Copyright California: How a new bill could curtail access to public information

Copyright California
Image credit: Sunlight Foundation

All of us do it sometimes. When something bad happens to us, we occasionally overreact in our efforts to try to be sure that we could never experience the same problem again. Sometimes by doing this, unfortunately, we end up creating a new problem — and maybe a worse one — in trying to prevent a recurrence of the original issue.

It looks like this is happening right now in California regarding the state’s copyright laws.

Last spring, in a brazen move, the concessionaire for Yosemite National Park revealed that it had privately registered legal trademarks for the historic names of many of the elements of the national park, including the very name “Yosemite National Park.” Delaware North’s assertion of ownership of historic names within the park forced Yosemite, at least for the duration of the legal challenge, to replace many of the traditional names in the park with new ones. (Yosemite has not been the only public subject of Delaware North’s secret trademarking: It also quietly obtained rights to the name “Space Shuttle Atlantis,” which may complicate things somewhat for NASA historians.)

Now, in response to this real affront to public interest, the California Legislature is considering AB 2880, a bill that would grant California’s state government broad latitude to presume a copyright over any and all of its work. This bill, if it passes, will entirely change the nature of what is available in California as truly public information.

This legislation takes an understandable public concern about a specific problem and uses it to endanger public access to all of the state’s publicly funded work. It does not focus on permitting a trademark to simple names of California places, but instead makes reproducing any work by public agencies potentially subject to legal penalty. Up to this point, California has done an admirable job of carefully balancing the costs and benefits of particular restrictions on the use of public work. In the past, where there has been a specific problem, the state has created specific statutory solutions for those problems.

This bill would have the state start from the presumption that all public work should be eligible for copyright. While the bill includes language to preserve the public’s right to see the copyrighted public work — to permit public “disclosure” of government work — it does not preserve the public’s right to use the newly copyrighted public work.

If opening data is about “defaulting to open” in protecting the public’s legal right to use and re-use public data, then this bill works almost directly in opposition to this principle, ensuring that California government can “default to copyright” and decide any and all legally restrictions are in its best interest. After all, any piece of work could potentially have commercial value, to someone, somewhere — and thus be deemed fit for copyright.

Electronic Frontier Foundation, in its opposition to AB 2880, brings out the immediate public interest problem in this proposed law by highlighting the 2015 City of Inglewood v. Teixeira case, in which Inglewood attempted to sue resident Joseph Teixeira for uploading videos of a city council meeting to YouTube. The judge threw out the case on the basis that the city could not copyright its public meetings. With AB 2880 in place, California state government would be free to pursue lawsuits against people who publicly shared work produced in any public California state venue. While there’s a good chance they would not be successful, the cost of legal defense would be too difficult for most people to manage, and the cost of losing — even if unlikely — would be financially devastating. Fear of legal liability alone could produce a massive chilling effect on people who want to talk about their government.

To add insult to injury, new floor amendments to this bill also pose a chance of further complicating state procurement processes, prospectively canceling all state contracts which fail explicitly to address the issue of intellectual property rights. Although the Yosemite debacle occurred under a federal contract with the National Park Service, and not with a California state entity, it is all California state entities that would be paying the price in terms of time, a consideration of which intellectual rights to withhold, and an additional layer of legal review for their contracts.

We certainly hope that the California Legislature won’t so dramatically change the balance of access to California’s public information. This bill would have a chilling effect on the use of California’s public work in a state which otherwise has been taking positive steps for public access.