authority of the Annotation

The authority question is directly answered by the language of the code itself. §1-1-7 states that annotations are not law:

Unless otherwise provided in this Code, the descriptive headings or catchlines immediately preceding or within the text of the individual Code sections of this Code, except the code section numbers included in the headings or catchlines immediately preceding the text of the Code sections, and title and chapter analyses do not constitute part of the law and shall in no manner limit or expand the construction of any Code section. All historical citations, title and chapter analyses, and notes set out in this Code are given for the purpose of the convenient reference and do not constitute part of the law.

In State of Georgia v. Harrison Company,75 decided at the time of the original creation of the O.C.G.A. by Lexis, the question of Georgia's right to copyright the statutes (law), title, chapter, and article headings of the new code is addressed. The decision details the division of work between the Commission and Lexis in the creation of the new code.

*71 Immediately following the execution of the contract between the Commission and [Lexis], the Commission adopted the rules of style that were to be used in the revised code, including a new, three-unit numbering system, division of the code into titles, chapters, articles, parts, and subparts, and adoption of rules for capitalization and punctuation.

Following adoption of the rules of style, the Commission submitted them to [Lexis]. The editorial staff of [Lexis] then arranged the statutes into the 53 titles which had previously been selected by the Commission. This was done by actually cutting and pasting copies of the 1933 code as enacted by the General Assembly and all Georgia laws enacted since that time. In addition, statutes enacted prior to 1933 that were inadvertently omitted from the 1933 code were also included.

When the Commission felt that a substantive change to the law had to be made, it caused separate bills to be introduced in the General Assembly to accomplish that change; over 40 of these bills were enacted during the 1980 and 1981 regular sessions of the General Assembly. Other changes in the new code include the resolution of conflicts in the law, the deletion of laws that had been repealed, superseded, duplicated, or judicially declared unconstitutional, the inclusion of language to carry out the various major reorganization acts of state government, and giving effect to the numerous statutes and constitutional amendments that have changed the titles of public officials.76

In Harrison, the court considered the question of what is considered the statutory portion of the code. Excluded were the arrangement, title, chapter, and article headings.77 Providing alternative theories for this rational the court found the absence of reference to these in the language in O.C.G.A §1-1-1 determinative.78 It concluded such elements were assumed to be part of the statutory provisions of the code and, thus, in the public domain.79 In the alternative, such elements were merely descriptive language sufficiently brief and used in a descriptive manner such that it is the equivalent of a label.80 The court specifically declined to address whether a caption was part of the statute.81

*72 Harrison makes no mention of annotations in its discussion of what is considered a statute. Following the reasoning stated in Harrison, however, an annotation is more than a mere descriptive label. Further focusing on the merger language in O.C.G.A. §1-1-1,

The statutory portion of the codification of Georgia laws prepared by the Code Revision Commission and the Michie Company pursuant to a contract ... is enacted and shall have the effect of statutes enacted by the General Assembly of Georgia. The statutory portion of such codification shall be merged with annotations, captions, catchlines, history lines, editorial notes, cross-references, indices, title and chapter analyses, and other materials pursuant to the contract and shall be published by the authority of the state pursuant to such contract and when so published shall be known and may be cited as the “Official Code of Georgia “Annotated”82

the fact that an annotation is specifically listed is a suggestion that they are not routinely considered part of the statutory portion of a code, not part of the public domain and, thus, distinguished from law and copyrightable.

B. Factor Two - Process - Is the work created through a prescribed process that confirms its legal effect or the derivation from which deprives it of legal effect?

Everyone is familiar with the Schoolhouse Rock version of “How a Bill Becomes a Law.”83 An idea is captured in the form of a bill, considered in committee where it dies or is voted out to be considered by the chamber as a whole. Passed by one chamber it must be considered and passed by the other chamber. Once passed by both chambers the legislation becomes an Act and awaits signature or veto by the executive. The question in Commission v. PRO is whether or not annotations are created and adopted in a prescribed fashion sufficiently the same as the law-making process which entitles the annotation to be treated as authoritative and law like.

1. Bicameralism and Presentment

Article III of the Georgia Constitution specifies that legislative power is vested in the General Assembly composed of a Senate and House of Representatives.84 This clearly affirms bicameralism, but the Georgia Constitution is more specific regarding delegation of the People's voice and the creation of law. Article II of the Georgia Constitution speaks to whom the citizens of the State of Georgia delegate their power and voice. Members of the General Assembly are elected pursuant to and by those entitled to vote all as detailed in Article II of the Georgia Constitution.85 Article II *73 speaks to persons ineligible to hold office, recall from public office, and removal from public office.86 Article II, Section III, paragraph I also defines ‘public official’ in the context of ‘procedures for and effect of suspending or removing public officials upon felony indictment’.87

As used in this Paragraph, the term “public official” means the Governor, the Lieutenant Governor, the Secretary of State, the Attorney General, the State School Superintendent, the Commissioner of Insurance, the Commissioner of Agriculture, the Commissioner of Labor, and any member of the General Assembly.88

Citizens do not delegate or entrust simply anyone with their voice or the power to speak for them. They exercise their constitutionally protected and granted right to speak to elect representatives to exercise sovereign power. Use of the term public official is with care and not to be accorded generally. Notably absent from that list are staffers, members of the state bar, and corporate entities.

Article III, Section V, Enactment of Laws, specifies the process in which a bill becomes a law detailing the legislative process and signature by the governor.89 These provisions make it clear that the process requires presentment affirming it as a hallmark of making law. A deeper look at the requirements to create a law, requires consideration of the provisions on amendment and reading set out in paragraphs IV and VII of the Georgia Constitution.

Paragraph IV. Statutes and sections of Code, how amended. No law or section of the Code shall be amended or repealed by mere reference to its title or to the number of the section of the Code; but the amending or repealing Act shall distinctly describe the law or Code section to be amended or repealed as well as the alteration to be made.

Paragraph VII. Reading of general bills. The title of every general bill and of every resolution intended to have the effect of general law or to amend this Constitution or to propose a new Constitution shall be read three times and on three separate days in each house before such bill or resolution shall be voted upon; and the third reading of such bill and resolution shall be in their entirety when ordered by the presiding officer or by a majority of the members voting on such question in either house.90

*74 If an annotation is to be considered law or law like because it is the result of an exercise of sovereign power, is the fact that it is included in the annual bill enacting the O.C.G.A. into positive law sufficient? In order for an annotation to be law like must it follow the same process as any other legislation or is the process it does follow, although distinct, sufficient? Commission v. PRO suggests that the Georgia annotations “bear the hallmarks of legislative process, namely bicameralism and presentment” suggesting that inclusion in the annual bill enacting the O.C.G.A. is sufficient to satisfy the process requirements.91

Consider the 2013 Georgia Senate Bill No. 34092 which is the Senate bill titled:

To amend the Official Code of Georgia Annotated, so as to revise, modernize, correct errors or omissions in, and reenact the statutory portion of said Code, as amended, in furtherance of the work of the Code Revision Commission; to repeal portions of said Code, or Acts in amendment thereof, which have become obsolete, have been declared to be unconstitutional, or have been preempted or superseded by subsequent laws, to provide for matters relating to revision, reenactment, and publication of said Code; to provide for effect in event of conflicts; to provide for effective dates; to repeal conflicting laws; and for other purposes.

Further examination of the text of 2013 GSB 240 reflects a detailed description and language for changes in the statutory language to be included as the law in the O.C.G.A. but notably absent is the text of any annotation.93 Also notably absent, as required pursuant to Article III, Section V, Paragraph IV of the constitution, is a distinct description of the alteration to be made.

Adoption, if there is any adoption of annotations, is, as noted in Commission v. PRO, outside the normal legislative channels.

By contrast, the annotations are prepared by the Commission outside of the normal channels of the legislative process in the manner we have detailed and are not voted on individually in the way that Georgia session laws are.

However, it is also the case that the Georgia General Assembly voted to adopt the annotations as prepared by the Commission as an integral part of the official Code. [citation omitted] Further it did so through a legislative act that necessarily passed both houses of the legislature and was signed into law by the Governor.94

*75 If the annotations are to bear the hallmark of the legislative process and specifically, presentment, must they not be presented in some manner to the elected officials of the General Assembly as with the text of the changes in the statute? Given the omission of the text of the annotations it appears that the requirement of Article III, Section V, Paragraph III of the Georgia Constitution are unmet. Also problematic is that there is no suggestion that the text of the annotations is considered at any point during the legislative process absent the delegation of the charge to create the code. Unless presentment may be satisfied by absolute delegation to the Commission with further delegation to a commercial company pursuant to a work for hire arrangement, the concept of presentment and the factor of process must fail.

Image 2 - Excerpt of 2013 Georgia Senate Bill 340

SECTION 25.

Title 25 of the Official Code of Georgia Annotated, relating to fire protection and safety, is amended in:

(1) Code Section 25-9-13, relating to penalties for violations of the chapter, bonds, enforcement, advisory committee, dispose of settlement recommendations regarding blasting or excavating near utility facilities, in subparagraph (h)(2)(A), by deleting the subsection (h) esignation preceding the subparagraph (2)(A) designation.

SECTION 26.

Reserved.

SECTION 27.

Reserved.

This raises further questions as to the status of annotations and the practical impact of making annotations “law like.” Statutory compilations, in print, are traditionally and routinely updated once a year with annual pocket parts and/or cumulative supplements. Transition to an online environment, however, speeds up this process. Content available on Westlaw or Lexis Advance is updated more frequently, in some instances within hours of a new decision. This begs the question, if a court issues a decision impacting the validity of a Georgia statutory provision, resulting in an annotation as determined by Lexis but the decision and/or authoring of the annotation occur after the annual bill enacting the new code provisions into law, what is the status of the annotation? That annotation would have to wait the remainder of the year to achieve “law like” status. How is the researcher to differentiate between those annotations that are law like from those that are not? Annotations are not dated. Similarly, are the annotations to be reviewed and revised *76 on some regular basis to ensure their continued relevance in the context of evolving laws?

2. Constitutional Concerns - The Guaranty Clause and Delegation of Lawmaking to Nonelected Officials

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature or of the Executive (when the Legislature cannot be convened) against domestic Violence.95

The Guarantee Clause is aptly named for its role to guarantee to each state a republican form of government. Perhaps better named the dormant guarantee clause, the Supreme Court routinely dismisses cases questioning what a republican form of government is as nonjusticiable political questions.96 Justice O'Connor, questioned this practice in New York v. United States and suggesting that potentially, there are questions appropriate for consideration by the court that fall within the purview of the Guarantee Clause.

The view that the Guarantee clause implicates only nonjusticiable political questions has its origin in Luther v. Borden, [citation omitted] in which the Court was asked to decide, in the wake of Dorr's Rebellion, which of two rival governments was the legitimate government of Rhode Island. The Court held that “it rests with Congress not the judiciary, “to decide what government is the established one in a State.”

This view has not always been accepted. In a group of cases decided before the holding of Luther was elevated into a general rule of nonjusticiability the Court addressed the merits of claims founded on the Guarantee Clause without any suggestion that the claims were not justiciable

More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions.97

If the hurdle of the nonjusticiable political question is set to the side, what is the role of the guarantee clause as to guaranteeing a republican form of government to every state? Chermerinsky in his article, Cases Under the Guarantee Clause Should be Justiciable, argues that the Guarantee Clause “should be regarded as a protector *77 of basic individual rights and should not be treated as being solely about the structure of government.”98

The Guarantee Clause is best understood as protecting basic rights of political participation within state governments. The discussion at the Constitutional Convention certainly supports the view that the Guarantee Clause should be regarded as originally being about political rights ....'[A] republican government must be the basis of our national union; and no state in it out to have it in their power to change its government into a monarch.' ... In a monarchy, citizens do not get to choose their rulers, power is fixed and inherited; in a republican form of government, the people ultimately retain sovereignty and choose their officeholders. In other words, the key features of a republican form of government are the right to vote and a right of political participation.99

Chemerinsky also highlights Madison's contention that a key characteristic of a republican form of government is the election of representatives by the people and the making of laws that comply with state and federal constitutional provisions by the representatives.100

How laws are made and, more specifically, who is making them is at the heart of the dispute over the copyrightability of the O.C.G.A. annotations placing it directly within the protection of the Guarantee Clause as protecting basic individual rights. What is more basic than the question of the validity of a law made by delegation to a non-elected person or, even worse, a commercial entity?

The Commission is comprised of fifteen members. Of those fifteen members, five are members of the state bar appointed by the President of the Georgia Bar and not elected in any arrangement. Other key persons are members of the Office of Legislative Counsel, again not elected but employed by the state, and the corporate entity Lexis. While the legislature pays the salary of at least some of the non-elected members that factor alone as seen in Callaghan v. Meyers is insufficient to bestow special status on their work product101 How does an annotation that is the product of a work for hire arrangement between a Commission created by statute to exist within legislative branch and a commercial publisher satisfy either being made by an elected representative or the larger prescription of a republican form of government specified by the Guarantee Clause? Is the delegation not too far removed from the traditional work of the legislature?

*78 Commission v. PRO emphasizes the relationship of the Commission as a part of the legislative branch. Many people facilitate the work of the legislature without engaging in the exercise of sovereign power or directly speaking for the People. The existence of the modern administrative state at both the federal and state levels implicitly and explicitly accepts the concept of a delegation of legislative authority and the ability to delegate law making, subject to limits. The nondelegation doctrine at the federal level prohibits excessive delegation of power. “Delegation becomes excessive when Congress transfers legislative powers without providing adequate guidance about how those powers are to be exercised.”102

As in article I to the Constitution, granting the power of legislation to Congress, Article III, Section 1, Legislative Power, of the Georgia Constitution vests the legislative power in the General Assembly.103

Paragraph 1. Power vested in General Assembly. The legislative power of the state shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives.104

At the federal level, the Supreme Court places limits on the power to delegate legislative powers to non-congressional actors.105 In Panama Refining Co. v. Ryan the Supreme Court clearly found some limitation on the delegation of legislative power.106

The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions without which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of acts to which the policy as declared by the Legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. The constant recognition of the necessity and validity of such provisions and the wide range of administrative authority which has been developed by means of them *79 cannot be allowed to obscure the limitations for the authority to delegate, if our constitutional system is to be maintained.107

The State of Georgia has similarly embraced the concept of an administrative state.108 In a lengthy discussion of the legislative process in Glustrom v. State, the Georgia Supreme Court recognized both that it is the “expressed will of the people of this State that the lawmaking power shall be exercised only within defined limits” and “an administrative agency of government ... can have only the administrative or policing powers expressly or by necessary implication conferred upon it.”109 In Georgia Real Estate Commission v. Accelerated Courses in Real Estate, Inc., a two part test regarding the validity of an administrative rule is articulated.110 Prong one asks - is the rule authorized by statute and, prong two, is the rule reasonable? Both prongs must be satisfied. Failure to either be authorized by statute or reasonable defeats the rule.

Glustrom and Georgia Real Estate Commission clearly address and sanction delegation from the legislative branch to the executive branch but is the process a parallel argument with the legislative design of the creation of the Commission and the delegation to the Commission to create the O.C.G.A? The larger question, remains, is the delegation of the creation of the annotations an exercise of sovereign power or is it one bridge too far? Delegation is permitted but only as needed per Panama Refining or within defined limits or necessary implication conferred per Glustrom. Even if one accepts the structure of Chapter 9 of Title 28 of the O.C.G.A. as sufficiently detailed to create a Commission as the recipient of delegated legislative authority, the stated exclusion of

[a]nnotations; editorial notes; code Revision Commission notes; research references; notes on law review articles, opinions other Attorney General of Georgia, indexes; analyses; title, chapter, article, part, and subpart captions or headings, except as otherwise provide in the Code; catchlines of Code sections or portions thereof, except as otherwise provided in the Code; and rules and regulations of state agencies departments, boards, commissions, or other entities which are contained in the Official Code of Georgia Annotated are not enacted as statutes by the provisions of this Act111

*80 is a specific limitation on the Commission's work. The specific exclusion of the annotations as law is sufficient to make the delegation one delegation too far. Alternatively, Glustrom second prong - is the rule reasonable - must fail given the express exclusion of the annotations by the session laws from the O.C.G.A.

C. Factor Three - The Author - Who is the Author of the Annotations in the O.C.G.A.?

Identity of the author is central to the concept of copyright. It is the author who holds the property interest and in which copyright vests.112 In the creation of the O.C.G.A. the Georgia legislature formed, within the legislative branch, the Commission delegating to it the responsibility for the publication of the O.C.G.A. The Commission, in part, accomplishes its mandate using a work for hire arrangement with Lexis. Pursuant to work for hire doctrine, the work for whom it was prepared is the owner absent a written agreement to the contrary thus vesting the copyright for non-law provisions in the State of Georgia.113

1. Copyrightability of Content Created by State Employees -Banks and Callaghan

As previously noted, not at issue is the exclusion of the law, specifically judicial decisions, statutes, and regulations from copyright protection. By long and well-established law, works of the United States Government are not protected under the copyright statute.114 Similarly the Supreme Court decision in Banks v. Manchester clearly articulates the exclusion of law from copyright to state law.115

In dictum, the decision in Callaghan v. Meyers alludes to the issue of a state's ability to own copyright in a work produced by an employee.116 In discussing the ability of the reporter to possess copyright in his work the court considers that where there is no legislation that forbids the reporter from claiming copyright or directing him to pass along or assign such property right to the state.117 This language supports *81 both the right of a state to claim copyright in value-added material produced by an employee or through a work for hire arrangement and for a state employee to retain a property interest protectible by copyright. As section 105 of the United States Code does not reference state governments, it is the Banks and Callaghan decisions which address copyrightability of state law. Reading Banks and Callaghan together makes it clear that states may claim copyright in works authored by state employees with the exception of those edicts having the force of law (judicial opinions, statutes, and regulations).118 Also clear is that state “law” is not copyrightable.119

Goldstein also weighs in on this topic recognizing that the independent contributions fall within the penumbra of copyright and acknowledging that the copyright act bars copyright in works of the United States government not the state governments.120

Private firms publish a great proportion of the state and federal statutes and law reports available for reference in the United States. Because courts withhold copyright protection from the text of such privately printed official documents, these firms if they are not directly subsidized by the state must seek their profit in the original copyrightable subject matter that they contribute to the works - headnotes syllabi, annotations, organization tables and arrangements of cases.121

2. Veeck v. Southern Building Code Congress International, Inc.

In Veeck v. Southern Building Code Congress International, Inc.122 the Fifth Circuit addressed the key issue of the ability of a private party to assert copyright protection over model codes where language of the model code was subsequently adopted by a legislature becoming law.123 In controversy was the ability of a private organization whose purpose was to write model codes and who held copyright in the model code to protect its work from being posted on the web after the language of the model code was adopted as law by a jurisdiction.124 Veeck reaffirms the position that *82 law is excluded from copyright protection.125 It is clear that the law is to be available to the public and is not an appropriate subject for copyright. To the extent a work is subsequently enacted into law entering the public domain that work loses any copyright protection it held prior to becoming law.126 If there was any doubt, in the Sixth Circuit decision of Howell v. Miller,127 Justice Harlan provides a succinct statement of the law, “any person desiring to publish the statutes of a state may use any copy of such statues to be found in any printed book.”128 Copyright on the text of the Georgia statutes, however, is not the issue rather it is the annotation; the stuff distinctly not the law in which the State of Georgia claims copyright, that is at issue.

Other key language included in the Veeck decision is a finding that Veeck copies “only ‘the law’ of Anna and Savoy, Texas ... and when he reprinted only the law of those municipalities he did not infringe SCCI's copyrights in its model building codes.”129 Alternatively and dispositive, the court agreed with Veeck's argument that upon enactment of the model code into positive law the model law became a fact and thus not eligible for copyright protection under Feist.130 The most insightful language in Veeck, is not that which discusses whether the model code is the appropriate subject of copyright but rather that which discusses copyright protection for the value-added material. In response to the concerns of SBCCI regarding its own economic viability and longevity, the court suggested

to enhance the market value of its model codes, SBCCI could easily publish them as do the compilers of statutes and judicial opinions, with “value-added” in the form of commentary, questions and answers, lists of adopting jurisdictions and other information valuable to a reader. The organization could also charge fees for the massive amount of interpretive information about the codes that it doles out. In short, we are unpersuaded that the removal of copyright protection from model codes only when and to the extent they are enacted into law disserves “the Progress of Science and useful Arts.131

3. Identity of the “author” of the O.C.G.A.

The identity of the author, in this case the identity of the public officials, responsible for the creation of the annotations in the O.C.G.A. is determinative. It is *83 undisputed that the People are the authors of the law as found in the O.C.G.A. But is the author of the annotations one who qualifies as an agent of the People in the direct exercise of sovereign authority?132 Or, as initially framed, is the creation of the annotations, done pursuant to exercise of sovereign authority? The resulting rule from Banks and Callaghan invokes the policy notion that works created by the court in the course of performance of official duties were part of the public domain and by definition not protected by copyright.133 The Eleventh Circuit drew upon this concept stating:

Under democratic rule, the People are sovereign, they govern themselves through their legislative and judicial representatives and they are ultimately the source of our law. Under this arrangement, lawmaker and judges are draftsmen of the law, exercising delegated authority, and acting as servants of the People and whatever they produce, the People are the true authors .... Not surprisingly, then, for purposes of copyright law, this means the People, as constructive authors are also the owners of the law. And in this way, any work of which the People are the constructive authors is intrinsically public domain material and is freely accessible to all so that no valid copyright can ever be held in it.134

In applying the “metaphorical concept of the citizen author,” the court suggests that the correct reading of Banks is to determine if a work was created by an agent of the People in the direct exercise of sovereign authority.135 The court also expands the reach of the exclusion from copyright beyond those edicts that “carry the clear force of the law” rejecting the district court's bright line test between law and not the law.136 Instead, the court found that there is a

zone of indeterminacy at the frontier between edicts that carry the force of law and those that do not. [citation omitted] In this small band of cases a government work may not be characterized as law, and yet still be so sufficiently law like as to implicate the core policy interests undergirding Banks.137

Building on Banks by applying the rational in Veeck, it would seem once text becomes law then the People are the authors. This sets up two fundamental questions for consideration here. The first question is whether the value-added annotations are adopted as law? This question is explored previously and answered in the negative *84 suggesting the process of adopting the annotations falls short of that set out in the Georgia Constitution.138

The second question regarding identity of the author remains. Is a statutorily created body comprised of elected and appointed members as supplemented by state employees and a commercial publisher an agent of the People and is such work done in the exercise of their sovereign authority? In part, this question is answered in the exploration of the process discussion.139 Article II of the Georgia constitution is clear about who constitutes a public official elected by the People as their voice. The composition of the Commission is flawed if it is to act as an agent of the People vested with sovereign powers. The composition of elected public officials - the Speaker of the House of Representatives, four members from the House, the President of the Senate, four Senators is fine but the non-elected five members of the State Bar appointed by the president of the State Bar and the arrangement with Lexis stretch the definition of “public official.”140

The most interesting inquiry regarding the creation of the annotation is who actually creates the annotations? By analogy to legislative history, consider the exchange between Senators Dole and Armstrong made famous by the late Supreme Court Justice Anton Scalia. Mr. Dole is asked if he wrote the committee report or if any Senator wrote the committee report or vote on the committee report or read the entire committee report. During such exchange Senator Dole conceded it is the committee staffers who write the committee reports.141 The point being that it makes a difference who does the work. So, who here does the work? Is it the President of the Senate and Speaker of the House who write the annotations, is it the staff of the Office of Legislative Counsel, or is it Lexis pursuant to an established work for hire arrangement? According to the complaint, one of the duties of Lexis under the contract is the creation of

a summary of a judicial decision that relates to a particular Code section and illustrates and informs as to an interpretation of that Code section. This judicial summary is added at the end of the relevant Code section under the heading. ‘Judicial Decisions' .... The judicial summary is only added in the annotated publication and is not enacted as law.”142

Taking guidance from the Georgia Constitution as to the appropriate construction of “public official” as those empowered to speak for the people and *85 exercise sovereign power, the identity of the author of the annotations included in the O.C.G.A. must fail. Non-elected persons selected to the Commission by the State Bar and employees of a corporate entity are sufficiently distanced from the People as a voice and lack the authority to wield sovereign power.

IV. Conclusion

The test articulated in Commission v. PRO poses three questions as indicia of a work carrying the hallmarks of law. If each of the three questions is answered in the affirmative the conclusion must be that the People are the author, the work is in the public domain as ‘law’, and not subject to copyright. If any question is answered in the negative, the work is not ‘law’ and may be protected under copyright. The factors as previously identified and discussed in Part III of this article are:

1. Authority - Is the work authoritative as a law?

2. Process - Is the work created through a prescribed process that confirms its legal effect or the derivation from which deprives it of legal effect?

3. The Author - Who is the author and, if the author is a public official, is that author a public official entrusted with the exercise of legislative or sovereign power?

As suggested, there are challenges to answering any of these questions in the affirmative. The authority prong fails by the language of the O.C.G.A. §1-1-1 and §1-1-7 which is clear on its face the annotations are not law. This alone could be dispositive; however, there are more fundamental issues with the process prong.

The delegation of sovereign power to a Commission comprised of a mix of elected, non-elected, and a corporate entity under a work for hire arrangement even with detailed prescriptions of that delegation is a stretch of legislative power given the language of the Georgia Constitution. The Georgia Constitution is clear on who speaks for the People of Georgia and who is considered a public official. Even giving due consideration to the practicality of the modern-day administrative state, it is too far of a reach to credit the Georgia legislature as the author of the work product of a corporate entity pursuant to a work for hire arrangement. It remains true even when you consider that the work product is produced under detailed statutory instructions and highly supervised by a commission created by the legislature. Bootstrapping unseen and not presented text created outside the normal legislative process and deeming it an exercise of sovereign power is a step too far.

The absence of presentment of the annotations is also a hurdle too high to overcome given the specificity of the lawmaking process in the Georgia Constitution. While there may be some acceptable variation on the legislative process, the whole scale delegation of such process as is a delegation too far in light of the Guarantee Clause and Panama Refining.

*86 The final prong of the inquiry that of the identity of the author must also fail for want of the legislative process. This leaves the conclusion that the value-added annotations contained in the O.C.G.A. are not authoritative, not created pursuant to an equivalent sovereign process by a public official, not constructively authored by the People, and not part of the public domain. Accordingly, they are an appropriate subject of a copyright registered and held by the State of Georgia.