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

Mon Nov 1 22:17:58 UTC 2010

While I totally agree with Tim's overall approach to the issue, I fail to
see how his remarks apply to the merits of this case, with a disclaimer that
like other's I am far from familiar with the details.

But, frankly, and here I might disagree with Toby too, I fail to see how
this material can be copyright to begin with. Is the documentation of an
open meeting "Intelectual Property" of the government? I can say for sure
that in our legal system such a claim would never hold. It is held by public
officials as no more than trustees, and any member of the public should be
able to obtain this information and reuse it as he or she sees fit,
regardless of the question whether they are representing the media, social
activities or elected officials.

Indeed if the information was tainted and misrepresented, that is an issue -
not one of copyright, but of false publication, and fairness in politics
(which opens a new debate whether that at all is a legal matter).

Best,

Roy

2010/11/1 Toby Mendel <toby at law-democracy.org>

> 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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