California agencies have no business claiming copyright protection for public records

BY PETER SCHEER—When deciding how to vote on one of the hundreds of bills in the political sausage maker that is our State Legislature, lawmakers should always ask this one question: Is there a problem that this legislation seeks to fix?

Given that all laws have costs—even if their magnitude is debatable or unpredictable—a law that does nothing to fix any discernible problem is, by definition, a bad law. Legislators who vote for such laws violate the politicians’ version of the Hippocratic Oath: “First, do no harm.”

On the short list of this year’s bills that flunk the “no harm” test is AB 2880. An obscure bill that has already won approval in the Assembly, AB 2880 would authorize state agencies to claim federal copyright protection in documents created by public employees. Copyright? you say (yawning). Isn’t that for artists, musicians and other creative types in the private sector? Yes, but the federal Copyright Act also allows states to elect copyright protection.

This is a big deal. Copyright protection for government records poses a real danger because copyright is in direct conflict with the public’s right of access, under state FOI laws, to government records.  The whole point of FOI laws, like California’s Public Records Act, is to give citizens the right to information, typically in the form of records, about government policies and actions. Unless the requested records are subject to a specific exemption, an agency must turn them over. The records are in the public domain.

The whole point of Copyright law, on the other hand, is to give the owner near total control over copyrighted content, including control over who gets to see it, who gets to use it, and how they can use it. Copyright confers power, with only limited exceptions, to keep content out of the public domain. And when you consider that virtually all records in an agency’s possession—even  one-sentence notes or emails—are covered by copyright (are “copyrightable,” to use the legal vernacular), you realize just how much harm AB 2880 would do.

 If AB 2880 is enacted to give government agencies  authority to assert copyright over their records, compliance with the PRA, now mandatory for state agencies and local governments, will be merely optional.  Request records from a government agency and the agency, invoking copyright, will be free to release them or not, entirely at its option (and whim).

And this is not just a theoretical risk. Even without AB 2880, government entities in California have stretched the law to use copyright as a means of censoring political critics and depriving the public of intellectual property paid for with tax dollars.

In 2015, the mayor of Inglewood claimed copyright infringement to silence a citizen who used video excerpts from city council meetings to criticize the mayor and his policies. A federal district judge threw out the city’s lawsuit, ordering Inglewood not only to desist in trying to censor the citizen-critic, but also to pay his legal fees. City of Inglewood v. Joseph Teixeira.

Santa Clara County, claiming copyright in a GIS “base map” created with public funds, charged license fees in six- and seven-figures to rent portions of the base map. FAC sued under the PRA, demanding free and unrestricted access to the base map as a public record. The Court of Appeal, in a landmark 2009 decision, held that the county’s unilateral assertion of copyright was not sufficient to block FAC’s access.

The Court said the county’s copyright claim, in the face of the conflicting demands of the PRA, could only be sustained on the basis of explicit legislative authorization. Santa Clara County v. First Amendment Coalition.  AB 2880, in effect, attempts to provide that authorization (and overturn the outcome in the Santa Clara case).

So much for the harms that AB 2880 would cause. While they are reason enough to oppose this legislation, does the bill offer any countervailing benefits? Remember, every lawmaker should ask one question: Is there a problem that this legislation seeks to fix?

The question can be restated as whether state agencies and local governments in California produce content that needs to be treated as proprietary, and kept from the public domain—bearing in mind that all government content is financed by taxpayers? The answer is clearly no. (If you disagree, point out examples and win a free two-year membership in FAC!).

Any doubt on this point should be dispelled by the following: Since 1976, all branches of the federal government have been stripped of the power to claim copyright in government-created content. The President’s speeches, the Supreme Court’s opinions, Congressional reports, and the complete written output of a thousand federal agencies, commissions, departments and offices–all have been in the public domain for forty years.

The federal government still stands. Life as we know it did not end. If the entire US government can manage without any copyright protection at all, it is simply inconceivable that California, or any other state, needs copyright. Tell your representatives in Sacramento to reject AB 2800 and keep the public domain public.

——

Peter Scheer, a lawyer and journalist, is executive director of FAC. The views expressed here do not necessarily reflect the views of FAC’ Board of Directors.

 

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