advocacy

Copyright Week: Tools and policies for building and defending a robust public domain

Timothy Vollmer, January 14th, 2014

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The public domain is the DNA of creativity. Whereby current copyright law requires permission in order to use a work, the public domain is a copyright-free zone whereby anyone can use the work for any purpose without restriction under copyright law. One way works rise into the public domain is when the copyright protection term expires. Over the years, copyright terms have been extended again and again, making it really difficult for creative works to enter the public domain. While most early copyright terms lasted only a few years, a majority of copyright terms today last for the duration of the life of the author + 50-100 years. Increasing copyright terms have stymied creativity, drastically raised the prices of books, and exacerbated the orphan works problem (where authors of works can no longer be located to ask permission to use a work).

But the extremely long term of copyright is not the only problem for the public domain. The contours of copyright law grant certain rights to the author automatically, and without any necessary action from the creator. This seems like a reasonable thing to do for some creators, but it doesn’t support those who simply wish to make their content freely available, or who wish to opt out of copyright in the first place.

Tools

Authors should be able to say what they want to do with their creativity. The Creative Commons license suite provides a flexible way for creators to indicate the rights they wish to grant and those they wish to retain. Creators can use the CC licenses, which are a nonexclusive license that relies on existing copyright law for enforceability. And the CC license lasts for as long as the copyright term, after which the work will then be in the public domain. The CC licenses help to lower transaction costs by communicating certain rights in advance. That way, users don’t have to hunt down authors to get their permission to use a work. The permission is granted in advance by the author, so long as the user follows the terms of the license.

Another way for works to enter the public domain is when creators proactively waive their copyrights–they can place works in the public domain before the copyright term is over. Creative Commons has developed the CC0 (read “CC Zero”) Public Domain Dedication tool to allow authors to do this. The CC0 tool is used by authors who want to release all copyrights to their work and fully break down all barriers to downstream reuse.

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CC0 Public Domain Dedication

CC0 enables scientists, educators, artists and other creators and owners of copyright- or database-protected content to waive those interests in their works and thereby place them as completely as possible in the public domain, so that others may freely build upon, enhance and reuse the works for any purposes without restriction under copyright or database law.

The CC0 Public Domain Dedication is used widely by creators to waive all copyright and put their content in the worldwide public domain. It is used by open access publisher BioMed Central, who has adopted a policy whereby it now requires that data supporting its published articles be released into the public domain using CC0. Europeana uses CC0 to describe 30 million cultural objects in its massive collection. And even video game creative assets are being released into the public domain under CC0. And there are many more cases where creators and institutions in all fields are releasing their cultural, scientific, and educational works into the public domain.

CC0 allows authors to place their work into the public domain prior to the expiration of the copyright term. But what about works that are already in the public domain, such as really old works where it’s clear that the copyright has expired? To help label those works as already part of the public domain, CC has developed the Public Domain Mark.

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Public Domain Mark

[The] Public Domain Mark enables works that are no longer restricted by copyright to be marked as such in a standard and simple way, making them easily discoverable and available to others.

One particularly interesting use of the Public Domain Mark is from Europeana. Whereas Europeana uses the CC0 tool to dedicate to the public domain the metadata that describes cultural works (so anyone can use it to create interesting representations or applications), they use the Public Domain Mark to signal which of the works in their digital collection (e.g. the very old paintings, sculpture, etc.) are in the public domain already because the copyright term has clearly expired. In this way, it’s easy for users to filter the catalog to view works that are already in the public domain and which may be used for any purpose because their copyrights have expired.

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Advocacy & policy change

Even with tools making it easier for authors to communicate the rights they want attached (or not) to the works they create, we need to support public policy efforts to increase access to the public domain. One such effort is led by the International Communia Association, whose mission is “to foster, strengthen and enrich the public domain.” Communia originally developed the Public Domain Manifesto (which you can sign here), and also has generated 14 policy recommendations that lay out ways that the public domain should be supported through public policy changes and community action. Recommendations include reducing the term of copyright protection overall, making the process of identifying public domain works simpler by harmonizing rules of copyright duration and territoriality, and mandating that digital reproductions of works in the public domain should also belong to the public domain.

communia card small

Another way to support the public domain is to highlight and champion community-generated norms. For instance, Creative Commons has been a longtime supporter of the Panton Principles, which advocates that scientific data should be made available in the public domain.

By open data in science we mean that it is freely available on the public internet permitting any user to download, copy, analyse, re-process, pass them to software or use them for any other purpose without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. To this end data related to published science should be explicitly placed in the public domain.

We can also support the development of public domain policies where they make the most sense. Creative Commons and other groups have provided feedback to policy consultations on a variety of areas whereby the public could benefit from the adoption of public domain policies. For example, in the recent consultation in the European Union on public sector information (PSI), we argued that there should be no conditions attached to the re-use of PSI.

The best case scenario would be for public sector information to be in the public domain, exempt from copyright protection altogether by amending national copyright laws. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into the worldwide public domain to ensure unrestricted re-use.

In the United States, federal agencies are determining how they will support the President’s Directive requiring public access to federally funded research and data. In addition, the White House itself is trying to figure out how to guide implementation of another Executive Order on open data. We said that any data generated using federal monies should be marked clearly as being in the public domain (possibly using a tool like CC0) and immediately deposited in a scientific data repository. And the US Federal Government has heard from other public domain advocates for government information, who’ve drawn up the Best Practices Language for Making Data “License-Free.”

Building and defending a robust public domain requires work on multiple fronts–from the ongoing development and support of tools that can grow the pool of creative works in the public domain–to the active participation in policy change and copyright reform. While content in the public domain is owned by no one, the responsibility for strengthening this absolutely crucial resource should be shared by all who care about the future of creativity.

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Supporting Copyright Reform

Timothy Vollmer, October 16th, 2013

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Today Creative Commons released a policy statement expressing its support for copyright reform efforts around the world.

Creative Commons (CC) has enabled a new approach to copyright licensing over the last ten years. CC licenses facilitate novel social, educational, technological, and business practices, and support productive relationships around networked knowledge and culture.

We are dedicated stewards of our licenses and tools, and we educate users, institutions, and policymakers about the positive benefits of adopting CC licenses. Our licenses will always provide voluntary options for creators who wish to share their material on more open terms than current copyright systems allow. But the CC vision—universal access to research and education and full participation in culture—will not be realized through licensing alone.

Around the world, numerous national governments are reviewing or revising their copyright law. Some proposed revisions would broaden the scope of uses of copyrighted works permitted without the rightsholder’s permission. In response, it has been suggested that the very success of CC licenses means that copyright reform is unnecessary—that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.

Our experience has reinforced our belief that to ensure the maximum benefits to both culture and the economy in this digital age, the scope and shape of copyright law need to be reviewed. However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.

At its core, Creative Commons is rooted in the broader work to reform copyright. The founders of Creative Commons believed that copyright law was out of sync with how people share content on the Internet, and they developed the CC licenses as one way to address that problem. But we’d like to see copyright law itself better aligned to its original purpose–to enable and reward creative participation in culture and society.

From time to time, people in our community bring up the question of whether Creative Commons should be only a steward of the CC licenses, or also a steward of the broader participatory culture that the licenses are meant to promote.

Creative Commons affiliates, board, and staff have worked together over the past year to develop the policy statement above. The need for a statement like this became apparent at the 2012 Global Congress on Intellectual Property and the Public Interest in Rio de Janeiro. Several CC affiliates attended, many who work on copyright reform initiatives alongside their CC outreach. In Rio, affiliates described the dual nature of their work, which they feel sometimes requires removing their “CC Affiliate hat” when involved with reform efforts. They argued that developing tools for sharing creative content and arguing that outdated copyright laws be changed to better support legal sharing were two different sides of the same coin. Affiliates asked for clarification of the organization’s policies on affiliates engaging directly in copyright law reform proposals.

Over the next several months, Creative Commons drafted a statement that re-emphasizes the many benefits that CC licenses bring to society. But it also acknowledges the limitations of CC and expresses the need for reform of the current copyright system. CC affiliates came together in Buenos Aires in August 2013 to discuss the position of Creative Commons in relation to copyright reform. Over 100 affiliates and supporters participated in a day-long pre-conference event. The policy position was drafted and reviewed by the board of directors, affiliates, and staff.

There are several reasons that we feel such a position is useful–and necessary. First, there have been several proposed laws (like SOPA/PIPA) and trade agreements (ACTA/TPP) that if enacted would be detrimental to user rights to access and use information. And, we’ve heard that in some policy discussions the success of CC as a voluntary licensing scheme is being used by incumbent interests as evidence that fundamental copyright reform is unnecessary. This is incorrect. As we wrote in March,

[The] existence of open copyright licenses shouldn’t be interpreted as a substitute for robust copyright reform. Quite the contrary. The decrease in transaction costs, increase in collaboration, and massive growth of the commons of legally reusable content spurred on by existence of public licenses should drastically reinforce the need for fundamental change, and not serve as a bandage for a broken copyright system.

The passage of increasingly harsh copyright regulations has the potential to render CC licenses and tools ineffective. The aim of these laws are counter to CC’s mission and vision. Second, it’s clear there are some areas of copyright where open licensing won’t solve the problem. One example is increasing access to copyrighted works for the visually impaired. Paul Keller explains this well:

Take the WIPO treaty for the visually impaired: There had to be a treaty because a voluntary or market driven solution to end the book famine for visually impaired people in the developing world did not emerge even though the problem had been known for a long time. Quite clearly the problem cannot not be solved by encouraging publishers to license their works openly and, instead, it required a tailored legislative approach that builds on new limitation and exemptions that address this specific issue.

Third, many CC affiliates are already deeply embedded in copyright reform activities as a part of their broader legal, policy, and digital rights advocacy work. It makes sense for those affiliates engaged in reform efforts to be able to speak and engage wearing their “CC Affiliate hat,” instead of trying to maintain the ambiguous and sometimes arbitrary separation between their “CC work” and the work they do supporting user rights and the public interest.

While we think this policy statement is noncontroversial, we must proceed with care. Historically, our organization has not been heavily involved in copyright reform efforts. Instead, we’ve been focused on the development and stewardship of the licenses and public domain tools. And this will certainly continue to be the case. Direct advocacy supporting more fundamental copyright reform has taken a backseat, for several reasons. First, we recognize and appreciate the value of neutrality, and acting as a responsible and impartial steward of our licenses, no matter who wishes to use them. Making our tools the best they can be and educating about how to use them are our core tasks. Second, as a U.S. based 501(c)(3) nonprofit corporation, we are constrained in our ability to engage in lobbying activities. Any lobbying conducted by CC headquarters staff will continue to be carefully tracked and reported. And lobbying by CC Affiliates will continue to be on behalf of the jurisdiction team in accordance with our MOU and established guidelines. Finally, there are groups that are well-positioned for advocacy activities, such as the Electronic Frontier Foundation, Open Rights Group, Open Knowledge Foundation, and La Quadrature du Net. We support and promote the crucial, timely work of these and other groups.

We reaffirm that the mission of Creative Commons will sometimes call for our involvement in reform efforts. At the Creative Commons Global Summit in Buenos Aires, Lawrence Lessig gave a talk entitled, “Laws that Choke Creativity”. Lessig said he supports the fundamental freedom to remix. “We need to share more, and share more legally,” he said. “But in order to do so, the law must change.” He said that Creative Commons is not the complete solution. “We need real change in real law if these freedoms are to be secured.”

File Repair icon by iconoci, from The Noun Project. CC BY.

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