State Government Information and the Copyright Conundrum

Transcription

1 State Government Information and the Copyright Conundrum Wednesday, May 7, 2014 LRL and RACSS 2014 Dial for the webinar audio

2 5/7/ STATE GOVERNMENT INFORMATION AND THE COPYRIGHT CONUNDRUM Wednesday, May 7, 2014 National Conference of State Legislatures, LRL Webinar 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.

3 5/7/ 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:

4 5/7/ Agenda Webinar Outcomes Survey Responses Introduction and Definitions Perspectives Options and Solutions FSGI and Next Steps Q&A - Discussion

5 5/7/ Session Outcomes 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.

6 5/7/ Contrary to popular belief, state agencies do have the right* to copyright their publications. ~Margaret T. Lane, Selecting and Organizing State Government Publications 1987.

7 5/7/ Survey Results 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

8 5/7/ PUBLICATIONS not records! State Government Information = published and distributed print or online for the public s consumption includes, but not limited to:

9 5/7/ Federal 17 U.S. Code Ch 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 Government Printing Office.

10 5/7/ States

11 5/7/ Perspectives - Academia

12 5/7/ Example State Agency Reports (data to be unlocked)

13 5/7/ 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 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 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.

14 5/7/ Background

15 5/7/ U.S. Code 102(a) Subject Matter of Copyright 17 U.S. Code 105 Copyright and U.S. Government works Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression.. Copyright protection under this title is not available for any work of the United States Government

16 5/7/ When would government documents published today, be considered Public Domain? Public Domain (may be made available now): Federal Government Document: 2014 State Government Document: 2110

17 5/7/ Examples of State Government Documents Banking Reports & Statistical Reports

18 5/7/ Examples of State Government Documents Annotated Code

19 5/7/ Copyright and Annotated Codes 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

20 5/7/ North Carolina General Statute 132.1(b) (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.

21 5/7/ U.S. Code 105 Copyright and U.S. Government works Copyright protection under this title is not available for any work of the United States Government NY Bill S 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.

22 5/7/ 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

23 5/7/ Possible avenues forward Agreements with state agencies State government license Legislative Change Executive Authority

24 5/7/ Agreements with state agencies Permission form 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. permissions_agreement.pdf

25 5/7/ State Government License 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.

26 5/7/ Legislative Change Some ideas 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.

27 5/7/ 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

28 5/7/ 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

29 5/7/ 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...."

30 5/7/ Executive authority - Policy Policy primary state government websites Linking policy Terms of use Copyright notice, no statement/policy Copyright Michigan Judiciary Individual publications may carry copyright notice 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. 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)

31 5/7/ 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

32 5/7/ Get to know us and join us!

33 5/7/ THANK YOU! Q&A - Discussion

34 Questions?