Thursday, September 06, 2007

UK Crown Copyright

Those in the U.S. take for granted that works of the U.S. Government are in the public domain, a principle expressed in Section 105 of the Copyright Act. Not so in other common law countries, where crown copyright -- assertion by the government of copyright in works produced by government employees or officials, including Parliament -- is the rule. A group called Free our Data is trying to change this and posted an interesting story on the issue today in the Guardian:

Time to take the jewels from the crown?

Campaigners question whether the ancient institution of crown copyright still has a place in the digital age

Bibles

Copyright of the King James Bible, one of the first widely available English-language editions, is vested in the crown in perpetuity.

What does the King James Bible have in common with an Ordnance Survey map? Both are subject to crown copyright, an ancient institution whose function is increasingly open to question. Ownership of almost all information produced at taxpayers' expense is one of the main legal weapons government has to control - or block - the re-use of public sector information in the knowledge economy.

Knowledge economy

By contrast, the US government does not claim copyright in its works. We argue that the UK government should follow the US in making all raw taxpayer-funded data available to the knowledge economy - except where that data compromises personal privacy or national security.

Some of our supporters say that a short cut to this state of affairs would be to abolish crown copyright itself. The idea is worth examining. Abolition was last floated in 1998, as part of a series of examinations in to what the government should do with its publishing arm, Her Majesty's Stationery Office. A green paper, Crown Copyright in the Information Age (tinyurl.com/2a8ea2), proposed abolition as one of seven options for crown copyright.

In the public consultation that followed, abolition emerged as the most popular. From 70 responses received, abolition received 12 votes as preferred choice. The runner-up (retaining copyright but in a simpler form) received eight votes. The snag was that although abolition was the most popular response, it was also the least popular, receiving the largest number of "unacceptable" votes.

Faced with this polarised response, the government chose compromise. In 1999, the Cabinet Office found a "general consensus" in favour of retaining copyright, with simplified procedures for re-use. This is broadly the strategy of the body responsible for controlling copyright, the Office of Public Sector Information (part of the National Archives), whose head, Carol Tullo, also enjoys the title the Queen's Printer. Today, the office runs a "click-use" licensing scheme for crown copyright and other government material. This is a Whitehall version of "creative commons", allowing the free reproduction of material provided the source is acknowledged.

Officials at the office say that, far from stifling the re-use of public information, crown copyright can help it happen. "Copyright helps ensure greater consistency in our licensing approach," says Jim Wretham, head of information policy. "It also protects the overall integrity of information, its badge of authenticity."

Judging by recent investigations on the re-use of public-sector information carried out by the Office of Fair Trading and the Cabinet Office, a debate about the abolition of crown copyright would be as polarised today as it was in 1998.

Even if a consensus could be built, abolition would not by itself open access to much information. While the list of crown bodies runs to several hundred organisations, from the Prime Minister's Office to HM Prison Service, swathes of data are owned by non-crown bodies. Top of the list come local authorities, who own the rights to data created at public expense.

Subtleties of constitution

Other exceptions are non-departmental public bodies such as the Environment Agency, which earlier this year was at the centre of a row about how it charges for data on the location of water sources. The reason lies with the subtleties of the British constitution: the Environment Agency is not a crown body, because its watchdog functions require it to take legal action against crown bodies, and the Queen cannot sue herself. The Financial Services Authority and the British Standards Institute are likewise non-crown bodies.

And ancient constitutional oddities abound. One such is the Authorised (King James) Version of the Bible. In the 17th century, the English-language Bible was a weapon of war, and rights are "vested in the crown" in perpetuity.

The simplest way to abolish crown copyright might be to abolish the crown itself. That, however, would take our campaign into much trickier waters.

A history of rights

From the Domesday book on, British governments have recognised the power of asserting ownership of information. In 1604, King James 1 authorised a new standard English translation of the Bible; because of its historical value in promulgating Protestantism, rights remain owned by the Crown. In 1990, the House of Lords ruled that the government could assert Crown copyright to prevent publication of the MI5 memoir, Spycatcher. Today, Crown copyright lasts for 125 years, or 50 years from commercial publication.

The modern bureaucracy of Crown copyright dates from 1786, with the formation of a new Treasury department, His Majesty's Stationery Office (HMSO). In 1882, HMSO was made the official publisher to both Houses of Parliament, which still retain copyright on official proceedings. In 1889, Queen Victoria granted the controller of HMSO Royal Letters Patent as "printer to Her Majesty of all Acts of Parliament". The Letters Patent appointed the controller to hold Crown copyright. This grant and the office of the Queen's Printer continues today. In 1980, HMSO became a trading fund. In 2000, the government repositioned HMSO to regulate Crown copyright licensing. This role was taken on by the Office of Public Sector Information, now part of the National Archives.

· Join the debate at the Free Our Data blog: freeourdata.org.uk/blog

4 comments:

Max said...

So the question I have is how the various copyright treaties handle crown copyright in the US. The way I understand it, a Canadian copyright holder does not have to file for US copyright when the work is published in the US (provided that certain formalities are followed, mainly putting a copyright notice on the work). But within the US, the copyright on that work follows US law; that is, it's a US copyright. If you have copyright in one country, but US law would not allow you to copyright that same work, then you don't get a US copyright in that work when it's published in the US. Additionally, a lawsuit over infringement will follow the laws about infringement in the country where the infringement took place -- not the country where the work was created.

It's very possible that I'm wrong on this. But based on that background, I understand that Peter Pan is copyrighted in perpetuity in Great Britain, but not the US because the US does not allow for perpetual copyright and the various treaties do not require it.

So I've got two questions about the article. (1) is the perpetual crown copyright in the King James Bible (or any other works with a perpetual crown copyright) in force in the US, and (2) is the crown copyright in other national publications in force in the US given that under US law, publications from the federal government are not copyrighted (although state government publications can be)?fnord555

William Patry said...

Max, in very short, in the U.S. term is governed by U.S. law, and the ban on Section 105 applies only to US government works, not those of other countries.

Anonymous said...

the ban on Section 105 applies only to US government works, not those of other countries.

Which is a huge mistake, of course.

The sole reason for the US to have copyright laws is to serve the public interest, and the sole reason to have those laws actually grant copyrights is that by providing an artificial incentive to authors to create and publish what they otherwise would not have created and published, it yields a public benefit greater than the public costs associated with the grant.

When an author would have created and published a work anyway, because other incentives are sufficient to get him to do so, copyright is superfluous and should not be granted.

For most authors, it's tough to know. Registration formalities are a good mechanism, however.

But for some authors -- such as polities -- it's pretty easy to know. They have plenty of natural incentives already, since their only legitimate mission is to serve the interests of their people. Either creating and publishing the work would do that anyway, sans copyright, or they shouldn't be doing it, period.

So really, the US should never grant a copyright to itself, or to the several states, or to foreign nations, IGOs, etc. And within the US, at least, they should also preempt states from granting themselves copyrights.

Further, this should probably be expanded to cover works made using government money, whether we're talking about murals on a government building, or papers written by professors at a state-funded school, if they were written in the course of their duties. The money the public is paying in those cases is incentive enough; there's no need to charge them twice.

Of course, such sensible sorts of reforms should also be instituted in other fields. For example, Bayh-Dole needs to be repealed and replaced with a simple policy of 1) not allowing taxpayer funded inventors to get patents, but; 2) requiring taxpayer funded inventors to make similar disclosures so that the public domain is meaningfully enlarged.

There's nothing wrong with incentivizing authors (and inventors) to do what they otherwise would not, where it serves the public interest. Heck, I'd even like to see us pull out of Berne, et al, and offer national treatment unilaterally. But wastefulness is never appropriate.

Prof. Jay Dougherty said...

It might surprise some readers (not you Bill, of course) that Sect. 105 only applies to U.S. government works, not state government works. Although state works are believed to be public domain, nothing in the copyright act makes it so!