[open-government] Jason Kitcat, copyright and closed government

[Tim McNamara]

On 2 November 2010 09:15, Steven Clift <clift at e-democracy.org> wrote:

> The use of copyright to limit the political expression of elected officials
> is censorship IMHO. Government use of copyright to constrain political
> activity may be within the law, but I don't think such a right has been
> exercised. This could be a huge test case. Ultimately, any constraint that
> limits reuse of government information and data for political purposes is an
> attack on open government.
>

Generally, I think that proponents of open PSI, from a rights-based
approach, should stay away from that phrases like "any constraint ... is an
attack" are for two reasons. One is substantive, the other is more
pragmatic.

Substantively, all rights are balanced. That is to say, all rules have
exceptions. Even rights that are extremely strong, like the right to life,
are balanced against other rights. For example, the right to self-defence
may override an individual's right to life in limited circumstances.

More pragmatically, very bold statements have a puritanical air to them. I
don't think that they're very persuasive. Nor do they establish a very solid
platform for political discussion - because positions are entrenched from
the outset.

To get to the real issue though, I continue to disagree that constraining
political activity is, in and of itself, illegitimate. Almost every
government in the world has limits on spending for political campaigns. The
general rationale for limits like that is constraining some political
activity of specific candidate generates a more balanced political
landscape, allowing every voice to be heard and thus producing stronger
democratic outcomes. In a sense, this can be seen as restricting the rights
of an individual to enhance the outcomes of the group.

Whether this is the case here, I don't know for sure. Here is the pattern of
my brief reflections. As I understand it, the content is publicly available
from the council's website. This format is likely to be neutral to all
councillors. Although, it might be used as political capital for the
incumbents. It sounds as if a single councillor has added political messages
to that content and then redistributed it.

Likewise, I don't know whether this is an attack on open government. It
looks to me that the government is being open. The politicians are being
constrained. The council appears to have decided that its proceedings will
not be used for "political purposes". I read this to mean that the
proceedings cannot be used for a highly biased manner. There are other
vehicles, such as the media, that are completely free to do whatever they
want with the material.

On 2 November 2010 09:24, Toby Mendel <toby at law-democracy.org> wrote:

>
> Under prevailing laws, that may indeed be theft, although I cannot see how
> they could argue that the material could not be used for political purposes
> but might for other purposes.
>
> Regardless, one might argue that the right to information as protected by
> international guarantees of freedom of expression gives a right to reuse
> information covered by public copyright. As a prima facie argument, this has
> merit, but international guarantees do allow for restrictions on freedom of
> expression and it is not yet clear how far these might go in relation to
> reuse. My view is that it is probably unrealistic to argue that freedom of
> expression protects any form of reuse of public copyrighted material, but
> that the government would need a good reason to assert such a restriction. I
> haven't had a chance to study the materials here carefully, but I am not
> sure what legitimate public interest might be harmed in this case.
>
> Toby
>

I'm not entirely convinced of my argument above: that party political usage
of the material, outside of an election campaign, is unjustifiable use. If
it were to hold, then there would need to be some fairly difficult
distinctions being drawn between a neutral user and biased users.

Still, the discussion is worthwhile. I welcome comment.

Tim.
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