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I am a Professor of Law and the Director of the Program on Information Justice and Intellectual Property at the American University, Washington College of Law and am a founding member of the Creative Commons board.

Saturday, March 31, 2007

Open Access Law - Access to Congressional Information

Two recent developments have helped highlight the general problem caused by application or implementation of copyright law to restrict access to federal information and federally-funded information and with policies that otherwise restrict access to such information.

First, as many readers may know, Speaker of the House Nancy Pelosi launched a blog in February 2007, and she posted a video taken by a C-SPAN camera of a committee hearing on the blog. The House Republican Study Committee accused her of infringing C-SPAN's copyright in the video and misusing it for partisan purposes.

There was some question of whether this video was in the copyright public domain as a government work under Section 105, which withholds copyright protection from works of authorship created by federal employees within the scope of their employment.

C-SPAN takes the position that video of proceedings on the floor of the House is in the public domain but that its committee footage is under copyright because it is taken by non-federal employees. However, C-SPAN has adopted a policy (i.e. a license) that "permits" non-commercial use of certain footage with attribution. (See also http://www.lessig.org/blog/archives/003718.shtml.)

Too many folks have assumed too quickly that all video is copyrightable. To be an "original work of authorship," the C-SPAN video must reflect a minimal spark of creativity on C-SPAN's part. If, as is likely, C-SPAN has little real choice about where to place its camera or how the room is lit, then there is a very real question about whether this video is in the public domain for lack of originality.

Second, capitolizing on the moment, a public interest coalition is rightly calling upon Congress to provide open access to the reports of the Congressional Research Service. These are U.S. Government works under copyright law, so this is not a copyright issue but a straight access issue.

This is an important step for the Movement for Open Access Law. For those who define open access as being solely about access to the scholarly literature, should appreciate and embrace this related movement for access to government-funded information.

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