Article I, Section 8, US Constitution - PowerPoint Presentation

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Article I, Section 8, US Constitution

To promote the Progress of Science and useful Arts, by securing for

limited

Times to Authors and Inventors the exclusive Right to their

respective

Writings and Discoveries.

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Section 105 of the Copyright Act

Copyright protection under this title is not available for

any

work

of

the

United

States Government, but the

United States

Government

is

not precluded

from

receiving

and holding copyrights

transferred

to it by assignment,

bequest

,

or

otherwise.

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Santa Clara County vs. California First Amendment Coalition (170 Cal. App. 4

th

1301)

Underlying litigation was about whether the county has to disclose GIS map data to the public. Santa Clara attempted to resist a public records act request by claiming copyright.

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Government Code 6254.9 – Computer Code copyright exemption

(a) Computer software developed by a state or local agency is not itself a public record under this chapter.  The agency may sell, lease, or license the software for commercial or noncommercial use.

(b) As used in this section, “computer software” includes computer mapping systems, computer programs, and computer graphics systems.

(c) This section shall not be construed to create an implied warranty on the part of the State of California or any local agency for errors, omissions, or other defects in any computer software as provided pursuant to this section.

(d) Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer.  Public records stored in a computer shall be disclosed as required by this chapter.

(e) Nothing in this section is intended to limit any copyright protections.

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The Court of Appeal found that…

The Court “must reject the County’s suggestion that copyright law gives it a right to control the public’s use of the

basemap

data by requiring all who receive copies to sign an end-user agreement. Not only is such a result contrary to the letter of the PRA, but, as explained below, it would have a chilling effect on the public’s ability to use and discuss records bearing on the activities of their own government.”

“In our view, that phrasing operates only as a legislative

recognition

that copyright protection for software is available in a proper case; it cannot be read as an affirmative

grant of authority

to obtain and hold copyrights. The Legislature knows how to explicitly authorize public bodies to secure copyrights when it means to do so.”

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Governing Board of a community college copyright power – Cal Edu. Code Section 72207

The governing board of a community college district may secure copyrights, in the name of the district, to all copyrightable works developed by the district, and royalties or revenue from said copyrights are to be for the benefit of the district securing said copyrights.

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California Health and Human Services Agency

Cal. Health and Safety Code Sect. 130251.15

(a) All deliverables, as defined in the scope of work originated or prepared by the state-designated entity or state governance entity pursuant to its applicable contract, including papers, reports, charts, and other documentation, but not including the applicable entity's administrative communications and records relating to the contract, shall, upon delivery and acceptance by the California Health and Human Services Agency, become the exclusive property of the state, and may be copyrighted by the state under the oversight of the agency.

(b) If any material funded pursuant to the contract may be copyrighted, the agency reserves the right to copyright the material, and the entity agrees not to copyright the material without prior written approval from the Secretary of California Health and Human Services.  The secretary shall consent to, or give a reason for the denial to, the entity in writing within 60 days of receipt of the request.

(c) If the material is copyrighted with the consent of the agency, the agency reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, prepare derivative works, publish, distribute, and use the materials, in whole or in part, and to authorize others to do so, provided written credit is given to the author.

(d) All inventions, discoveries, or improvements of the techniques, programs, or materials developed pursuant to the contract shall be the property of the agency.  The agency agrees to grant a royalty-free, nonexclusive license for any invention, discovery, or improvement to the entity and further agrees that the entity may sublicense additional persons on the same royalty-free basis subject to the approval of the agency.

(e) Nothing in this section shall be construed to limit the intellectual property and copyright authority of the federal government.

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Toxic Substances Control copyright power Cal Health and Safety Code Sect. 25201.11

(a) Copyright protection and all other rights and privileges provided pursuant to Title 17 of the United States Code are available to the department to the fullest extent authorized by law, and the department may sell, lease, or license for commercial or noncommercial use any work, including, but not limited to, video recordings, audio recordings, books, pamphlets, and computer software as that term is defined in Section 6254.9 of the Government Code, that the department produces whether the department is entitled to that copyright protection or not.

(b) Any royalties, fees, or compensation of any type that is paid to the department to make use of a work entitled to copyright protection shall be deposited in the Hazardous Waste Control Account.

(c) Nothing in this section is intended to limit any powers granted to the department pursuant to Section 6254.9 of the Government Code or any other provision of law.

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County Board of Education Copyright power Cal Edu. Code Sect. 1044

Any county board of education may secure copyrights, in the name of the board, to all copyrightable works developed by the board, and royalties or revenue from such copyrights are to be for the benefit of the board securing such copyrights.

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B. Objective Unreasonableness of the City’s Claims

The Court agrees with Defendant that the City’s claims were objectively unreasonable. As the Court determined in its MTD Order, “the only published authority on the question of the ability of California public entities to assert copyright over works they produce holds that the City may not assert a copyright interest in the City Council Videos.”

(MTD Order at 6). Prior to bringing this action, the City should have closely scrutinized the only controlling authority on this issue—County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal.

Rptr

. 3d 374 (2009)—and at least discussed the case with Defendant or his counsel.Slide13

C. The City’s Motivations in Bringing its Claims

It is, of course, impossible to know with certainty what prompted the City to bring this lawsuit. The City avers that its only motivation was to enforce the rights it believed it had in the videos. (Opp. at 11). But the Court is not persuaded. As Defendant rightly notes, the main justification of the Copyright Act is “the protection of the commercial interest of the author.” Garcia v. Google, Inc., 786 F.3d 733, 744-

45 (9th Cir. 2015) (

en

banc) (quotation marks and citations omitted) (emphasis in the original). California law, however, prohibits the City from charging anything more than the “direct costs of duplication” when providing public records. (MTD Order at 19). Pecuniary gain, therefore, could not have been the motivating factor in filing this action.

As the Court made clear at the hearing, the City’s most plausible purpose was to stifle Defendant’s political speech after he harshly criticized the City’s elected officials. As such, this factor weighs heavily in favor of an attorneys’ fees award.

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Legislative Response with AB 2880

13988.3.(a)

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires.

A public entity’s intellectual property right shall not preclude the public entity from disclosing any information otherwise accessible under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1). A disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of

Title 1) shall not be construed as waiving any rights afforded under the federal Copyright Act of 1976 (17 U.S.C. Sec. 101 et seq.).Slide15

Public Entity under California Law

811.2. "Public entity" includes the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.Slide16

Exclusive Rights under Copyright Law

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or

phonorecords

;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or

phonorecords

of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.Slide17
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