A bill now being considered by California lawmakers is calling attention to the uneasy balance between copyright principles and public-records law. AB 2880, introduced by the Judiciary Committee and revised May 31, would allow state agencies to claim copyright protections in government works, while at the same time attempting to restrict agency efforts to use their copyrights to circumvent the state Public Records Act.
Proponents say the bill brings order to California’s legal framework for state intellectual property, critics say it threatens the public domain—and I say it does both. The bill was seemingly born from good intentions, and in some respects it has been improved by recent amendments, but the devil lies in the drafting details and their potential consequences.
Copyright of state government works: It’s complicated
Under the U.S. Copyright Act, works produced by the federal government are not copyrightable. That rule reflects the principle that the government does the people’s business and, thus, its works should be easily and freely accessible to the people.
But that rule, with the exception of legal authorities like statutes and judicial opinions, does not apply to works produced by state or municipal governments. States are generally free to make their own rules in this sphere—and actual practices are “wildly variable,” according to a 2013 report in Communications Lawyer, whose lead author was NPR senior associate general counsel Ashley Messenger.
In fact, the rules seem variable even within California, depending on which sources you’re looking at. The state’s Sixth District Court of Appeal ruled in 2009 that agencies may claim copyright in state works only if they have explicit statutory authority to do so, and some agency websites include notices that their content, “unless otherwise indicated, is considered in the public domain.” But as Messenger pointed out in her report, the state attorney general’s office has published resources suggesting that copyright protections apply generally to public records.
Twice the state auditor has recommended, in 2000 and 2011, that the legislature take action to help public agencies manage and protect the state’s intellectual property—and in 2012, the legislature did pass a law requiring the Department of General Services to develop related guidance. But the agencies are not even required to review or follow it.
A case from 2015 shows how these issues can affect the public. The city of Inglewood sued a citizen who routinely posted YouTube clips, overlaid with his own commentary, of city council meetings. The videos were available as public records, but the city claimed that it owned the copyrights in them and sued the citizen for infringement. A federal judge, citing the 2009 case, concluded that “in the absence of an affirmative grant of authority to obtain and hold copyrights, a California public entity may not do so.” He ruled against the city.
What the bill would do
AB 2880 emerged from those developments—and from concerns about a trademark dispute involving Yosemite National Park that spotlighted the issue of government intellectual property rights. Assembly member Mark Stone, D-Monterey Bay, who co-sponsored the bill, said in a written statement that its purpose is 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.” Similarly, the Judiciary Committee’s bill analysis says, “[I]t has always been the intent of the Legislature to ensure that California agencies can own, hold, and acquire intellectual property,” and thus the bill “clarifies” the law.
That language suggests that state works have been generally copyrightable all along—but I’m not convinced. There’s plenty of contrary evidence, such as the state’s historically strong commitment to enriching the public domain, and the fact that the legislature has at times passed specific measures selectively granting public bodies authority to obtain copyrights.
That said, the bill nods to many of the right concerns. It stipulates that a records request can’t be denied because the information requested is protected by copyright. It does not require agencies to own, license, or register intellectual property they create or acquire, and it grants the authority to do so only to state agencies, not to municipal governments like the Inglewood council. (This reflects a change from an earlier version.) It also says that before initiating an infringement action, a state entity must consider whether fair use applies—and commands that no state entity may receive statutory damages “except in cases of willful infringement where there is no evidence of fair use.”
The bill also maintains a reasonably strong presumption that state works will enter the public domain. Even when a state work would otherwise be subject to copyright protection, it will be released into the public domain unless any of the following criteria are met:
(A) The work has commercial value, and the release would jeopardize the integrity of the work.
(B) The release would infringe upon the property interests of a third party.
(C) The release would detrimentally affect the state’s interests in its trademarks, service marks, patents, or trade secrets.
How the bill could chill public debate
Despite those limitations, the bill still opens a can of worms. It doesn’t permit agencies to withhold public records on the basis of copyright, but if a record satisfies one of the three prongs above, the bill says the agency “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.” That means the agency would enjoy some rights to control how such a record is used.
Relatedly, it’s not difficult to imagine records that would satisfy one of the three prongs and thus not enter the public domain. I’ve written before about the public-records challenges created by public-private partnerships and the growing privatization of public services. The second prong could invite agencies to try to control how such records are used—in the name of protecting private property interests. Gamesmanship could be tempting, even in the face of fair-use protections.
With all that in mind, I worry about the chilling effect of potential copyright claims. Rather than joining a public debate about some issue by sharing a government document or video, a citizen might demur or self-censor. That’s more likely if the stock of copyrightable works is enlarged and citizens are expected to evaluate routinely whether government information is in the public domain. I worry about the loss to the public discourse as well as the public domain.
So, although I recognize the bill probably would bring order to California’s legal regime for state intellectual property, I can’t bring myself to like the bill. To my eye, the drafting leaves too much uncertainty regarding the use of records that should be presumptively public and subject to debate—and I hope California lawmakers will come to the same conclusion.Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.