Lobbying for More Than Just UELMA

We all know the intent behind UELMA. Authentication, preservation and permanent public accessibility to the most basic state-level digital primary legal resources, namely "state constitutions, session laws, codified laws, and administrative rules with the effect of law" by state actors designated as "official publishers” to carry out the provisions of the Act in those instances where state governments are delivering such legal materials in electronic formats. After that it is game on because UELMA does not affect any contractual relationship between an official state publisher and a commercial publisher, nor does it affect copyright claims.

Is UELMA flawed because of what it leaves unaffected? Of course not. The Uniform Laws Commission could not venture into contract and copyright laws. However, as folks lobby for UELMA adoption (current status available on the ULA site see also AALL's 2013 bill tracking report) they may want to take a look at what is happening in California.

California was the second state to adopt UELMA. SB 1075 was signed into law by California Governor Jerry Brown on September 13, 2012. If my always faulty memory isn't up to its usual tricks, I believe the Act takes effect in 2015. However state copyright claims and state publishing contracts with a commercial vendor remain an issue.

Lobbying for Creative Commons licensing in addition to UELMA. Recently California Assemblyman Brian Nestande (R-42nd Dist.) tossed AB 292 into the bill hopper. It calls for applying a Creative Commons License to the California Code of Regulations to allow any individual, at no cost, to use, distribute, and create derivative works based on the material for either commercial or noncommercial purposes because the California Office of Administrative Law holds an exclusive copyright on the CCR. I doubt Assemblyman Nestande would mind if I republish his office's press release in full. So here it is:

The agency responsible for reviewing and approving new regulations, the Office of Administrative Law (OAL,) holds an exclusive copyright over regulations that are created with taxpayer dollars.  All taxpayers already fund the activities of government, including the creation of new regulations.  Restricting access to these regulations requires taxpayers to pay twice for the same government activity.  Because all taxpayers are bound by the law, businesses are compelled to pay for complete access to the regulations that bind them.  The cost of purchasing access to the regulations can vary from $30 to more than $3,000, depending on what sections of regulations are needed.

AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.

While OAL is required to post a copy of the California Code of Regulations (CCR) on its Web site, it makes this version prohibitively difficult to navigate, and restricts access with the following restriction: “no part of this Web site may be reproduced, duplicated, copied, downloaded, stored, further transmitted, disseminated, transferred, or otherwise exploited without Thomson Reuters’ prior written consent.”  These restrictions require businesses to purchase complete access from Thomson Reuters, from which OAL derives a share of the profits.

When the Legislature enhances the profitably of an activity, it incentivizes that activity.  By allowing OAL to profit from access to taxpayer funded activities, the Legislature is inherently making a statement that California needs more regulations.  By giving a profit motive to approve regulations, it incentivizes the approval of more regulations.

Allowing OAL to profit from the sale of access to the regulations it has the authority to approve creates an inherent conflict of interest.  OAL currently uses its proprietary copyright to issue an exclusive license to Thomson Reuters in exchange for a $400,000 annual license fee and 7% of all royalties.  As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit.  This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.

Due to the restrictions OAL sets forth on access to state regulations, search engines such as Google cannot legally access and index the CCR.  In addition, developers cannot create user-friendly applications for smartphones and tablets that would allow the public to easily access, manipulate, and share regulations. This in turn can limit innovation and transparency.

Additionally, because of these restrictions to the CCR no individual can legally reproduce the text of a regulation.  This prevents covered entities from freely sharing and discussing new regulations.  Even a petition to repeal a regulation would violate OAL’s copyright if it quotes from the text of that regulation. This hindering of political speech is counter to an open and transparent government.

Finally, access to statutes and regulations should be consistent across all of California government.  Unlike OAL’s copyright over administrative law, the Legislature holds no copyright over the laws it creates.  Legislative Counsel covers the cost of making laws and is available to every taxpayer because this is a proper and legitimate role of government.

By making the CCR free and readily available to the public, we are creating a more transparent government and easing the burden on businesses that must purchase access to the regulations that bind them.

In those instances where states claim copyright ownership of primary legal resources, UELMA lobbyists might want to look to AB 292 for model language to include or at least submit as companion legislation. Such language should also eliminate any commerical publisher's copyright claims to section heading texts in codifications of otherwise public domain primary legal resources if created by the publisher. This way any individual could at no cost easily use, distribute, and create derivative works based on the material for either commercial or noncommercial purposes.

End note: Granted potential separation of powers issues abound but I would push further for Creative Commons licensing of state publications. For example the Ohio Judicial Conference, an independent statutory entity within the judicial branch of government, claims copyright ownership for Ohio Jury Instructions. Lexis has the contract to publish OJI in print. List price is a whopping $544. Compare that to other state agency authored pattern jury instructions pricing.

Granted Lexis OJI includes some editorial enhancements -- "explanatory Committee Notes, references to Ohio Revised Code sections, cases and other materials for your own research," is updated at no small expense, and even includes a CD (not yet, if ever, to be replaced by a "free" eBook). But for a print version, Lexis OJI is the only game in the Buckeye State.

For online distribution of OJI, the Ohio Judicial Conference currently limits licensing to three vendors. At the moment they are Lexis, West and Casemaker. Why not more? To create a bidding war? Isn't it time to stop an "independent statutory entity within the judicial branch of government" from milking this cash cow?

I have no doubt that watchdogs in other states can find similiar examples at many, if not most, branches of state government. [JH]