A bill introduced by the members of the California Assembly Committee on Judiciary (Assembly Members Mark Stone (Chair), Alejo, Chau, Chiu, Cristina Garcia, and Holden) on February 25, 2016 has made its way out of committee and is headed to the State Senate.
TechDirt’s Mike* Masnick raised a red flag about this AB 2880 in his April 19, 2016 post titled: California Assembly Looks to Push Cities to Copyright and Trademark Everything They Can.
2015-16 AB 2880 State Intellectual Property appears to be a reaction to the intellectual property rights and trademark issues related to Yosemite and its concessioner, Delaware North.
According to the 05/13/16 Assembly Floor Analysis Comments:
“Last year, a well-publicized trademark dispute arose between the National Park Service (the federal entity that manages federal parks) and Delaware North Company (the departing Yosemite concessioner) over attractions and facilities in Yosemite National Park. The trademark dispute between the National Park Service and Delaware North put a spotlight on governmental intellectual property rights, and posed the following question for the state: 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?”
This is a fair question to ask, but AB 2880 is not the best answer to this situation. I’m not a lawyer nor have I seen the actual contract so this is just an opinion based on what has been published in the legislative materials, but AB 2880 seems to be reacting to what sounds like a contract that was not well written with regards to IP rights.
According to the text and Assembly Analyses, AB 2880 if enacted will further tie the hands of libraries and archives to distribute, provide access, digitize, digitally archive and preserve state government publications. It will curtail the posting and re-distribution of state government information on individual’s and organization’s blogs and websites because they need copyright clearance to do so, for materials that have been created by and for the public!
Perhaps a better, more simple solution that favors access to information and transparency would be to require agencies to use a Creative Commons Attribution Non-Commercial license.
Even though a California court case (County of Santa Clara v. Superior Court, State Copyright Resource Center, California http://copyright.lib.harvard.edu/states/california/ ) prohibits copyrighting of state government information unless there is specific statutory authority enacted to do so, the fact that there isn’t a clear policy statement or even a law stating that the materials are in the public domain, still enables copyright to be affixed at moment of creation for these materials. Proposed Section 1 of the bill begins to address this problem, by developing methods and sample language to deal with state intellectual property, but…
…proposed Section 2, seems to give agencies too much liberty: “A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires.”
The Electronic Frontier Foundation (EFF) sums up the problem with this language:
“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.”
Read the rest of the EFF post regarding AB 2880 including their opposition letter addressed to Assembly member Mark Stone, who introduced AB 2880.
**UPDATES**
May 19, 2016, Creative Commons posted this plea to their blog: Don’t let California lock down public access to government works
June 8, 2016, AB 2880 goes to the Senate Judiciary Committee, Electronic Frontier Foundation posted an update along with coalition letters: Growing Coalition Opposes California Exerting Copyright Over Public Records: The bill now sits with the State Senate Judiciary Committee and must be defeated.
-Kris Kasianovitz
*Corrected Mike’s name from Mark to Mike!