2014

State Government Information and the Copyright

Conundrum

Wednesday, May 7, 2014

LRL and RACSS

Dial 888-437-3195 for the webinar audio

STATE GOVERNMENT

INFORMATION

AND THE COPYRIGHT

CONUNDRUM Wednesday, May 7, 2014

National Conference of State Legislatures,

LRL Webinar

5/7/2014 2

State Government Information and the Copyright Conundrum

by Bartlett, Bernadette;Bonfiglio, Justin; Kasianovitz, Kris is licensed under a

Creative Commons Attribution-NonCommercial 4.0 International License.

Speakers

• Bernadette Bartlett, Library of Michigan, Michigan

Documents Librarian

• Justin Bonfiglio, University of Michigan, Attorney and

Copyright Specialist

• Kris Kasianovitz, Stanford University Library, Government

Information Librarian

CONTACT US: http://stategov.freegovinfo.info/

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Agenda

• Webinar Outcomes

• Survey Responses

• Introduction and Definitions

• Perspectives

• Options and Solutions

• FSGI and Next Steps

• Q&A - Discussion

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Session Outcomes

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• Understand what libraries face when making state government information “accessible to all”.

• Understand state agencies perspectives on copyright.

• Engage in discussion to generate ideas, raise issues, find solutions.

• Generate support and connections to work towards policy change.

• Get to know FSGI: Free State Government Information.

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“Contrary to popular belief, state

agencies do have the right* to

copyright their publications.”

~Margaret T. Lane, “Selecting and

Organizing State Government

Publications” 1987.

Survey Results

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Existence of Copyright Policy (n=26)

No = 9 Yes = 2 Don’t Know =16

Importance of Copyright (n=27) Moderately Important/Important = 10

Unimportant/Little Importance = 6

Don’t Know = 7

Top Publications to Copyright (n=25) Never Copyrighted= 10 Photos = 4 Leg Pubs =3

Top concerns of Public Domain (n=24) Authenticity = 10 Control= 9 No concern =9

PUBLICATIONS not records!

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State Government Information = published and distributed

print or online

for the public’s consumption

includes, but not limited to:

Federal

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17 U.S. Code Ch. 1 § 105 - Subject

matter of copyright: United States

Government works

Copyright protection under

this title is not available for

any work of the United States

Government,

but the United States

Government is not precluded

from receiving and holding

copyrights transferred to it by

assignment, bequest, or

otherwise.

Source: US Code. 2012. Government Printing Office.

http://www.gpo.gov/fdsys/browse/collectionUScode.action?collectionCode=USCODE

50 States

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Perspectives - Academia

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Example – State Agency Reports (data to be unlocked)

Example - Permissions

My colleagues and I are working on a research project on “Banking during the Great Depression” that uses data from your

agency’s Annual Reports from the years 1920 to 1940.

To aid in that research, we request your permission to digitize possibly copyrighted editions of those works, to archive the digital version of the works, and to make the

digital works publicly accessible.

If you agree, please indicate your permission by responding to our email and including the information below:

The [insert state name] Bank Department hereby authorizes the Stanford University Library to digitize the [insert state] state publications listed below (“the Works”); to archive and preserve the Works in a digital archive, such as the Stanford Digital Repository; and to make the Works accessible to the public through its catalog, its website, or other publicly accessible tools, without restriction.

We further authorize Stanford University Library to share the digital versions of the Works with other digital archives or institutional repositories, including, but not limited to, HathiTrust.

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Background

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17 U.S. Code §105 –

Copyright and U.S.

Government works

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Copyright protection under

this title is not available for

any work of the United

States Government…

17 U.S. Code § 102(a) –

Subject Matter of

Copyright

Copyright protection subsists,

in accordance with this title, in

original works of authorship

fixed in any tangible medium

of expression..

When would government documents

published today, be considered “Public

Domain”?

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Public Domain

(may be made available now):

Federal Government Document: 2014

State Government Document: 2110

Examples of State Government

Documents – Banking Reports &

Statistical Reports

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Examples of State Government

Documents – Annotated Code

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Copyright and Annotated Codes

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The Committee’s position is that the annotated

Code that you have copied and published is

comprised of copyright-protected material. The

Committee therefore requests that you

immediately remove the annotated version of the

Mississippi Code of 1972 Annotated from any and

all of your website(s)…

Letter from Mississippi Attorney

General’s Office to public.resource.org

North Carolina General Statute § 132.1(b)

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(b) The public records and public information

compiled by the agencies of North Carolina

government or its subdivisions are the property of the

people. Therefore, it is the policy of this State that the

people may obtain copies of their public records

and public information free or at minimal cost

unless otherwise specifically provided by law. As used

herein, "minimal cost" shall mean the actual cost of

reproducing the public record or public information.

17 U.S. Code §105 –

Copyright and U.S.

Government works

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Copyright protection

under this title is not

available for any work

of the United States

Government…

NY Bill S1837-2011 – proposed

but not enacted into law.

“Any copyright in a record

prepared by an agency that is

disclosed pursuant to the

provisions of this article is waived,

except if such record reflects

artistic creation, scientific or

academic research, or if the

agency intends to distribute the

record or a derivative work

based on it to the public by sale

or other transfer of ownership,

or by rental lease, or license. If

any of the foregoing exceptions

apply, the agency may in its

discretion waive any such

copyright.

Perspectives - State Government

• Challenges

• No comprehensive awareness or understanding of copyright in

state government

• State government publications are not in the public domain

• Users do need to seek permission from creator (agency) to reuse state

government information

• Lack of awareness/knowledge makes it a low priority for

government agencies

• Difficult (sometimes impossible) to locate agency policy- or

decision-maker who can or will make a decision regarding rights

and access

• State Libraries – walking a fine line to comply with state copyright

policies, but still uphold library interests and responsibilities

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Possible avenues forward

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• Agreements with state agencies

• State government license

• Legislative Change

• Executive Authority

Agreements with state agencies –

Permission form

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I, __________________________________, hereby

authorize the University of Michigan to produce digital

copies of the above named publication (“the Work”) for its

library collection and for the HathiTrust repository. In

addition, I authorize the University of Michigan to make the

full text of this publication available to the public in digital

form via the HathiTrust repository without restrictions.

http://www.hathitrust.org/documents/

permissions_agreement.pdf

State Government License

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• Could be modeled on or exploit an already existing

Creative Commons license.

• Could allow states to define the types of access they

support, while allowing states to retain other rights.

• Presents an alternative to the “either/or” of copyright

– allows for greater flexibility.

Legislative Change – Some ideas

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• Explicitly refer to copyright in works created by state

government agencies (rather than “Public information”).

• Simple language is best - 17 U.S. Code §105 is effective,

simple language.

• State legislature could consider imposing a notice formality

on state agencies – in order to claim copyright, state

government document would bear a notice explicitly stating:

“Copyright is claimed in this state government document,”

otherwise state/state agency “shall not bring a claim for

copyright infringement.” This would provide clarity to users.

Executive Authority – the EO

Executive order (EO)

• The Michigan Constitution of 1963 vests the executive power of

the state in the Governor. That power is exercised formally by

executive order. Executive orders may reorganize agencies

within the executive branch of state government, reassign

functions among executive branch agencies, establish an

advisory body, commission, or task force, regulate conduct

within the executive branch of state government, or proclaim or

end an emergency.

• Challenges

• Attains force of law unless overturned by Legislature

• Limited scope of authority

• Less legal stability

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Executive Authority – the ED

Executive directive (ED)

• “Generally speaking, the agencies identified in an executive

directive can be expected to carry out the policies of the

administration as communicated in the directive to the extent

its directions are consistent with applicable law. To the extent

any confusion or questions may arise as to the meaning of

any of the directive's terms or provisions, such questions are

best resolved by seeking the guidance of the Governor.”

A.G. opinion #7157

• Challenges

• EDs do not have the force of law

• Less long-term stability as a policy instrument

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Executive Authority – Administrative Law

Administrative Law

• Michigan Administrative Code (Rules and Regulations)

• "Rule" means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency.

• Challenges

• Agency must have authority to promulgate rules

• Requires Legislative approval

• Attorney General Opinion

• “…shall be the duty of the attorney general, when required, to give his opinion upon all questions of law submitted to him by the legislature, or by either branch thereof, or by the governor, auditor general, treasurer or any other state officer . . . ."

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Executive authority - Policy

Policy – primary state government websites

• www.michigan.gov • Linking policy – Terms of use

• www.courts.mi.gov • Copyright notice, no statement/policy

• Copyright ©Michigan Judiciary

• Individual publications may carry copyright notice

• www.council.legislature.mi.gov • Copyright infringement policy

• States an expectation of compliance with copyright laws, but addresses a complaint procedure for people that feel their content is being infringed by inclusion on the website.

• www.michiganlegislature.org • Acceptable use policy

• Users must respect the legal protection provided by copyright and license to programs and data made available by The Services.

• Copyright infringement policy (repeat of text above)

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Executive authority – policy, cont’d

Policy – policy and procedure manuals

• Administrative Guide to State Government

• The Ad Guide is a set of policies and procedures used by State

employees in the course of conducting business.

• Policies/procedures appear/disappear over time

• 2006 copyright policy no longer included

• State agency policy and procedure manuals

• Current DEQ policy manual implies their publications and web

content is in the Public Domain – contradicting SOM policy?

• Challenges

• Ambiguity

• No clear, centralized policy/guidance or perspective

• Fluidity – policies appear, disappear, change often

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Get to know us…

http://stategov.freegovinfo.info

…and join us!

THANK YOU! Q&A - Discussion

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2014

http://stategov.freegovinfo.info/

Questions?