Tag Archives: ownership

California Assembly Aiming to Copyright All State & Local Government Works

*Guest post by Caile Morris, ARL Law & Policy Fellow*

On March 15, 2016, the California Assembly amended a Bill, AB-2880, dealing with state intellectual property. Introduced by Assemblyman Mark Stone in late February, the main goal of AB-2880 is to grant local and state governments the authority to create, hold, and exert intellectual property rights. The federal government is prohibited by the Copyright Act from claiming copyrights in any of the materials it creates. As TechDirt explains, the states are free to create their own approach on their copyright policies, and may decide what, if anything, a state can claim copyright in. This bill’s effect is incredibly detrimental, and if it is passed into law, it will deny California citizens the right to free and easy access to state laws and other government works.

Prior to AB-2880, California had one of the best state copyright law policies, and if AB-2880 is passed then it will drop to being one of the worst. EFF explains that previously, California forewent almost all copyright authority over works created by public entities, ensuring that the citizen tax dollars used to create the works ultimately benefits the citizens paying the taxes. California currently only has five special cases where it asserts copyright over public works. However, as EFF points out, if AB-2880 passes through the rest of the California Legislature then California state and local government agencies will “own, license, and if [they] deem appropriate, formally register intellectual property [they create] or otherwise [acquire].”

The California Committee on Judiciary, which Assemblyman Stone chairs, responded to the criticism of AB-2880 by explaining in a policy analysis that the bill would not interfere with information requests through the California Public Records Act, and thus provides the requisite amount of transparency and access. However, this ignores the fact that the works created by the local and state governments should be available to the public easily and automatically, rather than through the arduous process of filing an information request. The policy analysis itself noted that, “state ownership of intellectual property might restrict the dissemination of information.” The California State Auditor also mentioned public policy considerations when recommending how to form a state-wide intellectual property policy: “the State can ensure that the public benefits from state-owned intellectual property . . . by placing it into the public domain free of cost.” She specifically cautioned against the use of copyright protection for government works because of:

[T]he need to balance the State’s interest in protecting government publications through the use of a copyright with the public’s right of access to government records . . . . [C]opywriting government publications can be controversial; given that taxpayers already paid once to support the creation of the work, one can argue that they should not have to pay royalties to use or reproduce the written work.

While some state officials and legislators note the public policy implications of passing AB-2880, many in the Assembly seem to believe that the bill’s effect on dissemination of information is negligible compared to the benefits of government ownership of government-created intellectual property.

The intentions under which AB-2880 was created are well meaning. In early March 2016, an ugly legal battle began between Yosemite National Park and Delaware North, the concessions vendor within the Park that trademarked many of the common names of landmarks and corresponding logos. However, the knee-jerk reaction to the actions of Delaware North by Chairman Stone and the rest of the California Assembly is a disservice to the purpose of intellectual property to “promote the progress of science and useful arts,” as well as to the constituents who rely on the Legislature to provide tax-funded works and laws to the public by default.

Furthermore, as the Library Copyright Alliance (LCA) wrote in a 2014 hearing before the House Committee on the Judiciary on State Laws and Building Codes Under Copyright,

[C]itizens must have free access to the laws that bind them. This fundamental policy is more compelling now than ever before. Government at all levels continually increases its regulation of the activities of citizens both at work and at home. Moreover, the Internet and other forms of technology, by integrating activities conducted at home with the outside world, are increasing the likelihood that private actions will be subject to legal rules governing the public sphere. Because their activities are more likely to be subject to regulations, citizens have a greater need to have easy access to the law so that they can better understand their expanding legal obligations.

As EFF explains, this kind of intellectual property ownership by California would have a chilling effect on free speech, restrict open government, and lodge a massive hit to the public domain. Both EFF and Creative Commons have called California residents to action by contacting their state representatives and demanding that the works created by the state and local government, paid for by tax dollars, remain in the public domain for all Californians to use.

A basic government function is to provide citizens with free access to the laws. If this function is not carried out at the state level, or requires a fee or license to view or reproduce these laws, it sets a dangerous precedent. Citizens who are increasingly regulated in their everyday lives have a substantially greater need for simple, cost-free access to state and local laws.

To withhold laws and other government works from citizens discourages informed participation in any form of governance, from the town hall meeting to petitioning state legislators for changes in the state laws. In addition, copyrighted government works could result in frequent law-breaking by citizens engaging in what they believe to be innocent activities, simply because those citizens cannot access the laws. Assemblyman Stone may have had good intentions when proposing AB-2880, but what he does not grasp is that this bill has far-reaching, detrimental effects and indeed is counterintuitive to the ideals of American democracy.

Who Owns the Copyright Industries, and Why It Matters

The US Department of Justice might have seen the light and decided not to side with foreign publishers against a US public university, but it appears that the US copyright system in general takes the side of foreign companies against the US public.

That’s the inference I draw from an important new report, Foreign Ownership of Firms in IP-Intensive Industries and handy infographic by Jonathan Band and Jonathan Gerafi, which shows that the US’s rightsholder-friendly copyright laws amount to a kind of reverse protectionism: we punish US taxpayers, domestic industries, and the public interest in order to protect foreign corporations.

The numbers are striking, especially in the publishing industry. Simply put, the vast majority of the publishing industry is foreign-owned – over 80% of the revenue flowing to the “big 6” publishers is flowing overseas. When you focus on STM publishers, the numbers get even worse – around 90% of the STM publishing industry is foreign owned by revenue.

The recording industry is nearly as bad, with around 75% of the revenue of the “big three” labels flowing overseas. Gaming console makers are similarly dominated 3-to-1 by foreign companies.

The motion picture industry looks like a star-spangled standout, with most of the industry owned by US companies, but Band and Gerafi dig deeper to show that there is still a good chunk of work and revenue flowing overseas for shooting locations, production work, foreign talent, and the like.

In short, the tangible benefits of the US copyright system with its extravagant term of protection, its punitive statutory damages, and all the other well-known and documented dysfunctions, seem to flow mostly to huge foreign corporations.

It wasn’t always thus. It’s a truism among copyright wonks that the US used to be a “pirate nation” – US law for many many years did not award copyright to foreign works. Indeed, Benjamin Franklin, who was one of the country’s first librarians, was also arguably one of our first pirates – he ran a press in Philadelphia that profited from the unlicensed printing and sale of the works of European authors.

What a difference a couple of centuries makes. In addition to the overwhelming foreign domination of the copyright industries, American copyright law on its face is definitively tilted in favor of foreign authors and foreign rightsholders. Their works were airlifted out of the public domain by the Uruguay Round Agreements Act, which was challenged and vindicated in the Supreme Court in the Golan case. Foreign rightsholders are not subject to the requirement of registration prior to bringing lawsuits. And the list goes on.

Together with the growing consensus that some of the worst problems in our copyright system owe to our accession to an international copyright treaty called the Berne Convention, this report should give momentum to the movement to recalibrate copyright so that it returns to its Constitutional purpose of “promoting Progress” for the benefit of the US public at large.