The use of public records and other government works could get a lot more restrictive in the state of California. Some elected officials in California are supporting a bill that could remove all state and local government records and works from the public domain by applying intellectual property rights to them.
A committee in the California State Assembly just passed state bill AB 2880. If this bill becomes law, it will give state and local governments in California the power to protect all government works with copyrights, trademarks, patents and trade secret rights. As a result, any use of these materials outside of official government use could come with huge legal restrictions and penalties.
California bill AB 2880 states that any eligible material that is created by state or local government agencies can be protected by intellectual property laws.
The proposed law would give government agencies the power to copyright their work, which would give state and local governments the ability to sue people for trademark or copyright infringement. Statutory damages for copyright infringement alone can range in the tens of thousands to hundreds of thousands of dollars per infringement.
Any citizen, business or organization that infringes on a government-owned copyright or trademark could face very high statutory damages, not to mention expensive legal bills defending themselves in civil court.
This bill would allow state and local governments in California to sue people or organizations for trademark or copyright infringement for using state works and materials without permission. Protected government works could include things like emblems, logos, names, reports, images, videos, maps and recorded public meetings. Even the use and republication of public records could be restricted by copyright laws.
The federal government is barred from copyrighting government works and materials by the Federal Copyright Act. However, state and local governments are not restricted by this federal law.
Except for a few specific cases, California has largely avoided using intellectual property rights to protect state and local government works. However, other states have granted themselves various levels of power to use intellectual property rights to protect their government materials.
California currently has the most open copyright policy of any state in the U.S. However, AB 2880 could make California’s intellectual property policy one of the most restrictive in the nation.
The Electronic Frontier Foundation warns that a state law like California’s AB 2880 will stifle free speech, limit the use of public records, and harm the public domain. The Electronic Frontier Foundation has been a vocal critic of AB 2880, warning the media and the public about the dangerous consequences if the bill is signed into law. The EFF believes that since government records, works and materials are funded by taxpayers, government works should be part of the public domain and free to use by the general public.
With intellectual property litigation easily costing each party over $100,000, it’s easy to see how a government entity could use the threat of a copyright or trademark infringement suit to stomp out public criticism and shut down a person’s right to free speech. Governments have time, money and lawyers to go after people in court; whereas the average citizen lacks the time and money to defend themselves on these issues.
In addition, due to the high statutory damages that can be awarded in copyright and trademark infringement cases, government agencies have a large financial incentive for filing these types of lawsuits against people and businesses.
Although there is a provision in AB 2880 that states that public record requests made under the California Public Records Act cannot be denied on the basis of protecting copyrights, the bill could severely restrict the use, publication and distribution of state and local public records by the public and the media.
As a result, copyright authority could be used by government departments to prohibit people and organizations from copying, distributing, publishing or displaying government records or materials.
While it is unknown what the ultimate intentions are behind California bill AB 2880, it appears that the proposed law could provide broad new powers to state and local governments to silence criticism, censor free speech and find a new government revenue stream through civil suits.