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California may copyright its government's work

Government transparency advocates are warning against a measure in the California statehouse, up for a vote as early as Thursday, that would allow government agencies to copyright their affairs.

Yes, copyright.

Assembly Bill 2880 allows governmental agencies in the state to “own, license and license intellectual property,” and creates a database to track all works created by public agencies.

Critics fear the bill will give agencies the power to withhold government-funded works from the public.

If approved, the state would go from one of the most permissive in terms of making available work created with public funding to one of the most protective. But not at the expense of open government, insists the bill’s creator.

“We’re working very hard to be guardians of open information,” said Assemblyman Mark Stone, a Democrat from Monterey Bay and author of the bill. He said the measure is intended to clarify how the state manages its intellectual property.

“There is no clear authority in the state, and this would allow the state to protect its patents and trademarks, and clarifies that state agencies are allowed to create copyrights.”

Foes of the bill, which includes the Electronic Frontier Foundation, insist that current law – that is, limited rules – ensures the public has the access that such works deserve, and that it needs no adjusting.

A legislative analysis of the bill cites a dispute that began last year between the National Parks Service and a contractor that successfully kept its name on several landmarks at Yosemite National Park.

“The trademark dispute … posed the following question for the state," the analysis states. "Does a third-party contractor who enters into a contract with the state acquire any intellectual property rights over products and services a contractor creates and provides to the public that is funded with public dollars, even after the contract expires?”

Creating more law, though, will not help,  opponents insist  

“What is now free to the public, they are seeking to change to a permission environment,” said Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation. “This started as a trademark and contracting issue, the Yosemite issue, and now, ‘oh by the way, all state entities get these rights.’ It’s a dramatic step.”

Also noted by onlookers is a 2015 case in which the city of Inglewood, Calif., sued a resident, Joseph Teixeira, after he created and posted a series of videos criticizing the town’s mayor, James Butts Jr. The city claimed it owned any footage and therefore had a right to legally demand its removal. The case was dismissed with prejudice and the city was forced to pay the $117,741 in bills that Teixeira’s lawyers had run up defending the case.

While the proposed law does not affect municipalities directly – but could create a setting for copycat local ordinances – Stone said the Inglewood case was an example of what can happen when there is no clear-cut policy.

A legislative analyst in Sacramento, speaking on background, said a more typical application of the proposed law would apply to a government-created video, sold to benefit funding of a public agency – for example, a video created by the state parks agency and sold in gift shops.

“That money would go back to the state parks agency,” the analyst said. “So, to the extent that the state parks needs to copyright that information to protect the artistic value there, that is this law. Otherwise, it is released in public domain and the parks would not be able to generate any revenue from that.”

But Falcon said the measure is much broader than that.  “If that is what is sought, why not just make it specific to that?” he said.

The bill is eligible for a floor vote on Friday.

States have varying laws regarding government’s ability to copyright public intellectual property, while federal law definitively states, “copyright protection … is not available for any work of the United States Government.”

Most states, though, have no clear statute regarding copyright of public documents.

According to a state-by-state synopsis of the law assembled by Harvard Library, Florida is the most permissive, relying on a state appellate court’s 2004 ruling that public records may not be copyrighted, although some exceptions are noted. This includes material created by public universities and data processing software created by any state agency – specific statutes that are similar to California’s current law.