Wait, wait. The bill has changed significantly in the last few days. The new language
states that any potentially copyrightable work “shall be released into the public domain”
with certain exceptions, and even under the exceptions they “shall issue the requesting
party a license to use the record,” though it may be a non-commercial license. Are these
exceptions fine or are they too broad? If they are reasonable, the bill would actually
affirmatively put government works in the public domain, instead of having to rely on a
court decision, which would actually be something we should support.
FWIW I actually did write a draft for a letter for Wikimedia District of Columbia to
approve and send out (attached), but the changes to the bill may make it unnecessary, or
would require some rewriting if we think the exceptions should be tightened.
Thanks.
John
From: Publicpolicy [mailto:publicpolicy-bounces@lists.wikimedia.org] On Behalf Of Stephen
LaPorte
Sent: Saturday, June 04, 2016 12:51 PM
To: Publicpolicy Group for Wikimedia
Subject: Re: [Publicpolicy] US/California AB 2880 vs PD-California?
Thanks, Tim! I'll reach out to Ernesto about the letter.
On Sat, Jun 4, 2016 at 9:45 AM, Timothy Vollmer <tvol(a)creativecommons.org> wrote:
EFF's organizing a letter to the California Senate in opposition to this. I'm not
sure what the mechanism is for WMF to act on this, but if it is interested in reading
it/signing, it should send a note to Ernesto Falcon at EFF (ernesto(a)eff.org). Several orgs
are signing on, including:
Association of Research Libraries
Creative Commons
Association of College and Research Libraries
Sunlight Foundation
American Library Association
Niskanen Center
Californians Aware
Creative Commons USA
Northern California Association of Law Libraries
Data Coalition
Open Media and Information Companies Initiative
Student Press Law Center
Public Knowledge
Fight for the Future
timothy
On Fri, Jun 3, 2016 at 11:03 PM, John P. Sadowski <johnpsadowski(a)gmail.com> wrote:
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=20…
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(a)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(a)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_Ame…
[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_…
"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(a)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(a)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(a)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_…
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(a)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-…
>>
>> 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=20…
>> 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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