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Rh (statement of Sen. Russell Long) (“The original and continuing purpose of this prohibition is to assure maximum availability and dissemination of informational material prepared by or for the Government at the expense of the public.”).

On the other hand, the rule in Banks derives more directly from the concept of popular sovereignty. As a result, while § 105 is concerned with any work created by a federal employee, since all government works are paid for by the taxpayer and, as a policy matter, are potentially useful to conscientious and informed citizens, the rule in Banks is concerned with works created by a select group of government employees, because only certain public officials are empowered with the direct exercise of the sovereign power.

This explains why the state-paid court reporter acting pursuant to his statutory duties in Callaghan did not run afoul of the rule in Banks and could hold a valid copyright in his work even though the work he created likely would fall within § 105’s prohibition if he had been a federal employee. See Callaghan, 128 U.S. at 645–47, 9 S.Ct. 177. Though paid by the state, and acting pursuant to his official duties, the court reporter was tasked with essentially administrative and clerical responsibilities, to wit compiling and summarizing judicial decisions, rather than the promulgation of binding legal edicts. Id. at 646, 9 S.Ct. 177. There was therefore “no ground of public policy” standing in the way of his works’ copyrightability. Id. at 647, 9 S.Ct. 177.

In contrast, the judges in Banks, when considered in their relationship to the sovereignty of the People, fulfill a different function than the court reporter in Callaghan. Legislators and judges, unlike other government workers, are peculiarly entrusted with the exercise of sovereign power to write or officially interpret the law. Since the power to make law rests ultimately and exclusively with the People, the primary, official duty of lawmakers and judges is therefore to act as agents of the People. While government workers like the reporter in Callaghan might also be said to be engaged in conducting the People’s business, their relation to the exercise of sovereign power is more attenuated. As a result, if a government work is created by a public official who is so empowered, it is substantially more likely that the work is constructively authored by the people.

In light of these considerations, that the Georgia General Assembly is the driving