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Growing Coalition Opposes California Exerting Copyright Over Public Records

DEEPLINKS BLOG
June 8, 2016

The bill now sits with the State Senate Judiciary Committee and must be defeated.

California's A.B. 2880 will give government agencies the power to put copyright restrictions on their work. That means state bureaucrats will be able to wrap their reports, research, e-mails, and even videos of public meetings in onerous legal restrictions, backed by federal lawsuits and six-figure penalties. The bill would change California from one of the most open state governments to one of the least open. EFF opposed the bill and explained its dangers to the State Assembly.

Californians, tell your lawmakers to oppose this dangerous bill.

Unfortunately, the Assembly took up and passed an amended version of the bill that resolved almost none of its problems. In response, more than twenty free speech, open government, and public access organizations have rallied against the bill and have urged the state Senate to reject it. In addition, the California Newspaper Publishers Association, the Internet Association, and the California Chamber of Commerce have also opposed A.B. 2880. A coalition of libraries and researchers have also voiced their opposition to the bill's impacts on speech, openness, and public access to state information.

Why is opposition growing? Because the issue at the heart of A.B. 2880 is that federal copyright law and California's Public Records Act (the state's version of the Freedom of Information Act) do not mix. Copyright creates the power to restrict the dissemination and use of works, while the Public Records Act is meant to force disclosure of public records. The amended A.B. 2880 brings this conflict into sharp relief. The bill needs to be stopped.

What Has Changed in the Bill?

The most substantive change was to drop local governments from gaining a copyright authorization. Likely, legislators could not simply ignore the city of Inglewood's recent attempt to censor a critic through copyright law. The judge presiding over the case found that the "city's most plausible purpose was to stifle Defendant's political speech after he harshly criticized the City's elected officials." That being said, the change to the bill misses the real problem. Local governments are no more prone to use copyright law as a means to control access to government works. Any government official may be tempted to abuse that power once it's given to them. We don't see this at the federal level because Congress wisely prohibited the federal government from claiming copyright in any of its work.

EFF recommended that the state legislature follow the federal approach, but at this stage it seems clear that the Assembly wants to grant copyright authority to state entities without explaining in detail why. You won't find answers in the original fact sheet the Assembly Judiciary Committee produced in support of the legislation. That document focuses on trademarks and contract issues and not on copyrights. Nor does it focus on the impacts on the California Public Records Act and California citizens' constitutional right to disclosure of public documents.

The Bill Creates a Litigation Risk for Citizens Where None Existed Before

Currently, citizens are entitled to use most state videos, pamphlets, publications, photographs, reports, communications, and related materials without restriction or permission. If A.B. 2880 were to become law, citizens will face possible litigation as a new grey area of infringing uses will cover all newly copyrighted state works. This new provision demonstrates the problem:

(c) A public agency that releases a public record that is subject to copyright protection pursuant to paragraph (1) of subdivision (b) of Section 13988.3 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. The license may restrict the holder from using the record for a commercial use only if such use would result in economic harm to the public agency or to the public’s interest.

First off, the fair use language simply gives the public a right that federal law already gives them. The state can't restrict fair uses in the first place, so "licensing" fair uses is a hollow gesture. Aside from that, the license the state envisions issuing citizens with their copy of a state record does not apply to "commercial uses." It is worth remembering that fair use is often a fact-specific determination, and that many fair uses are also commercial. Enter that grey area, and you could be subject to damages as high as $150,000 per work--even if there's no financial harm to the state. This is a radical departure from the status quo where right now anyone can copy, distribute, and upload most California public records. You never needed the permission of government to do any of those things. That makes sense: those records were created using taxpayers' money, and the state doesn't need the incentives of copyright to do its work the way that a private actor might.

The Bill Exempts State Copyrighted Works from Public Disclosure

An eye-opening provision was added to the bill in the final hour before it passed the Assembly. Right in the text of the bill, the legislators acknowledged that it would "impose a limitation on the public’s right of access to the meetings of public bodies and the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution." This contradicts the legislators' claims that the bill merely "clarifies" state law. In fact, A.B. 2880 would turn state law 180 degrees in the wrong direction for free speech and open government.

This bill is about state government agencies desiring the power of copyright to change the status quo of free access to public records. EFF will continue to oppose the bill and work towards its defeat so long as this remains the central goal of the legislation, but we need your voice in the fight. If you are a California resident, please click below to contact your state legislators and let them know you oppose A.B. 2880.

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