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

Mon Nov 1 21:29:31 UTC 2010

I agree that we need to be careful of categorical statements when  
dealing at least with some rights (although I think it is misleading  
to argue that the right to life has exceptions in the form of the  
right to self-defence eg because human rights are held against States,  
not private individuals and States' right to self-defence arguably  
exists at least in part to defend the right to life, of their own  
citizens).

It is clearly the case that many States have imposed spending limits  
on political activities and these have been upheld by senior courts  
and international courts. But I don't really see what this issue has  
to do with spending limits and I have very rarely seen a restriction  
on freedom of expression outside of spending limits be upheld on the  
basis that the speech was for political purposes. Given the highly  
protected nature of political speech, you would need a political trump  
for such a restriction (which is precisely the justification for  
spending limits). The other example I can think of is requirements of  
balance and impartiality in broadcasting (what used to be known as the  
fairness doctrine in the US before Regan did away with it). Once  
again, you have overriding considerations of power and money to  
balance against a level playing field in politics. But it is hard to  
see how this sort of argument could be used against an individual  
creatively using vehicles that are available to everyone, for free, to  
promote a political objective. This, surely, is what democracy is all  
about!

If he completely distorted the meaning of the 'documents' that might  
be another matter, and this could perhaps be an arguable case for  
imposing copyright but on the grounds of preserving the original work,  
not theft or a prohibition or limitation on reuse as such (and  
certainly not political use).

Toby

On 1 Nov 2010, at 18:00, Tim McNamara wrote:

> 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.

___________________________________
Toby Mendel
Executive Director

Centre for Law and Democracy
toby at law-democracy.org
Tel:  +1 902 431-3688
Fax: +1 902 431-3689
www.law-democracy.org

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