Hi all,
This bill passed the California Assembly (one of the two houses of the California State Legislature) yesterday, but it was amended to include the following language [1]:
13988.3 (b) (1) When a state entity creates a work that is otherwise subject to copyright protection, the work shall be released into the public domain unless the state entity reasonably determines any of the following:
(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.
(2) If a state entity reasonably determines that a work meets the criteria described in paragraph (1), the entity shall catalog those works and submit the information to the department for the purpose of tracking intellectual property generated by state employees or with state funding as provided in Section 13998.2.
…
(e) Nothing in this section requires a state entity to own, license, or formally register intellectual property that it creates or otherwise acquires.
(f) This section shall not apply to the use of expressive works created by nonstate employees or without state funding.
…
(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.
Are we happy with this? I suppose that letter I was writing may be moot now…
John
[1] https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201...
From: Publicpolicy [mailto:publicpolicy-bounces@lists.wikimedia.org] On Behalf Of Timothy Vollmer Sent: Thursday, May 19, 2016 1:05 PM To: Publicpolicy Group for Wikimedia Subject: Re: [Publicpolicy] US/California AB 2880 vs PD-California?
FYI--
CC wrote a post about it - https://blog.creativecommons.org/2016/05/19/california-bill/
Also, EFF has an action page up now where California residents can send a message to state reps.
https://action.eff.org/o/9042/p/dia/action/public/?action_KEY=10331
tvol
On Wed, May 18, 2016 at 1:26 AM, Mathias Schindler mathias.schindler@gmail.com wrote:
Hi,
I think it is worth repeating that fixing this issue can happen on a federal level via https://law.resource.org/pub/edicts.html. It should be within the scope of the mission of WMF and its affiliates to suggest and support such a legislative move.
Mathias
On Wed, May 18, 2016 at 5:32 AM, John Sadowski johnpsadowski@gmail.com wrote:
The situation is a bit odd. IANAL, but my understanding is that the California Public Records Act doesn't explicitly put state government works in the public domain, but there was a court case in 2009 that interpreted its language as omitting any provision that would allow the state to claim copyright [1]. The people on Commons find this sufficient to consider these works as public domain [2], but the state claims that the courts are misinterpreting the law. That's why they're calling this a "clarification", because they claim that the law never put anything in the public domain in the first place [3]. From the experience of another editor I've interacted with on Wikipedia, the state government is still requiring permissions to use state works even now [4]. Given this, there seems to be uncertainty about the older works would still be considered public domain, and thus whether we could continue to use them should this bill pass.
John P. Sadowski
[1] https://en.wikipedia.org/wiki/County_of_Santa_Clara_v._California_First_Amen... [2] https://commons.wikimedia.org/wiki/Template:PD-CAGov [3] http://leginfo.ca.gov/pub/15-16/bill/asm/ab_2851-2900/ab_2880_cfa_20160416_1... "Although it has always been the intent of the Legislature to ensure that California agencies can own, hold, and acquire intellectual property, this bill clarifies existing law by explicitly providing that a California public entity may own, license, and if deemed appropriate, register intellectual property." [4] Last paragraph of https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22 https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22&diff=710660699&oldid=709645905 &diff=710660699&oldid=709645905 and last paragraph of https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22 https://en.wikipedia.org/w/index.php?title=User_talk:Antony-22&diff=711100671&oldid=710966305 &diff=711100671&oldid=710966305 ...ignore the bit about the maps :-)
On Tue, May 17, 2016 at 2:37 PM, Ryan Kaldari rkaldari@wikimedia.org wrote:
If we can find out when this is coming up for a vote, it would be possible to use Geonotice (https://en.wikipedia.org/wiki/Wikipedia:Geonotice) to alert editors in California to call their legislators. It would be good to go ahead and start working on a Wiki page to direct interested people to.
On Tue, May 17, 2016 at 10:27 AM, Jacob Rogers jrogers@wikimedia.org wrote:
For what it's worth, typically laws are interpreted against being retroactive. What that means is that unless a law specifically says that it applies retroactively (and doing that can make a law run afoul of constitutional rules sometimes) it usually doesn't. So this is really worrisome, but mostly going forward rather than to existing documents.
Also, for the legislature, I'm not following them closely, but the California State Assembly Calendar has a deadline listed in June for them to vote on bill introduced in that house before the summer recess, then another deadline in August before the fall recess.
On Mon, May 16, 2016 at 9:41 PM, Mike Linksvayer ml@gondwanaland.com wrote:
On 05/15/2016 08:07 PM, John P. Sadowski wrote:
That is quite troubling, given that the committee approvals were near-unanimous. Is it possible that the bill could be interpreted to apply retroactively, meaning we'd have to remove those 1048 items?
I don't see anything retroactive in the text, but I also don't see anything that would strictly prohibit state agencies and local governments from treating previous publications as subject to copyright.
I see that User:Gazebo has posted at
https://commons.wikimedia.org/wiki/Commons:Village_pump/Copyright#Proposed_l... to no discussion yet.
Any idea when the bill comes up with a vote? Wikimedia DC could possibly draft and send a letter giving Wikimedia-specific examples, or we could work with the Foundation legal team to do so.
I don't know when it can be expected to come up for a vote. I should know more about California lawmaking than I do, which is almost nothing. I've copied wikimedia-sf; maybe some local California government maven lurks there and could say.
Mike
On May 15, 2016, at 9:47 PM, Mike Linksvayer ml@gondwanaland.com wrote:
https://www.eff.org/deeplinks/2016/04/ab-2880 "California's Legislature Wants to Copyright All Government Works"
More background at
https://www.techdirt.com/articles/20160417/09213934197/california-assembly-l...
According to http://copyright.lib.harvard.edu/states/ California is one of the three most "open" regarding government works. Presumably it won't be anymore if AB 2880 becomes law.
California is one of only two U.S. states with a category under
https://commons.wikimedia.org/wiki/Category:Public_domain_by_government -- https://commons.wikimedia.org/wiki/Category:PD_California (1048 items).
I haven't investigated whether and how many of those items would be subject to copyright had AB 2880 been California law at the times of their publication.
Skimming the bill's changes to present law at
https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201... it seems the one or two maybe dangerous additions are these:
> A public entity may own, license, and, if it deems it appropriate, > formally register intellectual property it creates or otherwise > acquires.
The assembly's analysis views this as a clarification, but it could open the door to widespread use (or copyright apologists would say, abuse) of copyright by local government, as the EFF says, "to chill speech, stifle open government, and harm the public domain."
> (A) A state agency shall not enter into a contract under this > article that waives the state’s intellectual property rights unless > the state agency, prior to execution of the contract, obtains the > consent of the department to the waiver. > > (B) An attempted waiver of the state’s intellectual property rights > by a state agency that violates subparagraph (A) shall be deemed > void as against public policy.
It is not clear to me whether this addition might serve as a barrier to agencies deciding to publish material under open licenses. In the meantime, I assume it will foster such barriers in practice.
https://twitter.com/mitchstoltz/status/731282363674562560 says "[EFF]'ll probably issue an action alert, but meantime, call your state assembly member's office & ask them to oppose."
If this is indeed a threat, I wonder if there's anything Wikimedians can do to oppose it, in addition to those of us in California calling our state assembly members?
Mike
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