Wednesday, February 28, 2007

C-Span and originality

An article in the February 26th New York Times dealt with a flurry of claims regarding copyright in the broadcast of Congressional proceedings in the House of Representatives, spawned by a false charge by the House Republican Study Committee that Speaker Nancy Pelosi infringed alleged copyrights of C-Span in video transmissions of floor proceedings by hosting them on her website The Gavel. While C-Span itself corrected the group's claim, it did take the opportunity to claim copyright in transmissions of other congressional proceedings, such as committee hearings.

The distinction drawn by C-Span in the article was between proceedings where C-Span cameras are used and where government cameras are used. Thus, for floor proceedings, where government cameras are used, but which C-Span broadcasts, C-Span disclaims any copyright interest. By contrast, where C-Span cameras are used, as at a committee hearing recently where Speaker Nancy Pelosi testified, C-Span claimed copyright in the work, the work being the audiovisual telecast.

This distinction is hardly satisfactory as a complete look at the issue, nor is C-Span's following statement on its website:

"IMPORTANT NOTICE: Use of C-SPAN RSS Feeds and Audio/Video Files is Restricted. Please Read Notice Below Carefully.

C-SPAN's RSS feeds and audio/video files are made available free of charge for use by individuals for personal, non-commercial uses, but they are still fully protected by copyright.

Except as specifically permitted by this policy, C-SPAN's RSS feeds and audio/video files may not be used for any political, commercial or otherwise unauthorized purpose. Any posting, retransmission, sale, public performance or other unauthorized duplication of the audio/video files is strictly prohibited.

You may, however, make copies of the audio/video files (by means of, for example, a PC or an MP3 player) solely for your personal and noncommercial use.

You may also display the links and other information contained in C-SPAN's RSS feeds on a personal website so long as (i) you do not in any way modify such information, (ii) you do not redistribute the RSS feeds; (iii) you attribute the source of the feed to "www.C-SPAN.org", (iv) you do not improperly associate C-SPAN as a supporter or endorser of any particular website, activity or point of view, and (v) your links redirect users to a C-SPAN website."

Aside from the issue of the prohibition in claims to U.S. governments works, 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. The committee reports to the 1976 Act make this point clearly in discussing claims of copyright in telecasts of live sports events. 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.
The same holds true for confirmation hearings in the Senate. Claims in live podcasts of hearings or press conferences is farcical: sticking a microphone in front of someone is not an act of originality.

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. There is an easy answer to those who wish to recoup the investment in such acts and who assert they therefore must be able to obtain a copyright: add value. Copyright would then inure in the added vaue, although never in the transmission of the underlying proceedings.

The issue is likely to gain even more importance due to C-Span's efforts to change the way floor coverage is transmitted. As reported by Jonathan Kaplan in the December 14, 2006 edition of "The Hill":

Noting that Democrats have pledged to increase transparency and accountability in government, C-SPAN Thursday called on House Speaker-in-waiting Nancy Pelosi (D-Calif.) to give television viewers the same real-time access to views of the House floor as anyone sitting in the gallery would have.

In a Dec. 14 letter, C-SPAN CEO and Chairman Brian Lamb asked Pelosi to roll back the three-decade old practice that put the House Speaker in charge of the cameras. C-SPAN and the House reached the current agreement in 1979 when cameras were first introduced to the chamber. He wrote that he sought a similar agreement in 1994 when Republicans captured control of the House, but he did not get it.

Lamb wrote that the current 28-year-old arrangement is "an anachronism that does a disservice to the institution and to the public…Congressional technicians are limited to taking static, head-on shots of the representative who's speaking at the podium."

Rules and established practices prevent cameras from taking individual reaction shots or from panning the chamber, leaving viewers with an incomplete picture of what's happening in the House," he added.

In addition, Lamb asked Pelosi to immediately post how individual lawmakers voted on a piece of legislation. Currently, the parties' totals appear on screen, but the individual tallies are not posted until hours later.

"Frequently, by the time individual voting records are released by the [House] Clerk, the House has moved on to other issues. The net effect is that this important information is rarely included in C-SPAN's live telecasts of House floor proceedings," Lamb wrote. "Members' votes are the most critical part of the public record."

Pelosi has just received the letter and will review the request, said Jennifer Crider, Pelosi's spokeswoman.

C-SPAN is pressing the House first because its initial coverage of Congress started with the lower chamber, according to a C-SPAN spokesperson.


Subsequent stories indicate the request was rebuffed, but if such a request is ever granted, it should be not provide C-Span the opportunity to then argue that because it uses its cameras (or arguably makes editing choices), it should be able to assert copyright. The very transparency in government C-Span purports to seek is antithetical to claims of ownership in the events as recorded.

9 comments:

Frank said...

Terrific post. I am astonished the Congress has not already required what you propose here.

Chris said...

Clearly, the fewer degrees of freedom available to the videographer, the less likely the end work is to be subject to copyright. But, there are still some choices that are made -- whether to zoom in, how fast to zoom, color balance and so on. Many of those choices are probably either dictated directly by the subject or are some form of scenes-a-faire. But, C-Span may augment the video with, say, graphics or text describing the proceeding. And, those graphics clearly involve protectable choices about shape, color, animation, font and so on.

The audio track of the congressional video is probably completely unprotected. But, video is a much harder call.

Carl said...

Even if C-SPAN has the ability to assert coypright (which is dubious), I think as a non-profit they have a higher duty. I wrote an open letter to Brian Lamb making the case that he should voluntarily release all 6,251 congressional hearings in his video library back into the public domain.

joshua wattles said...

Carl, that's a fantastic letter to Brian Lamb. C-SPAN should not be able to claim ownership in anything depicting a government employee executing his or her functions on the floor, in any hearing or any other official presentation occurring on the various government properties to which it is given privileged access. The fact that its contract with the Congress doesn't so provide would seem to be as much of an artifact of a prior place and time as the rules about the cameras that Lamb complains about.

Anonymous said...

I'll go one step further. I don't think any footage or interview of a government official should be copyrightable--or at the very least, such footage should be subject to a new and freer standard of Fair Use.

Also, as to
"Rules and established practices prevent cameras from taking individual reaction shots or from panning the chamber, leaving viewers with an incomplete picture of what's happening in the House," he added.

This "1 shot" restriction helps Congressmen with a bit of disingenuous subterfuge called "reading in to the record" where congressmen will make self-serving speeches after hours on the floor to be transcribed at taxpayer expense into the official congressional record. The "1 shot" rule keeps C-Span viewers from seeing that the congress persons are speaking to an empty room. It seems very unlikely congress will ease up on this rule given the possible embarrassment it could cause.

Michael said...

If the 1-shot rule were relaxed, then the Congressperson would be forced to speak to the chamber -- not just posture for their fringe constituency. Since the current elected body is all about the fringe, I agree that we will not see this change.

This is really a central argument regarding, "Of the people, by the people, for the people." Thereby making transparency and access to information part of the battle for determining who has the most influence over the law, the people or the lobbyist.

If Pelosi &C, were interested in changing how our government works, they would have already enacted law to reduce the influence of the special interests and would have granted C-Span's request without hesitation. No surprise here.

William Patry said...

Michael, why so hard on Nancy Pelosi already? She did ensure passage of new ethics rules in the first 100 (legislative) hours, after all. And the Republicans can hardly be said to have distinguished themselves in that respect in the 12 years they had to run things.

As for members speaking from the floor, I am all in favor of as many cameras as might be appropriate, and for granting C-Span's request, provided and this is a big provided, no copyright is claimed. It was, after all, Tip O'Neill who ordered the cameras to pan the floor to demonstrate that the fiery speeches by the opposition were being made to an empty chamber.

Jim said...

It's hard to be too angry with C-SPAN. As I understand it the organization really took on a lot of risk and difficulty in getting the cameras into the chamber in the first place...

... but I also see your point about C-SPAN's dubious invocation of Creative Commons. Perhaps one can use a Creative Commons license to completely lock down material, but I'm pretty sure we (and C-SPAN) all understand that's definitely not what people think of, when they hear that some material is being released under a CC license.

Raizel said...

I thought you would be interested in my post about this issue at the LibraryLaw blog (http://blog.librarylaw.com/
librarylaw/2007/03/
access_to_gover.html),
because I cite extensively from this post.

Thanks!