First Amendment Advocates Attack CA Bill to Copyright Public Works
“He pointed out that even speech — all forms of expression — can be copyrighted.”
Wednesday, June 01, 2016
By NICK CAHILL
SACRAMENTO (CN) — A bill giving California a copyright in records created at taxpayer expense is set for a floor vote Thursday in the state Assembly, over the stark warning of First Amendment advocates.
The bill would take California records and put them within the federal copyright and trademark protections accorded to private intellectual property, allowing the state and county governments to control their use. The bill would cover works such as maps, reports and recorded hearings.
“What we’re really aiming at are the trademarks,” said Assemblyman Mark Stone, D-Monterrey Bay, during a Judiciary Committee hearing in April. “I don’t think this bill reaches unnecessarily or reaches at all into the way copyrights are formed or attached under the federal law.”
Despite those statements, the bill continues to refer specifically to “public works” under “copyright protection.”
The bill’s sweeping change of status for public records comes out of a limited dispute between a ex-concessionaire and the federal government over the name “Yosemite National Park.” In an effort to prevent such a threat to any public creation in California, the Assembly Judiciary Committee unanimously passed AB 2880 in April.
“The bill is a remedy in search of a problem,” said Peter Scheer, executive director of the First Amendment Coalition based in San Rafael. “What they don’t realize is they’re stepping into a hornet’s nest.”
He pointed out that the federal government itself does not claim copyright protection in its public works and that absence has not caused any crises in government. He questioned why California would need to go so far as to threaten its own Public Records Act through the proposed legislation.
Jim Ewert, general counsel for the California Newspaper Publishers Association, said, “Our concern is the potential for an agency to use copyright as a means to limit the public’s ability to use records that a state or local agncy has created.”
The CNPA, however, has still not declared whether it opposes the legislation.
Ernesto Falcon, legislative counsel for the San Francisco-based Electric Frontier Foundation, first raised the alarm about the bill’s overreach, testifying before the Judiciary Committee before it was passed on a 9-0 vote.
“We have not seen any justification for moving government works out of the public domain into copyright and none has been provided for such a broad authorization,” he said in an email on Wednesday. “The Legislature has passed limited and narrow copyright bills in the past but this departs from that practice.”
The tide of criticism from civil liberties advocates resulted in a modest set of proposed amendments published Wednesday, in advance of Thursday’s floor vote. If the bill passes, it will then move on to the state Senate, in all likelihood assigned to the Senate Judiciary Committee.
The amendments appear to add a layer of regulation but do not undo the brunt of the legislation changing the legal status of public works.
The amendments require that California’s Department of General Services create guidelines for agencies to consider before attempting to copyright public works. They also restrict agencies from prosecuting copyright infringements until the agencies complete a “fair use analysis,” and limit the amount of applicable statutory damages.
“A public agency that releases a public record that is subject to copyright protection pursuant to paragraph (1) of subdivision (b) of Section 13988.3 shall issue the requesting party a license to use the record in a manner that is consistent with the rights provided under this chapter and that is considered an act of fair use under the federal Copyright Act. The license may restrict the holder from using the record for a commercial use only if such use would result in economic harm to the public agency or to the public’s interest,” says the revised version of AB 2880.
But the amendments have not dented the opposition by The First Amendment Coalition.
The bill’s underlying threat to civil liberties is contained in its reach, in the amount of material that will be subject to copyright laws, said Scheer with the First Amendment Coalition. He pointed out that even speech — all forms of expression — can be copyrighted.
“Copyright is not limited to special and valuable possessions, federal law covers all expression,” he said.
Falcon with EFF outlined a scenario where a newspaper could be sued for using recorded footage from a local city council hearing on its website. Based on the bill’s language, journalists could be forced to prove in court that they had a right to use the government’s copyrighted material even if they filed a public records request, said Falcon.
The risk of expensive statutory fines and litigation costs would have a dramatic impact on free speech and open government, he argued.
“Very often we see people pressured to just settle because they would rather pay a few thousand dollars rather than risk a judgment of $100,000,” said Falcon based on cases EFF has litigated. “It creates a real negative incentive to not fight the fight, or just take the copyrighted material down.”
Stone, who chairs the Assembly Judiciary Committee, defended Wednesday’s amendments, saying they protect the state’s intellectual property while also ensuring that copyrighted works can still be obtained by the press and public.
“I introduced AB 2880 to clarify how the state should manage and protect its intellectual property, while still ensuring that the public has access to information provided by the state. The measure implements several recommendations from a 2000 State Auditor report, and builds upon previous 2012 legislation,” Stone said in a statement to Courthouse News.
First Amendment advocates point to recent California cases where local governments attempted to deny access to public works based on copyright laws. In the lawsuits, the courts upheld the public’s right to use parcel map data and post local government hearings online.
Ewert with the CNPA cited a case involving the city of Inglewood near Los Angeles International Airport, where the city sued a resident for posting clips from a city council hearing on his YouTube channel. The city lost its suit against Joseph Teixeira after a federal judge ruled that the videos were public record and could not be claimed under California’s copyright law.
U.S. District Judge Michael Fitzgerald blasted the city for suing Teixeira over six short videos and ordered Inglewood to pay Teixeira $117,000 in attorneys’ fees in October.
“Indeed, the court can scarcely conceive of works that are more appropriately protected by the fair use doctrine,” Fitzgerald writes in the ruling. “He is engaged in core First Amendment speech commenting on political affairs and matters of public concern.”
In a second case, the First Amendment Coalition, supported by media organizations including the Associated Press, McClatchy and the Hearst Corporation, litigated an open records lawsuit against Santa Clara County over the county’s parcel map technology.
At the time, nearly a decade ago, the county was forcing residents to pay to access its digital parcel maps and it argued in court that the technology was protected by copyright and that it could legally exclude the maps from Public Records Act requests.
Scheer and the coalition successfully argued that the maps were created with tax dollars and therefore outside California’s copyright law. The Sixth District Appellate Court affirmed in a landmark decision that the county could not withhold the information from the records request.
If the Santa Clara County case were tried with AB 2880 in effect, the decision would likely be reversed and the county would have been able to continue charging for and denying access to the parcel maps, Scheer estimates.
A graduate of Harvard Law School, Scheer reiterated that copyright law is a complicated matter and warned that the California Public Records would be undermined and it would be much less useful to journalists, if the bill passes.
“I’m sure it’s going to be done with the best intentions initially,” he said, “but I’m also sure it will be abused once a journalist asks for something potentially embarrassing or newsworthy.”