Access to Government Information: What hasn't been learned from the Pelosi/C-Span debacle?

From Raizel:

In the midst of many of the recent debates about copyright, including the YouTube/Viacom lawsuit, there has been a lack of discussion of two separate, but overlapping issues -- access to government publications and fair use.

The Pelosi / C-Span debate was a great example of how difficult it is to talk about the" public domain" and "fair use" effectively. House Speaker Pelosi posted a minute of herself talking about global warning at a Congressional hearing taken from a C-SPAN broadcast, and was subsequently sent a take-down notice. As Eric Goldman states "If our legislative leaders can't figure out what video they can recycle, how in the world can less-trained lay people do so?"

Government works created by the U.S. federal government are not protected by copyright; instead these works (with limited exceptions for materials withheld for security, export control, and policy reasons) are in the public domain. Therefore, when a private publisher repackages these works, they only have a copyright in what has been added, if the additions reach the copyright standards of originality and creativity, but not to the government work as a whole. And incorrect claims of copyright in government publications (and other public domain materials) are rampant.

William Patry, a copyright expert, states that

"any claim to copyright must meet the constitutional standard of originality, regardless if C-Span's cameras are used; it is not the equipment, but the creative choices using the equipment that matters" and

"In the case of congressional hearings, one or two cameras shooting, without editing, falls far below the constitutional standard, and as a long time viewer of such hearings, I have yet to see one that I thought evidenced sufficient originality."

After protests, C-Span did change their copyright policy, allowing for greater use of all congressional hearings and press briefings, federal agency hearings, and presidential events at the White House. However, this was a policy change internal to one company, but unfortunately not a Congressionally-set policy for Congressional works or a legislative change clearly stating that the public is better served by having all publicly-released Congressional works available to the public (debates, reports, hearings, etc.).

Patry suggests "Congressional committees, or the House and Senate as a whole, could and should easily deal with the issue by precluding those who Congress permits to broadcast hearings from asserting copyright even if one to were to exist. These are important public events, and those who obtain special privileges to film or record them should be permitted to do so only on the condition the events remain in the public domain." (emphasis added)

By Congress not taking decisive action, limitations like C-Span's now former policy continue to limit how people are able to access government information. For example, the Congressional Research Service Reports, are in the public domain, yet the only comprehensive source are for-profits, with limited Reports available at a variety of different websites. For example, Copyright's "Fair Use" in Reproduction and Public Display Rights, an important (and in light of the difficulty in obtaining, ironic) report, is only available for a fee.

During the Pelosi/C-Span debate, a member of the public decided to "liberate" many of the Congressional hearings, posting many clips on the Internet Archive. Instead of being condemned as "copyright pirates" and lawbreakers, lumped in with mass-downloaders, those that those that make government information available and accessible should be commended.

See more after the jump for discussion about "fair use"

Even though I believe that even before C-Span's changed policy, the hearing recording was in the public domain, let's now assume that the material posted on Pelosi's website is copyrighted material. Let's tackle the fair use argument Pelosi didn't use when she decided to comply with the take-down notice:

The four factors judges consider in fair use cases are:

   1. the purpose and character of the use (Response: Pelosi posted a portion of her own public testimony to the government about an issue that concerned the public on a government website to further inform the public.)
   2. the nature of the copyrighted work (Response: Government testimony!)
   3. the amount and substantiality of the portion taken (Response: A minute or so of a particular Congressional hearing is a small portion of the whole) , and
   4. the effect of the use upon the potential market (Response: C-Span likely does not have a large market for short portions of Congressional hearings, yet videos of hearings are sold. )

Based on the "fair use" factors, this seems to be a "fair use" on all four factors -- and one even clearer than Wendy Seltzer's posting of the NFL's copyright notice.

Continued fear over copyright and "fair use" keeps us from freely using information that belongs to us as citizens of the United States.

Comments

[Mary]

I just came across CRS report, Copyright's "Fair Use" in Reproduction and Public Display Right, January 9, 2007 at http://opencrs.cdt.org/rpts/RL33810_20070109.pdf