Cite as 906 F.3d 1229 (11th Cir. 2018)
(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.[1]
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.[2]
In light of these considerations, that the Georgia General Assembly is the driving
- ↑ Among other things, there is a substantial public policy interest in public access to state-created legal edicts for many of the same reasons that Congress decided to make all works of the federal government uncopyrightable under § 105, namely because providing free access to such works promotes an informed citizenry. See Veeck, 293 F.3d at 799 (“Citizens may reproduce copies of the law for many purposes, not only to guide their actions but to influence future legislation, educate their neighborhood association, or simply to amuse.”). And it is worth remembering that the Supreme Court grounded the meaning of the word “author” in Banks on its understanding of public policy.
Appellees suggest, nevertheless, that Georgia’s citizens can access the OCGA in over 60 libraries, so we ought not to be concerned about public access. Moreover, they say, citizens can access the unannotated version of the Code on a free LexisNexis webpage provided pursuant to Georgia’s contact with LexisNexis. We are unpersuaded. In the first place public ownership of the law by Georgia’s ten and a half million citizens means, as the Fifth Circuit put it, “ ‘the law’ is in the ‘public domain’ for whatever use the citizens choose to make of it.” Id. at 799. As for access to an unannotated version of the Code, the unannotated version is not the authoritative law in Georgia and may not be cited as such. Indeed, as the appellees themselves acknowledge, the OCGA “contains the official, or State of Georgia-approved, codified statutory text.”
- ↑ It is also worth remarking that basic principles of republican government show why the identity of the official who created the work
