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Unofficial Opinion 94-16

Unofficial Opinion 94-16

November 16, 1994
To: 

Representative
District 115

Re: 

Publication of the Official Code of Georgia Annotated in Book Format and in CD-ROM Format

This opinion is in response to the questions raised in your letter concerning the powers and duties of the Code Revision Commission (the "Commission") relating to the publication of the Official Code of Georgia Annotated and any unannotated version thereof in book format and in CD-ROM format.

Initially, you inquire whether the Commission would be required to take competitive bids in order to license the use of the state copyrighted portions of the O.C.G.A. for use in electronic on-line services or in CD-ROM products. In Harrison Co. v. Code Revision Comm'n, 244 Ga. 325 (1979), the Georgia Supreme Court held that the Commission is not subject to the competitive bidding requirements of O.C.G.A. § 50-5-67. Therefore, it is my unofficial opinion that the Commission is not required to take competitive bids in order to license the use of the state copyrighted portions of the O.C.G.A.

You also inquire (1) whether the Commission can grant a license, either exclusive or nonexclusive, to an electronic publisher other than the official book publisher for use of the annotations, indexes, notes, and other material written and typeset by the book publisher at that publisher's expense but

copyrighted by the state pursuant to the book contract, and (2) if so, whether the book publisher would have a valid claim for unjust enrichment if the Commission granted a license to use the annotations, indexes, notes, and other copyrighted material to another company. The terms and conditions of the Agreement (the "Agreement"), entered into between the Commission and the book publisher (the "Publisher") on February 26, 1991, taken together with the Commission's statutory duties, are dispositive with respect to these questions.

The Agreement provides "for the respective rights and duties of the Commission and the Publisher with respect to the preparation, publication, distribution, and sale of the printed Official Code of Georgia Annotated . . . in book form." (Emphasis added.) Agreement § 1-1. Under the terms of the Agreement, the Publisher is granted "the exclusive right to distribute and sell in printed, bound book format sets and volumes of the O.C.G.A. for a period extending from August 1, 1991 to March 1, 1999." (Emphasis added.) Agreement, § 5-2(a). However, under the terms of the Agreement, with one limited exception, the Publisher has no right to sell or distribute the O.C.G.A. in "electronic or other format." Agreement § 5-5.

Under the terms of the Agreement, the Commission, rather than the Publisher, is granted "the exclusive right to sell, license, or otherwise permit the Publisher or third parties to use the O.C.G.A. in any electronic, microfilm, microform, or other format." Id. With one limited exception not applicable here, the Agreement expressly provides that "the Publisher shall not have any right to distribute the O.C.G.A. in electronic or other format or to sell, license, or otherwise permit third parties to use the O.C.G.A. in electronic or other format." Id. The parties expressly agreed that "except to the extent that such rights may be hereafter granted to the Publisher by the Commission," the Publisher would have no right to distribute or sell the O.C.G.A. in electronic or other format. Id.

Thus, the Publisher's exclusive right to publish the O.C.G.A. in book form would not prevent the Commission from granting third parties the right to publish the O.C.G.A. in electronic or other format, including CD-ROM format. The parties expressly agreed that "all rights granted to the Publisher herein with respect to the O.C.G.A. are to be construed as a license and such license shall not limit the ability of the State of Georgia to grant or enter into other licenses or agreements not in conflict with the licenses granted herein." (Emphasis added.) Agreement at § 5-6. A license to sell or distribute the O.C.G.A. in electronic or other format would not conflict with the book Publisher's license to sell or distribute the O.C.G.A. in book form. Indeed, the Agreement with the book publisher contemplates that a separate license would be granted to an electronic publisher "upon such terms as may be approved by the Commission." Agreement at § 5-5.

Likewise, nothing in the Commission's enumerated statutory powers and duties would prohibit the state from granting such a license to a third party. See O.C.G.A. § 28-9-3. The Commission's authority includes the authority "[t]o grant exclusive or nonexclusive publication and sales rights to the Code or portions thereof to the publisher." O.C.G.A. § 28-9-3(13). Therefore, it is my unofficial opinion that the Commission is authorized to grant an exclusive or nonexclusive license to a publisher, other than the book publisher, to publish the O.C.G.A. on CD-ROM, which includes use of the annotations, indexes, notes, and other material written and typeset by the book publisher.

The doctrine of unjust enrichment would not bar the Commission from granting to another publisher the exclusive right to publish the O.C.G.A. in CD-ROM format. Even assuming arguendo that the theory of unjust enrichment is applicable to the state, that theory has no application here.

"A quasi-contractual principle of unjust enrichment does not apply to an agreement deliberately entered into by the parties, however harsh the provisions of such contract may seem in the light of subsequent happenings." 17 C.J.S. Contracts § 6, p. 574. "There cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise." Gilbert v. Edmondson, 193 Ga. App. 593, 594 (1989). "[T]he law will not impose an implied obligation on any person contrary to an express undertaking." 17 C.J.S. Contracts § 6, p. 566.

Here, the provisions of the express contract would supersede those of any implied contract on a theory of unjust enrichment. The parties clearly contemplated, when they entered into the Agreement, that the Commission would have the exclusive right to sell, license or otherwise permit third parties to publish the O.C.G.A. on CD-ROM. Agreement §§ 5-5, 5-6. The parties also expressly agreed that the book publisher would have no right to publish the O.C.G.A. on CD-ROM. Agreement § 5-5. Because there exists an express agreement on this point, the Publisher would be estopped to recover on quantum meruit should the Commission grant a license to a third party to publish the O.C.G.A. on CD-ROM. "[T]here can be no recovery in quantum meruit where an express contract governs all the claimed rights and responsibilities of the parties." Lord Jeff Knitting Co. v. Lacy, 195 Ga. App. 287, 288 (1990).

Moreover, it cannot be overlooked that the Commission is under a duty "[t]o register the copyright claim in all materials in the Code and any supplements thereto" and "to protect, enforce, and preserve all claims in such materials." O.C.G.A. § 28-9-3(15). Under the Agreement, "those materials prepared and created by the Publisher for inclusion in the O.C.G.A. shall remain with the State of Georgia. . . ." Agreement at § 5-6. Other than the "right to reprint selected portions of the copyrighted material from the O.C.G.A. . . . for use by the bench and bar of Georgia," id. at § 5-2(c), "the Publisher is granted no rights with respect to the O.C.G.A. . . . ." Agreement at § 5-6. The Publisher agreed that "the restrictions on its use, publication, sale and distribution of the O.C.G.A. are reasonable and necessary to protect and preserve the interests and properties of the State of Georgia." Agreement at § 7-10.

You also inquire whether the Commission may properly consider the effect of sales by multiple licensees of CD-ROM editions of the O.C.G.A. or electronic versions of the unannotated edition of the Code on the sale of the book edition of the O.C.G.A. There is nothing in the Agreement between the Publisher and the Commission which would require the Commission to take this factor into account. As the Harrison Company Court recognized, the publisher of the book contract "is not being given an exclusive franchise as to the publication of laws in Georgia." Harrison Co., supra at 329.

However, in "negotiat[ing] and grant[ing] licenses or rights, on behalf of the state," the Commission is under a duty to use the copyrighted material in the Code "upon such terms and conditions as the commission shall determine to be in the best interest of the state." O.C.G.A. § 28-9-3(15). Therefore, to the extent that the grant of multiple licenses of the O.C.G.A. in CD-ROM format would increase the price of the book edition, and to the extent that the Commission determines that any such price increase would not be in the best interest of the state, it is my unofficial opinion that the effect of sales by multiple licensees of the CD-ROM edition of the O.C.G.A. on the book edition is an appropriate matter for the Commission to consider in negotiating and granting licenses on behalf of the state.

Finally, should the Commission decide to issue one exclusive license for CD-ROM products to the book publisher for the entire contents of the O.C.G.A., you inquire whether the Commission may limit the number of licenses to be issued to other publishers for the use of the catchlines and history lines. The Commission is authorized to grant "exclusive or nonexclusive publication and sales rights to the Code or portions thereof." O.C.G.A. § 28-9-3(13). It is my unofficial opinion that the decision to limit the number of licenses to be issued is a matter within the sound discretion of the Commission guided by its duty to negotiate and grant licenses in Code materials "upon such terms and conditions as the commission shall determine to be in the best interest of the state." O.C.G.A. § 28-9-3(15).

Prepared by:

GRACE EVANS LEWIS
Senior Assistant Attorney General