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- 1. STATE GOVERNMENT INFORMATION AND THE COPYRIGHT CONUNDRUM June 15, 2016 Indiana Networking for Documents and Information of Government Organizations (INDIGO) Spring Meeting 7/5/2016 1 State Government Information and the Copyright Conundrum by Bartlett, Bernadette ;Courney, Kyle K.;Eden, Kristina Kasianovitz, Kris is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
- 2. Agenda • Who we are • What is the issue • Why are we tackling this issue • How: • Perspectives and projects Academic Library, State Library, Digital Library • Harvard State Copyright Resource Center • Wrap up • Questions, Discussion 7/5/2016 2
- 3. Who • Bernadette Bartlett, Library of Michigan, Michigan Documents Librarian • Kyle K. Courtney, Harvard University, Copyright Advisor • Kristina Eden, Copyright Review Program Manager, HathiTrust • Kris Kasianovitz, Stanford University Library, Government Information Librarian 7/5/2016 3 CONTACT US: http://stategov.freegovinfo.info Free State Government Information
- 4. What, Why 7/5/2016 4 Federal: Public Domain Now, 17 US Code, Ch. 1 § 105 50 States: Public Domain in 2112 Publicly Available v. Public Domain Publications not Records…
- 5. HOW: Approaches and solutions •Seek Permission •Take down notices •Copyright Review 7/5/2016 5 Immediate Long Term •Legislative Change •Executive Authority •Creative Commons
- 6. HOW: Perspectives and Projects 7/5/2016 6 Projects and Challenges Academic Institutions Digital Libraries State Libraries Image Credit: Dvotygirl. 23 February 2008. A book scanner at the Internet Archive, San Francisco, CA. https://en.wikipedia.org/wiki/Digitizing#/media/File:Internet_Archive_book_scanner_1.jpg
- 7. 7/5/2016 7 Digitization Projects and Web Archiving – An Academic Library Perspective My colleagues and I are working on a research project on “Banking during the Great Depression” that uses data from your agency’s Annual Reports from the years 1920 to 1940. To aid in that research, we request your permission to digitize possibly copyrighted editions of those works, to archive the digital version of the works, and to make the digital works publicly accessible. Image Source: https://library.stanford.edu/sites/default/files/styles/large/public/widget/image/robot.jpg?itok=HFt-5UY4
- 8. HathiTrust Digital Library - approaches 7/5/2016 8 www.hathitrust.org • Archiving for preservation • State legislative language • Seeking permission from state agents • Publicly available vs public domain • Copyright review pilot project
- 9. 7/5/2016 9
- 10. IMLS funded copyright review 7/5/2016 10 • US state documents published 1923-1977 • Published with copyright notice formality • 13,000 state documents since May 2014 • About 73% public domain www.hathitrust.org 0% 73% 27% In copyright Public domain Undetermined
- 11. Interesting results 7/5/2016 11 • Copyrighted works • state annotated code • records of courts of appeal • Reports published in cooperation with federal departments but not §105 eligible • Non-US joint authorship, such as Canadian/Michigan Great Lakes research www.hathitrust.org
- 12. State Government and Copyright Michigan • Status of copyright • Policy Ambiguities • What’s missing? • Administrative rule, policy, procedure Copyright is not on state government’s radar… …or is it? • Stronger statement on Michigan.gov • State equipment use policy with restrictive language regarding copyrighted materials 7/5/2016 12 copyright
- 13. State Libraries and Copyright Role of state library State documents depository • All materials after 1923 in copyright • No mention of copyright included in depository statute Source of POV or information (not advice!) on copyright and state government information Provider of born-digital and digitized state government content • Generally confident that state government is not going to get in our way, but… 7/5/2016 13
- 14. State Copyright Resource Center: Beginnings • Issues with Graduate School of Design’s project: digitize a rare collection of urban planning reports • Dive into the research problems • Call Ashely Messenger, author of “Can States Use Copyright to Restrict the Use of Public Records?” 29 Comm. Lawyer 4 (February 2013) • Summer 2014 hire Harvard Copyright Fellow, Katie Zimmerman (MLIS, JD expected 2016) • Begin “scorch the earth research” • Record data, write up, score, analysis, and the potential solutions (model legislation) • Build website 7/5/2016 14
- 15. Interesting unique works of state government 7/5/2016 15
- 16. Factors in addressing the scoring • State Attorney General Opinions • Implications of Copyright in State Code and Cases • Policy Statements • Records Access Restrictions • Ownership Statements • Statements of the State Archives 7/5/2016 16 • State Constitution • Historicity within State • Purpose Statement of Public Records Law • Relevance of Subsequent Use • Relevance of Commercial Use • Statement of an Official Advisory Body • Grants of Copyright in the State Code
- 17. State Copyright Resource Center http://copyright.lib.harvard.edu/states 7/5/2016 17
- 18. 7/5/2016 18
- 19. Openness Score • The Openness Score is a quantification of all of the indicators we've identified that a state will or will not assert a copyright interest in their public records. • We've calculated the score by quantifying the arguments and factors related to the copyright status of government documents in that state – the same arguments and factors we describe in the text. • These factors are based on the factors that courts have considered when deciding the copyright status of government documents in the states that have done so (take a look at New York, Florida, California, and South Carolina to see how it turned out). • The openness score is the z-score of that quantification – it measures the number of standard deviations a state is above or below the average across all states. 7/5/2016 19
- 20. State Copyright Resource Center 7/5/2016 20 • Interactive Guide to each State’s policies • Uniformity in presentation • Accessible and Mobile • Links to openly available laws, cases, regulations, and other links • Cross referencing • Bibliography for each state plus overall topic bibliography • Updateable
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- 25. Sample Results from Survey and Analysis State Constitutional Provision Value % with Value Universal right of access included +1 13% Universal right of access included by interpretation +0.5 4% No constitutional provision 0 73 % Right of access included for specific records only -0.5 10% 7/5/2016 25 Purpose Statement Value % with Value Statement includes concept of public ownership of documents +1 8% Statement describes public access to records as a value, but focuses on transparency rather than property +0.5 58% Plain statement of policy or duty, no statement of intent or motivation 0 31% Statement focuses on efficiency of governance rather than access as a right -0.5 2% Statement specifically excludes intellectual property of the state -1 2%
- 26. Sample Results from Survey and Analysis State Constitutional Provision Value % with Value Universal right of access included +1 13% Universal right of access included by interpretation +0.5 4% No constitutional provision 0 73 % Right of access included for specific records only -0.5 10% 7/5/2016 26 Purpose Statement Value % with Value Statement includes concept of public ownership of documents +1 8% Statement describes public access to records as a value, but focuses on transparency rather than property +0.5 58% Plain statement of policy or duty, no statement of intent or motivation 0 31% Statement focuses on efficiency of governance rather than access as a right -0.5 2% Statement specifically excludes intellectual property of the state -1 2% Archives or Library Policy Statement Value % with Value Clear public domain statement +1 12% Limited public domain statement +0.5 6% No policy statement found 0 52% Limited proprietary statement -0.5 12% Clear proprietary statement -1 19%
- 27. We Need You! A Call to Arms! • The State Copyright Resource Center will not be complete without help from our fellow librarians, archivists, researchers, and others. • Our first partner: FSGI • State specific experts needed and necessary to develop, update, and improve the State Copyright Resource Center 7/5/2016 27
- 28. Other issues/projects that impact this area 7/5/2016 28 • Carl Malamud, public.resource.org • Uniform Law Commission, Electronic Legal Material Act (UELMA) • Sarah Glassmeyer, State Legal Information Census Report and Blog • Free Law Project, free.law (RECAP, CourtListener) • Maine State Library, CC0 license • Ohio, possible legislative solution using CC • California, 2015-16 AB 2880 http://stategov.freegovinfo.info/archives/288
- 29. Get Involved! • Free State Government Information http://stategov.freegovinfo.info/ • State Copyright Resource Center http://dash.harvard.edu/copyright/ 7/5/2016 29
- 30. Thank You! Questions and Discussion 7/5/2016 30 Contact Us: http://stategov.freegovinfo.info Free State Government Information
Editor's Notes
- Who we are and what are we doing here – each What’s the issue – rationale for what we are doing Perspectives/projects Copyright and State Government Information from State Library, Digital Repository, Academic Library DEBUT of the State Copyright Resource Center Wrap up – other projects Questions, Discussion
- To recap what FSGI is all about – we want to bring clarity to the copyright policy landscape across the 50 states with regards to state government information. Federal State and federal government documents are not alike when it comes to copyright law. At the foundation of this are two provisions of the U.S. copyright statute. Under current US copyright law in Title 17 of the US Code Section 102(a) which covers the subject matter of copyright, copyright protection subsists in original works of authorship from the instant it is fixed in any tangible medium of expression. Government documents meet these requirements for copyright protection. So, just like any other work of creative expression they are protected by copyright from the moment of creation. However, as you see in Section 105, on the right, federal government documents are excluded from copyright protection which is not available for any work of the United States Government. Federal §105 We have a very simple and direct assurance in Section 105 that works of the United States Government are not subject to copyright in the United States. And this is what we all commonly know. However, Section 105 doesn’t say a word about state government documents. And state government documents are not works of the United States Government, so by default §102(a) remains in operation. Full copyright protection attaches from the moment of creation unless there is state legislation to the contrary. 50 states Beyond the default set in the Copyright Act, states can and do exert copyright over their publications and may have their own laws, rules or policies that address intellectual property rights of state government information. Publication v Record FSGI project is talking primarily about PUBLICATIONS, often referred to as “state government information” or “state government publications” or “state documents” and sometimes even called records! Kyle’s project looks at records and publications Typically We are not talking true PUBLIC RECORDS – so not emails, not memoranda or correspondence or any materials that one would have to make a public records request for; These are agency publications, once distributed in paper to libraries, now often only available on agency websites or sent as pdfs via email to libraries, or on CD-ROM, DVD. Most if not all of your states have a Library Distribution Act (that’s what California’s is called) or some State Publication Depository Law, which will typically define a publication. Key characteristics of the material we are talking about -published and distributed -print or online (or any other format) -for the public’s consumption When would it be public domain? Public domain is a term applied to creative works for which the copyright has expired, the copyright owner has failed to follow copyright renewal rules or deliberately placed (dedicated) it in the public domain, or a type of work copyright law does not protect. Current federal documents fall into this category, but a state government document published today will receive 95 years of copyright protection by default and will not enter the public domain until 2111. State legislation could change the US Copyright Law default, but so far our inquiries into state legislation haven’t produced any clear language that HathiTrust could libraries and users can confidently rely upon. Publicly available vs public domain There is a misperception that a statute or policy granting public access is equivalent to public domain. Without passing the tests identifying a work as public domain, ‘publicly available‘ or ‘accessible’ does not negate the exclusive rights of the copyright holder.
- Immediate As we’ve noted, the permission seeking route is used frequently as it is targeted; most expediitous for an immediate research need. Other libraries have employed a take down notice approach Long Term Legislative Change - suggestions Simple language is best - 17 U.S. Code §105 is effective, simple language. Explicit language is best - use ‘copyright’ and ‘publication’ rather than more ambiguous terms Impose a notice of formality on state agencies government publications free of copyright unless otherwise noted Executive Authority – opportunity with limitations Executive orders and rules and regulations attain the force of law Executive directives, AG Opinions, policy and procedure are strongly persuasive Authority limited only to Executive Branch Creative Commons - flexibility Adopt existing CC licenses or draft and impose government publication specific license
- Issues faced by information providers and users – this includes Academic institutions, Digital Libraries, State libraries Projects: We all have digitization and web archiving projects that involve state government information. In Academic institutions and digital libraries esp, we are currently tied to following Copyright Law (Academic Institution, Dig Libs esp) A common perception is that states declare that the documents should be publicly available therefore they are public domain. Challenges Academic Institutions (and Digital Libraries) We have really great collections of 50 states materials; our researchers want these materials in digital formats to conduct research, text mining, or to extract rich data from the publications. Anything post 1923 – we either have to seek permission. This adds considerable time to projects; resulting some. Even though our researchers and even Digital Libraries For HathiTrust digital library, this means that they can confidently make public domain federal government documents available but we don’t have that same ability with state government documents because by default state government documents receive copyright protection. Our approach is based on the US formality that publication 1923-1977 must contain a copyright notice. This approach only works for “published” documents 1923-1977, but for that those eligible for review we’ve found it very effective. ..about a 69% public domain identification rate. A state government document published today will receive 95 years of copyright protection by default and will not enter the public domain until 2111. State legislation could change the US Copyright Law default, but so far their inquiries into state legislation haven’t produced any clear language that HathiTrust could confidently rely upon. Specific issues; Similarly we see complexities when there is joint authorship or contract work with states and outside agencies. Annotated Codes: some states have taken a position that their annotated codes are copyrighted; That the addition of annotation adds a layer of copyrightable content they intend to enforce. Copyright review is manual, a document by document approach; so very labor intensive but still more manageable that trying to see permission from each agency. Hathi does have a permission form that agencies can agree. A permission seeking project at large scale, although it may seem attractive, is difficult to implement. It often requires a lot of legwork to find an appropriate authorizer and convince them of the need and importance. They view the permission agreement as a potential catalyst for librarians in raising awareness with state administrators. State Libraries – walking a fine line to comply with state copyright policies, but still uphold user interests and library responsibilities Legal obligation to collect/distribute/provide access to state publications By necessity, priority is on electronic state publications and digitization projects No exemption or privilege re: copyright Perceived as authority on copyright – right or wrong! Within state libraries Lack of knowledge, comprehension or education of copyright at state government level Typically an unknown or unassigned responsibility with low priority Permissions practice and procedure not direct or clear Image Credits https://en.wikipedia.org/wiki/Digitizing#/media/File:Internet_Archive_book_scanner_1.jpg
- Researchers want digital access to materials in print 1. Online versions are found, usually through Hathi Trust, sometimes via Google Books; researchers download Full View; then ask to get full view of those marked limited view. Seeing the scanned versions or a portion of them – gives the impression that the entire run can be gotten. Most researchers figure that state government publications are like federal and in the public domain. So when they see a limited view in Hathi, they think it’s a technological or workload issue not one of copyright. The reality is Hathi can’t open up the scans unless the agency gives them permission to do so. Justin will cover this in his section in more detail. 2. Often entire runs of a publication are not in Hathi, so researchers turn to the library catalogs to locate the print issues to complete the run. These usually are scattered across various libraries (Stanford’s, a library in the state, or some other library). So we assemble as complete a run as possible with scanned and print versions. 3. The next request from our researchers is to scan print the material. Precisely because of the copyright nature, our general counsel requires us to seek permission from each state agency. Once we scan the publications, we then add links to the pdfs in our catalog; which is why we have to get permission. Use and Reproduction Statement: These works have been digitized and made accessible with the permission of the State. States may limit further reuse. Please contact govinfolib@stanford.edu with questions about reuse or access. Take Down Notice The Library has digitized its collection of California State government reports and other documents as distributed by the State Librarian. All documents are believed to be in the public domain. Anyone wishing to assert copyright of a document should contact the Administrator at (contact email).
- Michigan Speaking of Michigan specifically, but similarities in other states are likely In Michigan, statute and caselaw supports the state’s right to copyright its works, which from my perspective is not ideal but until or unless that changes, state government could improve their delivery of copyright information and services. Copyright is generally asserted through policy, but ambiguities abound No uniform language or POV re: copyright between or across branches Of the three branches, the executive branch Terms of use policy contains the clearest language regarding how MI government information can and cannot be used, and lays the responsibility for providing permission on the individual agencies. However, it provides no associated procedure or contact information for resolving copyright requests. Legislative branch copyright policy and procedure is more of a takedown policy – it addresses concerns that they might infringe on someone else’s copyright. Judicial Branch statement is REALLY obscure – I don’t think most people would know it was about copyright. I won’t say that each branch has a different perspective on copyright, but their inconsistencies and lack of uniformity prevents clarity. In addition to this, there is no training or education component for state employees to inform how copyright impacts their work, their agency’s information sharing practices and how to address user requests related to copyright. I think administrative law such as rules, policy and procedure would be useful educational tools to establish standardized practice and provide an informed and consistent response to requests for copyright clearance. Up until a few months ago, I would have said that copyright is not on state government’s radar… and I still think that is true the majority of the time as it is not often addressed at the state agency level in policy or procedure. That said, I’m beginning to wonder if perhaps copyright is on at least one agency’s radar. The department that sets policy on Michigan.gov and administratively for all executive branch agencies has recently used the most specific language I have seen since I’ve been following this issue – expanding on a general statement about complying with IP laws to specifying types of use NOT allowed without permission. All content on Michigan.gov is the property of the State or its content suppliers and is protected by intellectual property laws. Michigan.gov is for personal and non-commercial use only. You may not modify, copy, distribute, display, reproduce, publish, license, create derivative works from, sell, or transfer information, products, or services obtained from Michigan.gov unless the law otherwise provides or the State gives you prior written permission. And the same agency also recently released a SOM IT equipment use policy with restrictive language that could adversely affect all MI state government libraries, including LM. Buried among the warnings about viewing inappropriate websites and online shopping is a statement that prohibits downloading, duplicating, or distributing copyrighted materials without specific written permission of the copyright owner.
- Role of state library By statute we serve as the state documents repository, with obligations to capture, preserve and provide access to state government publications All materials published after 1923 are in copyright – rare to find statement or notification that implies otherwise The statute does not include any exemption or mention of copyright with regards to these obligations, so technically we operate under the same copyright limitations as any other creator or user of state government information. Source of POV/information We are also a common point of contact for state government and the public for questions re: copyright and state government information. We are careful not to cross the line into ‘advice’. Provider of born-digital/digitized state gov info Since 2006 designated format for a mdoc in the depository program has been electronic and we preserve and provide access to ‘archived’ born-digital and digitized state government content on a site called Governing Michigan. On Governing Michigan we offer a typical warning that the info available there may be protected by copyright, as well as a takedown notice, and a redaction procedure. If we are digitizing a large volume of content or an item with a copyright notice, we always contact the agency and open a dialogue to acquire permission. If an agency is reluctant or specifically requests it, we also use built in DRM system features or limited IP access to restrict access to items in line with a fair use standard. For state docs that are already freely available online or were freely distributed in print, we don’t worry about copyright over much, relying on the protections afforded libraries under copyright law and assuming one state government agency is not going to sue another. However, we need to find out more about the recent policy changes I mentioned in the last slide. It will be interesting to see what kind of response we get from the policy-making agency - hopefully we can start a conversation that advances a more reasonable approach to copyright and state government publications in Michigan.
- One interesting example within the Library and Archives factor comes from South Carolina. South Carolina is the most recent state with a judicial decision on the copyright status of their government documents, with the 2008 decision of Seago v. Horry County. In Seago the South Carolina supreme court explicitly followed in the footsteps of NY’s County of Suffolk to hold that state entities are not prohibited from obtaining copyrights by the state public records law. The South Carolina State Library (SCSL), however, has one of the clearest library policy statements in the country on their website, stating that “the South Carolina State Library considers [Records, documents and information made available by the agencies of South Carolina state government or its subdivisions] to be in the public domain according to US copyright law.” This highlights the important point that a decision such as Seago or County of Suffolk is not necessarily the end of the discussion for the copyright status of documents in those states. Seago held only that state agencies were not prohibited from asserting a copyright interest. Statements such as that of the SCSL indicate that if no such interest is asserted, other policies can prevail. While the SCSL does not elaborate on why it considers this to be true, it would be reasonable to argue that state agencies which turn over their documents to the state library also turn over their copyright in those documents. Once the proprietary stake has transitioned to the state library, then the policy adopted by the library would presumably govern
- One interesting example within the Library and Archives factor comes from South Carolina. South Carolina is the most recent state with a judicial decision on the copyright status of their government documents, with the 2008 decision of Seago v. Horry County. In Seago the South Carolina supreme court explicitly followed in the footsteps of NY’s County of Suffolk to hold that state entities are not prohibited from obtaining copyrights by the state public records law. The South Carolina State Library (SCSL), however, has one of the clearest library policy statements in the country on their website, stating that “the South Carolina State Library considers [Records, documents and information made available by the agencies of South Carolina state government or its subdivisions] to be in the public domain according to US copyright law.” This highlights the important point that a decision such as Seago or County of Suffolk is not necessarily the end of the discussion for the copyright status of documents in those states. Seago held only that state agencies were not prohibited from asserting a copyright interest. Statements such as that of the SCSL indicate that if no such interest is asserted, other policies can prevail. While the SCSL does not elaborate on why it considers this to be true, it would be reasonable to argue that state agencies which turn over their documents to the state library also turn over their copyright in those documents. Once the proprietary stake has transitioned to the state library, then the policy adopted by the library would presumably govern