Gordon Hull, On the Authorship of Law: Copyright, Foucault, and Hobbes, New APPS: Art, Politics, Philosophy, Science, 12 Nivember 2019
There is an interesting copyright case before the Supreme Court this term, Georgia v. Public Resource.org. It is settled law that official edicts of the government – statutory texts, judicial opinions, agency rules – are not copyrightable. More about that in a moment. In this case, Georgia entered into a contract with Lexis to produce an annotated version of its code. The state gets editorial control, and Lexis gets exclusive publication rights. The product is the “Official Georgia Code Annotated” and is generally cited as the authoritative statement of Georgia law. Public Resource made copies of the OGCA publicly available for free, including the annotations. The state claims copyright over the annotations and sued to enjoin Public Resource. The question before the court is thus whether the annotations to state law are copyrightable, even given that the statutory text is not.
I’ve been interested in Foucault’s remarks on authorship for a while, and this seems to me to be a perfect example of the juridical function of authorship as Foucault articulates it. Recall that for Foucault, important to recognize that authorship does important political work, whatever one thinks of it as a way to approach textual interpretation. In particular, we are prone to organize texts according to “authors” in part as a strategy for managing meanings and assigning them to creators.