AB 2880 will give state and local governments dramatic powers to chill speech, stifle open government, and harm the public domain.
[Ernesto Falcon, EFF, Link (CC-BY)] 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.”
