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

Mon Nov 1 22:42:51 UTC 2010

My last comment on this thread, I promise :)

Copyright rules in common law countries are, for better or worse  
(mostly worse), extremely broad. I confess I am not an expert on the  
more arcane aspects of copyright, but if a public authority produced  
the documents (even in the form of a video of a meeting of that public  
authority), then I  believe that under UK law they are subject to  
public (crown) copyright.

There is a large difference between rules prohibiting false  
publication, which I have often argued are offensive to free speech,  
and a rule that protects the integrity of others' work. CC licences  
struggle to marry this with further creative input to documents,  
providing:

"If You create a Collective Work, upon notice from any Licensor You  
must, to the extent practicable, remove from the Collective Work any  
credit as required by clause 4(b), as requested. If You create a  
Derivative Work, upon notice from any Licensor You must, to the extent  
practicable, remove from the Derivative Work any credit as required by  
clause 4(b), as requested."

So, under this rule, you cannot present something as being by an  
author if you have distorted it and the author no longer wishes to be  
associated with it.

Toby

On 1 Nov 2010, at 19:17, Roy Peled wrote:

> 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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___________________________________
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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