AB
2880 will give state and local governments dramatic powers to chill
speech, stifle open government, and harm the public domain.
The California Assembly Committee on Judiciary recently approved a bill (
AB 2880)
to grant local and state governments copyright authority along with
other intellectual property rights. At its core, the bill grants state
and local government the authority to create, hold, and exert
copyrights, including in materials created by the government. For
background, the federal Copyright Act prohibits the federal government
from claiming copyright in the materials it creates, but is silent on
state governments. As a result,
states have taken various approaches
to copyright law with some granting themselves vast powers and others
(such as California) forgoing virtually all copyright authority at least
until now.
EFF strongly opposes the
bill. Such a broad grant of copyright authority to state and local
governments will chill speech, stifle open government, and harm the
public domain. It is our hope that the state legislature will scuttle
this approach and refrain from covering all taxpayer funded works under a
government copyright.
What Does the Bill Do?
AB 2880 sets out to "clarify" that all works created by public
entities are eligible for intellectual property restrictions. This
includes trademarks, patents, trade secrets, and copyrights. As things
stand today, works created by California state and local governments
(like reports, video, maps, and so on) aren't subject to copyright
except in a few special cases. That ensures that Californians who funded
the creation of those works through their tax dollars can use those
works freely.
The bill would change California from having one of the best policies
on copyright of any U.S. state to among the worst. It authorizes public
entities to register copyrights in their work. That means that state
and local governments will have the power to seek statutory damages that
can reach as high as $30,000 per infringement and potentially as life
altering as $150,000 for willful conduct against people who use
state-created materials. Therefore, if a citizen infringed on a state
owned copyright by making a copy of a government publication, or reading
that publication out loud in a public setting, or uploading it to the
internet, they could be liable for statutory damages. The harms felt by
this bill's approach are wide ranging because it would take very little
to claim that a work is protected by copyright law.
Imagine local officials having the power to issue a DMCA takedown
notice of YouTube videos of city council meetings simply because they
did not like them (sounds crazy? read on).
Chilling Effect on Free Speech
We've seen many copyright claims that are in reality attempts to
censor speech. California local and state governments are not exempt
from the temptation of suppressing disfavored speech under a copyright
claim as evidenced by the
Teixeira case. In 2015, the city council of Inglewood
had filed a lawsuit against a citizen
(Teixeira) for uploading video clips of city council meetings to
YouTube with his criticisms of the mayor. The lawsuit was dismissed by
the court outright because California cities don't have the power to
claim copyright. The court went even further to explain how Mr.
Teixeira's use of the videos to criticize the mayor was a fair use. So
while the litigation ended on the correct note (though it
cost Inglewood taxpayers $110,000 in legal fees), it demonstrated how copyright law can be abused in the hands of government.
If all works produced by state and local government from city council
recordings to documents that embarrassed a local official become
subject to copyright law, the
Teixeira case really represents a
harbinger of things to come. Citizens concerned with litigation threats
will refrain from sharing or copying government works despite the fact
that their tax dollars created those works. Worse yet is the perverse
incentive for governments to litigate given the substantial money that
can obtained through statutory damages.
Restrictions on Open Government
In an attempt to address this obvious potential for censoring the
public by exerting copyright controls on state owned works, the bill
provides an exemption for all works requested under the California
Public Records Act (CPRA) but
explicitly reserves all of the
powers granted to a holder of a copyright (the holder in this instance
being the government). That means a state or local government cannot
resist a CPRA request for a document on the grounds of protecting
copyright. But by explicitly reserving all of the exclusive rights given
to a copyright holder, the state and local governments keeps
extraordinary powers to restrain the ability for a citizen to distribute
documents they obtain through a CPRA request. Those powers could be
used in many ways such as denying a citizen the right to make copies,
distribute copies, create derivative works of the original, or to
publicly perform or display the work. While fair use might apply, its
application can be uncertain and risky, and it's no substitute for
keeping copyright out of the mix altogether.
A Massive Loss to the Public Domain
Currently, California has one of the most citizen-friendly state
copyright regimes on the books where a vast majority of state created
works are free to the public with
only five exceptions.
All other audio, visual, and written work of state and local govenment
employees is in the public domain upon creation and free for the public
to use however they see fit. For the most part, this follows the federal
model where works created by taxpayer money are by default owned by the
public.
The federal approach makes sense when we consider the goals of the
intellectual property clause in the Constitution. The purpose of
providing a limited government monopoly through copyright was to
incentivize creativity and provide a market mechanism to monetize that
creative expression. However, governments do not need an incentive
because their source of funding comes from taxes and the government
employees creating the works are already compensated by the public. The
general policy rationale against governments from exerting copyrights
over publicly funded works is founded on the premise that public funding
means public property and that it belongs to citizens by default.
EFF hopes that the state legislature will recognize the fundamental
problems with AB 2880's approach and forgo covering all state and local
government works under copyright law. As the
LA Times Editorial Board correctly noted
at the conclusion of the Teixeira case, "there's something
fundamentally outrageous about using tax dollars to sue a taxpayer over
the use of a public record that taxpayers paid to create."
If you're a California resident, tell your legislators to
reject this dangerous bill.
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