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
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.
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.