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

Mon Nov 1 23:33:22 UTC 2010

On Mon, Nov 1, 2010 at 11:32 PM, Chris Taggart <countculture at gmail.com>wrote:

> Sorry. re-reading that wasn't terribly clear. LA's do hold copyright but it
> belongs to them as individual bodies, not to the 'Crown'.
>
>
> Chris
> --
> -------------------------------------------------------
> OpenlyLocal :: Making Local Government More Transparent
> http://openlylocal.com
> Blog: http://countculture.wordpress.com
> Twitter: http://twitter.com/CountCulture
>
> On Mon, Nov 1, 2010 at 11:24 PM, Toby Mendel <toby at law-democracy.org>wrote:
>
>> Interesting. Not so in Canada or the US (where it is almost the reverse of
>> the UK, and the federal government does not hold copyright but State and
>> municipal bodies do).
>>
>> Toby
>>
>> On 1 Nov 2010, at 19:53, Chris Taggart wrote:
>>
>> Crown copyright only applies to central not local govt in the UK. That's
>> one of the reason the Open Government Licence was created, as the orginal
>> data.gov.uk licence assumed Crown Copyright (and so wasn't really
>> suitable for local authorities).
>> Chris
>>
>> --
>> -------------------------------------------------------
>> OpenlyLocal :: Making Local Government More Transparent
>> http://openlylocal.com
>> Blog: http://countculture.wordpress.com
>> Twitter: http://twitter.com/CountCulture
>>
>> 2010/11/1 Toby Mendel <toby at law-democracy.org>
>>
>>> 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
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> open-government mailing list
>>>> open-government at lists.okfn.org
>>>> http://lists.okfn.org/mailman/listinfo/open-government
>>>>
>>>>
>>>
>>>     ___________________________________
>>> *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
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> open-government mailing list
>>> open-government at lists.okfn.org
>>> http://lists.okfn.org/mailman/listinfo/open-government
>>>
>>>
>>
>>
>>
>>     ___________________________________
>> *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
>>
>>
>>
>>
>>
>
>
>
>

-- 
-------------------------------------------------------
OpenlyLocal :: Making Local Government More Transparent
http://openlylocal.com
Blog: http://countculture.wordpress.com
Twitter: http://twitter.com/CountCulture
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