Must public content/data created by a US city have an open license?

Question

I read on https://resources.data.gov/open-licenses/ that works created by U.S. Government employees within the scope of their employment default to the public domain:

The Federal Open Data Policy states: “Agencies must apply open licenses, in consultation with the best practices found in Project Open Data, to information as it is collected or created so that if data are made public there are no restrictions on copying, publishing, distributing, transmitting, adapting, or otherwise using the information for non-commercial or for commercial purposes.”

As described below, works created by U.S. Government employees within the scope of their employment default to U.S. Public Domain. However, works produced by outside parties which are created or obtained for use by the U.S. Government may need open licenses applied to them: “When information is acquired or accessed by an agency through performance of a contract, appropriate existing clauses 22 shall be utilized to meet these objectives”

The Project Open Data Metadata Schema provides a license field which is defined as “the license or non-license (i.e. Public Domain) status with which the dataset or API has been published” and must be provided as a URL. Guidance and example URLs can be found below for properly documenting the license or non-license of your agency’s data in accordance with the open data policy.

And according to https://legalaidatwork.org/factsheet/government-workers-rights/, person who works a local city or county are US government or “public sector” employee:

Any person who works for the U.S. government, the State of California, a local city or county, or any other public employer, such as a school district or transportation agency (e.g., Bay Area Rapid Transit) is a government or “public sector” employee. Those employees have employment rights that are often different than the rights given to employees who work for non-government, or “private” employers.

Am I correct to infer that public content/data created by a US city have an open license (public domain if created by US city employees or open license if created by a contractor)?

For example, must the minutes and agendas PDF documents on https://sfgov.legistar.com/Calendar.aspx (City and County of San Francisco) have an open license? I did email them ([email protected]) and their answer was "Minutes and agendas are official public documents, but may not be reposted or edited.", which contradicts my understanding, but perhaps I am missing something.

Answer 1

Am I correct to infer that content/data created by a US city have an open license (public domain if created by US city employees or open license if created by a contractor)?

No. For example, Larimer County, Colorado created election administration software in-house rather than using an outside contractor to do so, and it would be lawful for it to license that software to other governments in a manner that helps recover its development costs.

There is an issue over whether a city or state can copyright its municipal ordinances or statutes or regulations in a legally enforceable way when people have a legal duty to comply with them.

Some courts have held that state statutes that are binding upon people can't be protected in that manner.

Efforts of the West Corporation to protect its page numbering system that was widely used by courts to refer to public domain case opinions were mostly invalidated in litigation.

An open question is that most municipal governments incorporate by reference in their ordinances Uniform Building Codes that are subject to private copyrights and are not terribly cheap to obtain copies of. Yet, every person doing construction work is bound to follow the enacted ordinance including the parts incorporated by reference.

Answer 2

There are two separate legal issues here. One pertains to copyright. US government works are statutorily excluded from copyright protection, all other works are protected by copyright. Licensing for those non-government works is thus at the discretion of the author. A governmental entity may decide that all works that it commissions must have some open license, for example the federal open data policy.

Independent of copyright, many jurisdictions have information-disclosure laws, such as the Freedom of Information Act at the federal level, which mandate the disclosure of government records. This is not the same as a copyright open license. California has such a law, and in every jurisdiction, there are statutory exceptions and exemptions. Minutes of government meetings are not necessarily subject to disclosure, especially when the minutes contain sensitive private information.

Redistribution rights do not automatically flow from open records laws, unless the laws are so written or have been interpreted by the courts to have that consequence. The likelihood is very high that if a person redistributes a public record, that copying would be deemed to be "fair use", see Lindberg v. Kitsap County in Washington.

There is little necessary connection between a person's status as a government employee and copyright. First, a state employee is not a federal employee. Second, even a federal employee does not necessarily create "US government works" – that is controlled by the work in question, not the employment status of the author. Not every work created by a federal employee is a "government work", but if a federal employee (or independent contractor) is tasked with creating a particular document for the government, it is then a US government work.

Answer 3

The difference between the quotes in the question from data.gov and those from Legal Aid at Work is that the former talks of "U.S. Government employees," while the latter refers to "government or 'public sector' employee[s]." These are not the same. "U.S. Government employee" refers specifically to an employee of the federal government, not employees of state or local governments.

What Legal Aid at Work is discussing, on the other hand, is the applicability of restrictions on how an employer may treat its employees, specifically, the restrictions that are derived from U.S. Constitutional rights of the employees. After the ratification of the 14th Amendment in the 1860s, these restrictions apply to state (and, by extension, local) governments as well as the federal government. However, the Federal Open Data Policy is not so derived and does not apply to state and local government employees.

Perhaps the best (and most common) example here is employees of public universities. Public universities (aside from the military academies) are typically state employees, not federal employees. As such, the Federal Open Data Policy does not (necessarily) apply to the works they create and, indeed, it is actually extremely common for those works to not be in the public domain and to be subject to copyright and/or patent protection, typically with the state government having at least a partial intellectual property interest in the works. The works may be (and frequently are) licensed for use by other entities in exchange for license fees or royalties. This also frequently applies to works created by students in the course of their studies and, especially, if those are created in the course of university employment, such as employment as a graduate research assistant.

There are still some cases where federal laws and policies may require works created by state employees (or even private-sector employees) to be available to the public, though. For example, this is often a requirement for the results of research that was funded by federal research grants. A particularly common example is research funded by the National Science Foundation:

1. What is NSF's public access policy?
NSF requires that either the version of record or the final accepted manuscript in peer-reviewed scholarly journals and papers in juried conference proceedings or transactions (also known as "juried conference papers") be deposited in a public access compliant repository designated by NSF (the NSF Public Access Repository; NSF-PAR); be available for download, reading and analysis free of charge no later than 12 months after initial publication; possess a minimum set of machine-readable metadata elements in a metadata record to be made available free of charge upon initial publication; be managed to ensure long-term preservation; and be reported in annual and final reports during the period of the award with a persistent identifier that provides links to the full text of the publication as well as other metadata elements. For more information, see section 3.1 of "Today's Data, Tomorrow's Discoveries: Increasing Access to the Results of Research Funded by the National Science Foundation" at https://www.nsf.gov/publications/pub_summ.jsp?ods_key=nsf15052.

• NSF 18-041 Frequently Asked Questions (FAQs) for Public Access

On the other hand, what the quote from Legal Aid at Work is referring to is an entirely different topic which does indeed apply equally to federal employees and state/local ones: legal protections of the employees from the employers that derive from the First Amendment, from the Equal Protection Clause of the 14th Amendment, etc. These protections apply to employees of any level of government in the U.S. because the 14th Amendment incorporated them upon the states (or, in the case of the Equal Protection Clause, applied them directly to states from the beginning, as this was not a part of the original Bill of Rights.) However, since these provisions of the Constitution limit only government actions, they do no limit how private employers may interact or restrict the actions of their employees. This is the distinction that Legal Aid at Work was referring to. Granted, it should be noted that some of the restrictions that apply to the government as an employer (for example, ban on religious discrimination against employees) do also apply to most private employers, but this is because separate federal or state labor laws have created these restrictions on private employers, not because of the Constitutional provisions directly.