Why are C-SPAN’s recordings copyrighted?

Carl Malamud wrote an interesting letter to C-SPAN’s Brian Lamb about use of C-SPAN congressional footage (local copy). Speaker of the House Nancy Pelosi posted a snippet of C-SPAN footage to her blog and C-SPAN cried copyright infringement. Sadly, Speaker Pelosi didn’t challenge this claim (even on fair use grounds, where she had a good case).

Lamb told the New York Times

What I think a lot of people don’t understand — C-Span is a business, just like CNN is. If we don’t have a revenue stream, we wouldn’t have six crews ready to cover Congressional hearings.

But the pertinent question is: should this footage be copyrightable in the first place? The question of who pays doesn’t address this more important issue and that question is fairly easily dispensed with: Americans cover C-SPAN’s expenses. American cable subscribers and taxpayers pay for C-SPAN, so when Americans use this footage as they wish, they’re using something they’re paying for. Furthermore, C-SPAN covers people in government talking in their official capacity and therefore, as Lawrence Lessig argued about the President on NBC’s “Meet the Press” in Wired magazine, the public interest value is so great nobody should be able to restrict anyone else from having or using the footage. Malamud would seem to concur, although his argument doesn’t focus on the legalities:

C-SPAN is a publicly-supported charity. Your only shareholders are the American public. Your donors received considerable tax relief in making donations to you. You and your staff were well paid for your excellent work. Congressional hearings are of strikingly important public value, and aggressive moves to prevent any fair use of the material is double-dipping on your part. For C-SPAN and for the American public record, the right thing to do is to release all of that material back into the public domain where it belongs.

BoingBoing.net has more commentary on this issue.

Give a corporation a commons, and watch the commons go away.