Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...
June 3 — State legislation to clarify that California should profit from its iconic images and names is headed to the state Senate.
The California State Assembly, 73-3, approved Assembly Bill 2880. Proponents said it would give California more control over state-created intellectual property, but opponents argue that it's a misguided attempt that fails to improve either IP protection or the public’s right to access.
“Although it has always been the intent of the legislature to ensure that state agencies can own, hold, and acquire intellectual property, this bill clarifies existing law by explicitly providing that a California public entity may own, license, and if deemed appropriate, register intellectual property,” according to a May 31 assembly floor analysis.
A.B. 2880, in order to maintain the public’s right to information, provides the state’s IP authority “only to the extent that it is not inconsistent with the California Public Records Act, the California Constitution, or the First Amendment of the United States Constitution,” the analysis said.
But Ernesto Falcon, legislative counsel for the Electronic Frontier Foundation, which plans to continue opposing the bill in the Senate, disagreed.
“There hasn’t been adequate recognition that the public’s free and unfettered access to public works is being eliminated,” Falcon told Bloomberg BNA June 2. “That’s just not being given its credit.”
The bill attempts to avoid a collision with the records act and IP law, “but I think there is no way to make copyright law and the CRA to be a happy family,” Falcon said. “The two are diametrically opposed. It’s openness versus restriction, and the state can’t choose both.”
The bill's amendments require a state entity to “reasonably consider good faith” before sending a takedown notice, specify statutory damages only when there is no evidence of fair use and waive statutory damages with a court fair use finding.
A state agency can’t deny a request for a record that is otherwise public on the grounds it’s protected by the Copyright Act, 17 U.S.C. Sec. 101 et seq. Requests can only be denied if facts favor nondisclosure in the public interest, or the record is exempt under the Public Records Act.
A public agency can issue a license that may restrict the holder from using the record for a commercial use “only if such use would result in economic harm to the public agency or to the public’s interest.”
Falcon said the changes don't resolve the issue of preventing a public body's use of copyright law to stifle criticism (City of Inglewood v. Teixeira, 2015 BL 272093, C.D. Cal., No. 2:15-cv-01815-MWF-MRW, 8/20/15 ) (43 Med.L.Rptr. W-4, (10/20/15)) (199 PTD, 10/15/15) (165 PTD, 8/26/15).
The Senate most likely will vote on bill after August if it passes out of policy committee as required by the July 1 deadline. The last day the California State Legislature can pass bills is Aug. 31.
The bill grew out of a federal dispute involving the former concessioner at Yosemite National Park and trademarked names at the California park ( DNC Parks & Resorts at Yosemite, Inc. v. United States , Fed. Cl., No 15-1034C, order granting leave to file 5/19/16 (99 PTD, 5/23/16).
To contact the reporter on this story: Joyce Cutler in San Francisco at email@example.com.
To contact the editor responsible for this story: Mike Wilczek in Washington at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)