The following background readings in copyright and the public domain have been used in this blogpost.
- Copyright Basics (Carroll, 9 pages)
- Public domain (Wikipedia, 10 pages)
- Against Perpetual Copyright (Lessig, 8 pages)
- An Interview with Lawrence Lessig on Copyrights (Lessig, 5 pages)
- Bound by Law (Aoki, Boyle, and Jenkins, 76 pages)
- Value of the public domain (Pollock, 18 pages)
- Forever minus a day? Some theory and empirics of optimal copyright (Pollock, 29 pages)
I will discuss the basics of copyright to start with, followed by a short explanation of the public domain and the open licenses that cover the space between these two extremities. Copyright is an apparently simple right to get or have: the origin of the work has to be in the author holding the copyright. Copyrights hold for
- Books, manuscripts and speeches and other nondramatic literary works
- Computer programs
- Music (lyrics and recordings)
- Cartoons and comic strips
- Drawings, prints, and other works of visual arts
- Motion pictures and video recordings
- Dramatic scripts, plays, and screenplays
- Quotation of excerpts in a review or criticism for purposes of illustration or comment;
- Quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations;
- Use in a parody of some of the content of the work parodied;
- Summary of an address or article with brief quotations, in a news report;
- Reproduction by a library of a portion of a work to replace part of a damaged copy;
- Reproduction by a teacher or student of a small part of a work to illustrate a lesson;
- Reproduction of a work in legislative or judicial proceedings or reports;
- Incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported.
On the other side of the spectrum there is the public domain, where works can be used for whatever reason by whomever. Unlike earlier days, it now applies that if works are published without further notice, they are copyrighted, instead of part of the public domain. Instances of public domain works include works where copyright is expired, governmental works, titles/slogans/names and other works that cannot be copyrighted (although possible with trademarks), forfeiture, and abandonment (through for example Creative Commons licensing). It is impossible to appropriate or copyright content that belongs to the public domain.
It is interesting to discuss the boundaries of public domain and copyright. It could be difficult to distinguish PD and copyrighted content, and because of that, people may use apparent PD works (but are not PD) to develop new works (derivatives), which they put in the public domain, and that is illegal. A number of open licenses, or copyleft licenses have been brought into existence, to grant some subset of copyright to the public or to prevent commercialization or other use not intended by the creator, and to improve the reuse and remix of works. They usually forbid proprietary distribution, but can include more specifications on how to use the material (software, images, etc.).
The space between
The GFDL (GNU Free Documentation License, used by, amongst others, Wikipedia) and Creative Commons licenses exert a number of controls on the use of the work they license, but what controls exactly and how do they differ from copyright and public domain?
- Public domain comprises the body of knowledge and innovation (especially creative works such as writing, art, music, and inventions) in relation to which no person or other legal entity can establish or maintain proprietary interests within a particular legal jurisdiction. This body of information and creativity is considered to be part of a common cultural and intellectual heritage, which, in general, anyone may use or exploit, whether for commercial or non-commercial purposes. (Wikipedia)
- The purpose of GFDL is to make a manual, textbook, or other functional and useful document “free” in the sense of freedom: to assure everyone the effective freedom to copy and redistribute it, with or without modifying it, either commercially or noncommercially. Secondarily, this license preserves for the author and publisher a way to get credit for their work, while not being considered responsible for modifications made by others. This license is a kind of “copyleft”, which means that derivative works of the document must themselves be free in the same sense.
- The GFDL can be compared with the Creative Commons (CC) Attribution/ShareAlike license. Creative Commons provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry. You can use CC to change your copyright terms from “All Rights Reserved” to “Some Rights Reserved.” In specific, these are the most common options Creative Commons offers;
Attribution (By). You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request.
Noncommercial (NC). You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only
No Derivative Works (ND). You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.
Share Alike (SA). You allow others to distribute derivative works only under a license identical to the license that governs your work.
So how do these domains relate to each other? Creativity is by no means a stand-alone feature of a person or institution. Quite the contrary, it needs a rich public domain, as been said by Judge Alex Kozinski in the dissenting opinion for the 1993 White v. Samsung Electronics case. Lawrence Lessig, a prolific writer on copyright issues and one of leading persons behind Creative Commons, explains that new cultural works are built on top of others, and that copyright prevents this to happen, because of the trouble of having to consult the copyright owner, buy off the rights, etc. These are all all transaction costs, thus strict copyright legislation will favour large companies over individual creators. The value of the public domain, he explains, cannot only be measured in terms of profit, but also “comes from the content of a work being placed into the Public Domain to be discussed in print, copied, derived, modified, mixed, remixed, or respun into some new work.” Copyright would therefore, if applied rigorously on almost everything, stifle innovation and progress. And, interestingly, that is quite the opposite of the original intend of setting up copyright legislation, which should “promote the Progress of Science and useful Arts”.
David Wiley challenges us to think about the value of the public domain in relation to the the “open domain”, where works are conditioned, but open to use. As we have seen, there are different ways to openly license your cultural works, allowing different levels of freedom to use, remix, and distribute. The question is impossible to answer, because
- No specification is made about which Creative Commons license; and
- It is common wisdom that overprotecting works is as dangerous as underprotecting it, and that creativity needs a rich public domain.
Both the public domain and copyrighted domain are needed, because public good requires a mix of public and private. Individuals may find incentives in the possibility of owning their works and being able to make money out of it. Other don’t see the value of protecting it and just give it away to the public. It will depend on the author, but also on the work that is created. Therefore, by asking what would be the net benefit of licensing (ALL) works under the GNU Free Documentation License, would imply that it would be impossible to copyright works. This, in turn, would take away the incentives I just mentioned, causing a negative effect to the public good, because innovation would stifle. Making all works available for reuse and remix under these licenses might not have a positive effect on the net value of the public domain in the longer term.
The same arguments count for the issue of simply placing OER in the public domain and the net benefit for the open educational resources movement. Most educational institutions are (like) private organizations and have to compete with others, and increasingly in an international playing field. Their educational resources therefore, can be considered as something that could be competitive advantageous. By opening up, but not allowing commercial use (which is a difficult clause), the barrier for such an institution becomes lower. Also, because many OER-initiatives depend on the contributions of many individuals, whose reputations are of paramount significance to them, it might be impossible to become sustainable if contributors cannot impose attribution.
As Rufus Pollock explains the reason for copyright; “Thus while making existing knowledge open is optimal (for public value), such a strategy may not be compatible with ensuring its creation in the first place. When the first-best solution of up-front funding is impractical or inefficient we may have to make difficult trade-offs between the costs of restricting access and the benefits of providing creators with greater incentives to produce work.”
Evidence shows that the benefit of placing work in the public domain (PD) is that public domain works are more likely to be made available to the public. Pollock also showes that this access to older (PD) works generates value not only for the consumer but also revenue for the firms involved in re-issuing these PD works. Older, coppyrighted works gathering dust in vaults or even rotting away generate no revenue or value for society, and represent a tragedy for any nation’s cultural heritage.
So what about Open Educational Resources?
There are three broad possibilities that apply for educational resources:
- Do nothing will mean that the works are copyrighted. Still, if openly placed on a website, the works can be used according to the “fair use” doctrine, meaning that copyrighted works can be used without consultation for some educational or non-profit purposes.
- License your work, and choose a license that is very open (GFDL, CC-By), open with more restrictions for use (CC-By-NC-ND), or plain right copyright it.
- Give the work to the public domain and state that it is part of the public domain.
We have seen that not doing anything will mean in most countries that the content is copyrighted. This would not be a good option for social welfare. License the work under copyright laws at least makes it clear that it is copyrighted, but will cause it to be used for purposes determined by the author, and permitted by the author. This is not a good option within academic circles either, so that leaves us with a number of open licenses, out of which the creator has to choose a license to his or her likings. Creators need to be informed well, because the different provisions of the Creative Commons licenses can create incompatibility with other works, licensed differently.
Freedom of expression?
Lawrence Lessig explains that the United States (and possibly other nations as well) are currently facing an enormous threats regarding copyright legislation. Strong political movements try to extend copyright terms over longer periods of time, which benefits only the copyright owners. These are, taking into account that copyright already lasts 75, 95, or 120 years (depending on the type of work), family or publishers of the copyrighted content. They have the power to decide if and how material is used. The following premises explain that extending copyright does not create incentives for people that might be responsible for progressing science or creating useful arts, but merely granting a windfall to existing works.
- Copyright law’s constitutional purpose: to promote the progress of science and the useful arts; and
- Creativity needs a rich public domain; scientific progress and new useful arts are built on top of existing ones.
Lessig states that this strong political group, existing of lobbyists from Hollywood and recording industry, aren’t so much defending the rights of creators, they’re defending a certain business model. This group intends to create a “permission culture”, rather than “a world in which there are few barriers to entry, where a blog can create a major political scandal, a $218 digital film can go to the Cannes Film Festival, a podcast can reach tens of thousands of listeners, a mash-up can savagely criticize the government’s respons to a hurricane, where recording and remixing technology better than anything Phil Spector ever had may come bundled free with your laptop.” Current copyright legislation creates more and more barriers for creative individuals, who do not possess the time, money, or knowledge to clear their works of copyrighted material. In addition, the clearance itself is an enormous barrier of creating new material to start with.
He also refers to the lack of requirement in current copyright legislation of filing or renewing copyright. This results in a vast domain of works, where “it’s so hard to know what material is available and what material is not available… So there’s this mass of unsorted material out there that could or could not be available for public use creating vast uncertainty. As we said, just at the time that technology is enabling all sorts of new creativity, to build on this material and do stuff with it, the law is getting in the way and locking it up.”
In the end, a clear warning is stated by Lawrence Lessig; “We live in a time when our culture is increasingly tone-deaf to legitimate criticisms around the world. If there’s ever a time when we have to open up the opportunity for people to be critical and spread their creative message it’s now. Yet, just at this time, there’s this copyright war that’s shutting down channels of communication in the name of defending property rights. But in defending those property rights what you’re also doing is disabling an extraordinary system of expression that could be doing our democracy an extraordinary bit of good.”
Aoki, Boyle, and Jenkins (Bound by Law) confer that although copyright seems to eradicate opportunities for artists, and that copyright might stifle innovation and the progress of science and useful arts, it should not be neglected or violated. It can be a valuable tool for any kind of creator, also when he or she wants to share the work without charge. But they agree with Lessig that the system should not slide out of balance any further. The Creative Commons initiative therefore is very positive, because it provides low barriers for licensing work in any way a person wants. And clear information as well, which is needed to get people and institutions aware of the lost value of overprotecting works. The barriers are extremely low, and it provides, in absence of good copyright legislation, a great counterpart that will make the increasingly complex and abundant online world of information more transparent and useful.