California State Copyright

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#1

EFF: California’s Legislature Wants to Copyright All Government Works:

AB 2880 will give state and local governments dramatic powers to chill speech, stifle open government, and harm the public domain.

(Aside: decent partial description of the harms of copyright. Why do we give private entities these dramatic powers?)

According to the very useful State Copyright Resource Center, California has the second or third most open law with regard to government works among U.S. states (bested by Florida and maybe Massachusetts). AB 2880 which is making its way through the legislative process would erase the relative openness of California government works.

Apart from wanting to make the aside above, I note this bill here to point out two things to watch:

  • Trend toward maximum IP, even where there’s lots of hype about “open” (government in this case). One step away from, two steps toward WPIO, until and unless there exist powerful concentrated pro-commons entities which compete against and ultimately destroy proprietary production in the market and politically.
  • It’ll be interesting to see how powerful the reaction against AB 2880 will be, given that there’s a relative concentration of pro-commons entities in California.

Here’s the EFF’s letter, which they link in .docx format:

March 28, 2016

The Honorable Mark Stone
Chairman
Assembly Judiciary Committee
1020 N Street – Room 104
Sacramento, CA 95814

Dear Chairman Stone:

We write to you to express our opposition to the current version of AB 2880, legislation that would for the first time grant all state and local public entities the blanket authority to create, hold, and assert copyrights. The bill represents a significant shift away from California’s role as one of the strongest state contributors to the public domain.

The purpose of copyright law is to incentivize creativity by granting a monopoly over a work for a limited time. However, such incentives are unnecessary when the resources are provided from the taxpayer. As a result, Congress has expressly excluded all work done by federal government employees from the scope of copyright, so that taxpayers can immediately benefit from new contributions to the public domain. AB 2880 would chart a different course by granting state and local governments the power to assert copyrights over taxpayer-funded work. This presents a serious issue, as it would grant state and local government the power to suppress the dissemination of government-funded works for nearly a century after creation, despite the current Public Records Act exemptions in the bill.

The legislative history on state copyright law indicates that the legislature never intended for all divisions of government to have the power to assert copyright. In fact, the legislature’s approach has favored enriching the public domain. For example, state law encourages state-funded research to be put into the public domain where appropriate. Publications involving consumer information and county created geographic information system basemaps are automatically put into the public domain under state law. In only five specific and limited circumstances has the state legislature decided to grant copyright authority to state employees. Those instances are for computer software, community colleges, county boards of education, works created by the Department of Toxic Substances Control, and works created under contract with the California Health and Human Services Agency.

We urge you to reconsider the approach AB 2880 charts out to avoid the unintended consequences of dramatically expanding copyright restrictions over all state and local government created works.

Sincerely,

Electronic Frontier Foundation

https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201520160AB2880 shows how AB 2880 would change current law. The dangerous bits appear to be these two additions:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires.

The assembly’s analysis views this as a clarification, but it could open the door to widespread use (or copyright apologists would say, abuse) of copyright by local government, as the EFF says, “to chill speech, stifle open government, and harm the public domain.”

(A) A state agency shall not enter into a contract under this article that waives the state’s intellectual property rights unless the state agency, prior to execution of the contract, obtains the consent of the department to the waiver.
(B) An attempted waiver of the state’s intellectual property rights by a state agency that violates subparagraph (A) shall be deemed void as against public policy.

It is not clear to me whether this addition might serve as a barrier to agencies deciding to publish material under open licenses. In the meantime, I assume it will foster such barriers in practice.


#2

Techdirt covered the bill last month noting some of the motivation:

Now, here’s the part, where I note why I think Assemblymember Stone and his colleagues meant well, even if they’re proposing a horrific idea here that would be immensely troublesome for a variety of reasons. Remember Yosemite? Earlier this year, the famed national park had to dump a bunch of classic and traditional names because it got into a legal fight with the previous “concessions vendor” in the park, who had received a trademark on many of the famous names in the park, and was demanding many millions of dollars in compensation to allow Yosemite to continue using those names.

From what we’ve heard, AB 2880 is something of a reaction to that totally ridiculous situation. And we agree that what happened with Yosemite was ridiculous and never should have happened, but it appears that Stone et al. got exactly the wrong message out of it. Unfortunately, it’s the message that legacy copyright industry players have been falsely trying to indoctrinate the world with, and it’s that everything must be owned somehow. The end result? Don’t want a concessions company to own the name “Curry Village” or “Ahwahnee Hotel?” Well, then make sure a state entity (in this case, Yosemite Park) owns the rights to them.

This solution, of course, totally ignores the much better and more appropriate solution which is simply don’t grant intellectual property monopolies on such things in the first place. The concession company should never have received those trademarks. But the California legislators pushing this bill don’t even seem to consider that. They seem to come from the incorrect (and dangerous) view that everything must be owned and, therefore, if it must be owned, why not make sure the public entity does the owning.


#3

Some discussion at https://lists.wikimedia.org/pipermail/publicpolicy/2016-May/thread.html#1375

EFF action alert

Creative Commons blog post


#4

EFF reports success:

EFF warned the bill’s authors about these problems in early May. Soon after, numerous other organizations joined in opposition from library groups to open government advocates to newspapers, Internet companies, and the California Chamber of Commerce. And more than 360 Californians wrote to their state legislators through EFF’s Action Center to sound the alarm.

Those efforts have paid off. This week, the bill was amended to remove the new intellecutual property powers and the new exemptions to CPRA. What remains are provisions for better tracking of state patents, trademarks, and copyrights, and a new requirement that state agencies “consider” the intellectual property rights of all parties when they write contracts. These changes should help avoid situations like the ongoing trademark dispute over hotels and campgrounds in Yosemite National Park, without harming public access to government records and data.

Based on the new amendments, EFF is dropping its opposition to A.B. 2880. Thank you to everyone who weighed in on this issue for sending a strong message that the abuse of intellectual property laws can harm many different sectors of society, and that preventing those abuses needs to be a top priority for our lawmakers. Thanks also to Assemblymember Mark Stone for listening and responding to Californians’ concerns with this bill.

Continuation of discussion linked above: https://lists.wikimedia.org/pipermail/publicpolicy/2016-June/thread.html#1402

Well done!