Mike Masnick at Techdirt asks Does It Make Sense For Governments To Make Their Content Creative Commons… Or Fully Public Domain?
Ideally all Public Sector Information (PSI; government content and data) would be in the public domain — not restricted by copyright or any related rights. Masnick points to the U.S. federal government’s good policy:
nearly all works produced by the [U.S.] federal government automatically go into the public domain, and don’t receive any form of copyright
Unfortunately it is not quite that good: works produced for the U.S. federal government, but not directly by federal government employees or officers are covered by copyright — including works acquired, produced by contractors, and funded by grants. Furthermore, works produced by U.S. federal government employees are only unambiguously free of copyright in the U.S., thus cannot be considered in the public domain worldwide. This is not to say that the U.S. federal government policy is not stellar — relative to policies of other levels of government within the U.S., and those of other governments worldwide, it truly is, to the particular and tremendous benefit of the U.S. people and economy. But we live in a globalized and highly interconnected world now, and even that stellar policy could be improved.
This brings us to another question: how to improve policy around PSI? The status of U.S. federal government works is specified in the U.S. Copyright Act. Crown Copyright is specified in the copyright acts of various commonwealth jurisdictions. Similarly many other jurisdictions’ copyright acts specify the status of and any special limitations and exceptions to copyright for government works. Clearly changing a jurisdiction’s copyright act or otherwise changing its default status for PSI (preferably to public domain) would be most powerful. But they aren’t changes anyone can effect relatively quickly and deterministically (historically opening up a copyright act has led to more restrictive copyright).
In the meantime (presumably many years) there’s a tremendous desire to make government more accessible and unlock the value of content and data that is funded, held, and produced by governments — and existing public sector copyright defaults are recognized as a barrier to achieving these benefits. Especially in the last few years, governments have been implementing their own directives aimed to modernize PSI while some government agencies and politicians look to move more quickly within their remits, and activist citizens push to clear barriers to the potential of “open government” or “government 2.0″ with utmost urgency. This is where government use of a standard public license, usually one of the Creative Commons licenses, makes lots of sense. An agency, province, city or other body that holds copyright or funds the creation of copyrighted works can choose to open its or funded content by releasing under one of the Creative Commons licenses, or if they are really progressive, under the CC0 Public Domain Dedication.
Many governments are using CC tools in just these ways, and we expect that many more will in the coming years. That said, if any do manage to change policy defaults for PSI such that more government content and data is automatically in the public domain — we will be cheering all the way. In fact, we already have a tool for marking and tagging works that are in the public domain worldwide. The CC Public Domain Mark is currently applicable to really old works, but it would be lovely if a government were to decide to by law make all of its content unambiguously public domain, worldwide, thus making the CC Public Domain Mark applicable (of course there is no requirement to use the mark; it is just there for people and institutions that wish to use it to signal to humans and machines the public domain status of a work).
A couple caveats. First, whether they ought to or not, many governments like using copyright to control PSI. Sometimes the desire comes from a good place, e.g, to have the information be used in a way so as to not mislead the public, imply endorsement of the government, or imply that other regulations, e.g., privacy, do not apply. CC licenses have mechanisms to address these concerns where relevant (e.g., attribution to original URL, noting adaptation, non-endorsement) and government licensing frameworks (or non-binding guidelines in the case of the public domain) that explain orthogonal rights and responsibilities (e.g., privacy) but do not create incompatible licenses are key to addressing these concerns.
Second, although as noted above, usually use of any CC license would give the public more rights to PSI than they have now. But, licenses with a NonCommercial or NoDerivatives restriction set the bar too low. Clearly to maximize the value of public sector information, business needs to have access, and to maximize the ability of citizens to do interesting things with content, adaptation needs to be permitted. We strongly prefer governments use fully free/open CC tools — the CC0 Public Domain Dedication and CC Attribution (BY) and Attribution-ShareAlike (BY-SA) licenses. The Definition of Free Cultural Works and Open Knowledge Definition spell out why those tools are preferred in general. We look forward to working with the Open Knowledge Foundation and others to flesh out the specific and even more compelling case for fully free/open PSI.
- Creative Commons and Public Sector Information: Flexible tools to support PSI creators and re-users
- State of Play: Public Sector Information in the United States
- Creative Commons presentation on interoperability and sustainable sharing policy at the Share-PSI.eu workshop on removing the barriers to pan European market for public sector information re-use and all position papers and slides from that workshop.
- The “Licensing” of public sector information paper from LAPSI, the European Thematic Network on Legal Aspects of Public Sector Information.
The basic idea of Creative Commons, offering free copyright tools, is copied from the free software movement. However, CC licenses are not intended to be used to release software, as our FAQ has always said.
One important reason why Creative Commons licenses should not be used to release software is that they aren’t compatible with existing free software licenses, most importantly the GPL from the Free Software Foundation, which is used by over half of free software projects. A commons fractured by legal incompatibilities is a weak commons, and it would be deeply contrary to our mission to fracture the commons of software. (It should also be noted that the FSF helped unfracture the non-software commons by facilitating Wikimedia’s migration to CC BY-SA as the main content license of Wikipedia and its sibling sites.)
While the vast majority of contemporary free software is released under the GPL or another free software license, there is also a long tradition of public domain software, which was free before the term free software existed. Indeed, prior to the 1970s, copyright did not apply to software. Currently, SQLite, an embedded database that you almost certainly use, is probably the most popular software that is dedicated to the public domain.
There are a variety of public domain dedications used to release software, which is mostly not a problem — to the extent such dedications are well-crafted, they don’t present a legal interoperability problem. This means it is possible to improve the state of the art in public domain dedications without harming the ecosystem. (Though this doesn’t mean an infinite variety of public domain dedications is optimal — at the extreme having to determine whether a new dedication is well-crafted each time one encounters a new public domain work would make using public domain works unattractive.)
In addition to licenses, Creative Commons also offers public domain tools. In creating the CC0 public domain dedication, we did set out to improve the state of the art in public domain dedications, and we think we’ve been pretty successful. Users seem to think so — ranging from governments and institutions to musicians.
We hadn’t set out with CC0 to improve on public domain dedications for software. However, since the release of CC0, we’ve been approached a number of times about using CC0 to dedicate software to the public domain. While we were happy to hear of this unanticipated demand, we wanted to tread very carefully so as to not create any unintended consequences for the free software ecosystem. This led to discussions with the Free Software Foundation, the steward of the GPL and moral leader of the free software movement.
We’re really happy to announce that the Free Software Foundation has added CC0 to its free software licenses list (which includes public domain terms). As usual, the FSF’s language is extremely clear, so we simply quote two sections from their list:
CC0 is a public domain dedication from Creative Commons. A work released under CC0 is dedicated to the public domain to the fullest extent permitted by law. If that is not possible for any reason, CC0 also provides a simple permissive license as a fallback. Both public domain works and the simple license provided by CC0 are compatible with the GNU GPL.
If you want to release your work to the public domain, we recommend you use CC0.
If you want to release your work to the public domain, we encourage you to use formal tools to do so. We ask people who make small contributions to GNU to sign a disclaimer form; that’s one solution. If you’re working on a project that doesn’t have formal contribution policies like that, CC0 is a good tool that anyone can use. It formally dedicates your work to the public domain, and provides a fallback license for cases where that is not legally possible.
We’ve also added an entry to the CC0 FAQ about using CC0 to release software, which you ought read if you’d like to do that. If you’re only familiar with the way CC licenses and public domain tools are typically used on web pages and other media, be aware that with free software, the full license (or public domain terms) are usually included with the software. In order to make this easy to do, we’ve taken this opportunity to fulfill a longstanding request — plain text copies of the “legalcode” for CC0 and CC’s six main international licenses. See CC software engineer Chris Webber’s post for details.
Special thanks to Chris Webber and the FSF’s Brett Smith for their persistent work to make the CC0 software recommendation possible.3 Comments »
CERN Library releases its book catalog into the public domain via CC0, and other bibliographic data news
CERN, the European Organization for Nuclear Research that is home to the Large Hadron Collider and birthplace of the web, has released its book catalog into the public domain using the CC0 public domain dedication. This is not the first time that CERN has used CC tools to open its resources; earlier this year, CERN released the first results of the Large Hadron Collider experiments under CC licenses. In addition, CERN is a strong supporter of CC, having given corporate support at the “creator” level, and is currently featured as a CC Superhero in the campaign, where you can join them in the fight for openness and innovation!
Jens Vigen, the head of CERN Library, says in the press release,
“Books should only be catalogued once. Currently the public purse pays for having the same book catalogued over and over again. Librarians should act as they preach: data sets created through public funding should be made freely available to anyone interested. Open Access is natural for us, here at CERN we believe in openness and reuse… By getting academic libraries worldwide involved in this movement, it will lead to a natural atmosphere of sharing and reusing bibliographic data in a rich landscape of so-called mash-up services, where most of the actors who will be involved, both among the users and the providers, will not even be library users or librarians.”
In related news, the Cologne-based libraries have made the 5.4 million bibliographic records they released into the public domain earlier this year, also via CC0, available in various places. See the hbz wiki, lobid.org (and their files on CKAN), and OpenDATA at the Central Library of Sport Sciences of the German Sports University in Cologne. For more information, see the case study.
The German Wikipedia has also used CC0 to dedicate data into the public domain; specifically, their PND-BEACON files are available for download. Since Wikipedia links out to quite a number of external resources, and since a lot of articles link to the same external resources, PND-BEACON files are the German Wikipedia’s way of organizing the various data. “In short a BEACON file contains a 1-to-1 (or 1-to-n) mapping from identifiers to links. Each link consists of at least an URL with optionally a link title and additional information such as the number of resources that are available behind a link.” Learn more from the English description of the project.1 Comment »
In addition to changing their default licensing policy from CC BY-NC to CC BY, the University of Michigan has enabled even greater sharing and reuse by releasing more than half a million bibliographic records into the public domain using the CC0 public domain dedication. Following on the heels of the British Library, who just released three million bibliographic records into the public domain, the University of Michigan Library has offered their Open Access bibliographic records for download, which, as of November 17, 2010, contains 684,597 records.
The University of Michigan Library has always been particularly advanced in regards to open content licensing, the public domain, and issues of copyright in the digital age. To learn more, see the John Wilkin’s post and help to improve the case study.
In addition, ever since we rolled out the CC0 public domain dedication, CC0 use for data has been on the increase. Check out the wiki for all current uses of CC0, and feel free to add case studies of any that are missing.No Comments »
Today, Creative Commons announces the release of its Public Domain Mark, a tool that enables works free of known copyright restrictions to be labeled in a way that allows them to be easily discovered over the Internet. The Public Domain Mark, to be used for marking works already free of copyright, complements Creative Commons’ CC0 public domain dedication, which enables authors to relinquish their rights prior to the expiration of copyright.
“The Public Domain Mark is a further step on the path towards making the promise of a digital public domain a reality,” said Michael Carroll, a founding board member of Creative Commons and a law professor at American University.
Europeana—Europe’s digital library, museum and archive—is the first major adopter of the Public Domain Mark. Europeana estimates that by mid-2011, the Public Domain Mark will be used in connection with millions of out-of-copyright works made available through its portal.
“An important part of our mandate is to ensure that digitized works made available through Europeana are properly labeled with rights information, including when a work is free of known copyright restrictions so that teachers, students and others can freely use it in their work, changing it and remixing it as they wish,” noted Jill Cousins, Executive Director of Europeana.
The Public Domain Mark in its current form is intended for use with works that are free of known copyright around the world, primarily old works that are beyond the reach of copyright in all jurisdictions. We have already started mapping the next phases of our public domain work, which will look at ways to identify and mark works that are in the public domain in a limited number of countries.
A final note about design. We took this opportunity to revise the CC0 deed, to align it more closely with the Public Domain Mark deed. We think the design changes will help everyone recognize the difference between our licenses, which apply to works restricted by copyright, and our public domain tools.
For more information, read the full press release.14 Comments »
Almost 1½ years have passed since we launched CC0 v1.0, our public domain waiver that allows rights holders to place a work as nearly as possible into the public domain, worldwide, prior to the expiration of copyright. CC0 has proven a valuable tool for governments, scientists, data providers, providers of bibliographic data, and many others throughout world. At the time we published CC0, we made note of a second public domain tool under development — a tool that would make it easy for people to tag and find content already in the public domain.
We are publishing today for comment our new Public Domain Mark, a tool that allows works already in the public domain to be marked and tagged in a way that clearly communicates the work’s PD status, and allows it to be easily discoverable. The PDM is not a legal instrument like CC0 or our licenses — it can only be used to label a work with information about its public domain copyright status, not change a work’s current status under copyright. However, just like CC0 and our licenses, PDM has a metadata-supported deed and is machine readable, allowing works tagged with PDM to be findable on the Internet. (Please note that the example used on the sample deed is purely hypothetical at the moment.)
We are also releasing for public comment general purpose norms — voluntary guidelines or “pleases” that providers and curators of PD materials may request be followed when a PD work they have marked is thereafter used by others. Our PDM deed as well as an upcoming enhanced CC0 deed will support norms in addition to citation metadata, which will allow a user to easily cite the author or provider of the work through copy-paste HTML.
The public comment period will close on Wednesday, August 18th. Why so short? For starters, PDM is not a legal tool in the same sense our licenses and CC0 are legally operative — no legal rights are being surrendered or affected, and there is no accompanying legal code to finesse. Just as importantly, however, we believe that having the mark used soon rather than later will allow early adopters to provide us with invaluable feedback on actual implementations, which will allow us to improve the marking tool in the future.
The primary venue for submitting comments and discussing the tool is the cc-licenses mailing list. We look forward to hearing from you!8 Comments »
Creative Commons Netherlands notes that the site’s copyright policy signals a seriousness about open sharing of public sector information — its default is to remove all copyright restrictions with the CC0 public domain waiver.
Rijksoverheid.nl not only signals a true commitment to openness but also sets a strong example for other governments. Congratulations!No Comments »
Creative Commons has been celebrating Public Domain Day – January 1st – for several years, alongside many others who are similarly passionate about the value of the public domain and the need to prevent its demise. Each year on this day, copyright protection expires for millions of creative works, allowing those works to be used, repurposed and built upon by anyone, without restriction or need for permission.
This year we are excited to witness a growth in the number of organizations and websites dedicated to celebrating and promoting this day. COMMUNIA, the European Thematic Network on the Digital Public Domain and an organization in which Creative Commons is a member, has started a new website devoted to Public Domain Day that includes resources such as public domain calculators, information about countries’ copyright terms, and related information. The “project aims at increasing public awareness of this celebration and educating about the Public Domain concept and its potentialities for spreading culture and knowledge worldwide.”
As well, the Center for the Study of the Public Domain at Duke University has several valuable web pages dedicated to Public Domain Day, including a detailed FAQ. As the site explains, “On the first day of each year, Public Domain Day celebrates the moment when copyrights expire. The films, photos, books and symphonies whose copyright term has finished become “free as the air to common use” (quoting U.S. Supreme Court Justice Louis Brandeis).
As Creative Commons embarks on its 8th year, plans are well underway to increase our focus and effort in the public domain arena. Here are a few highlights of what you can look forward to:
- In 2009, we launched the CC0 waiver, a tool that allows creators to effectively place their works in the public domain through a waiver of all copyright to the extent permitted by law. This coming year, Creative Commons will publish for comment and adoption norms – non binding, community-based guidelines such as how to properly cite the author – to accompany CC0. Look for more information about norms in early Spring.
- As a complement to CC0, which is designed to add content to the public domain, in 2010 we will also be increasing development efforts on our public domain assertion tool. This tool will enable members of the public and organizations such as libraries and museums to mark and tag public domain works available over the Internet. Although long in the development cycle, the demand and desire for such a protocol endures. Look for more information about our development plans soon.
- As always, Creative Commons will continue its public domain work in other fora, such as COMMUNIA WG6 (Mapping the Public Domain).
These initiatives, together with those of many other like-minded organizations and individuals, are critical to the construction and maintenance of the public domain. We hope you will join us in our efforts to build, preserve and make easily accessible this shared cultural resource.
Happy Public Domain Day 2010!No Comments »
Techdirt’s Mike Masnick is perhaps the most prolific blogger on the ill impact of overly restrictive legal regimes, including of course copyright and patents, but also trademark and even employment law (see Noncompete Agreements Are The DRM Of Human Capital) and often on people delivering real value to customers (sad that these are considered “alternative” business models) instead of replying on protectionist legal measures — as blogged here, Masnick’s case study on NIN is an absolute must read/watch — and he hosts awesome guest authors.
So it’s a little disappointing to read Masnick write:
I don’t use any of their licenses, because I don’t necessarily see the point. We’ve declared in the past that the content here is free for anyone to do what they want with it, and thus I feel no need for a Creative Commons license.
The need arises from the reality that sharing without standardized legal tools doesn’t scale. It doesn’t scale socially — if I wasn’t a regular Techdirt reader I wouldn’t know that Masnick had declared Techdirt content is free for anyone and for any purpose (and even now I could only find one such declaration because I remembered that Masnick had written about it in a post that mentioned CC!), nor depending on wording would I know what that meant. It doesn’t scale technically — there’s no way for software such as search engines to recognize ad hoc declarations. It doesn’t scale legally — any community or institution that requires legal certainty (eg due to risk that the community’s work will be suppressed or that the institution will be financially liable) will avoid ad hoc declarations.
It’s no surprise that in the more developed field of free and open source software (which has a 10+ year head start on free culture/open content) anyone who claims that making an ad hoc declaration is good enough and did not release their code under an established license would be laughed at and their code not allowed in other projects, distributions, and repositories, not to mention getting no attention from IBM, Google, Red Hat and thousands of other corporate contributors to and adopters of open source software.
Communities and institutions outside software also require works under established licenses (ie those provided by CC) to scale, e.g., Wikipedia, OpenCourseWare, the Public Library of Science and many, many others. What about individuals and small group efforts? Of course they don’t have to use real legal tools for their content any more than an individual programmer has to share code under an established open source license — that is if they don’t actually want others to “do what they want” with their content or code — because no license means no-understand, no-find, and no-go.
One of Masnick’s best turns is his stylized formula
Connect With Fans (CwF) + Reason To Buy (RtB) = The Business Model ($$$$). As he explains, each part of the formula has many facets — reasonable copyright terms are just one — and as he points out, in a sense copyright is irrelevant, as CwF+RtB would work in the complete absence of copyright. However, as Techdirt points out every day, copyright is in more than full effect, producing all kinds of anti-creative and anti-innovation effects, from labels suing fans, bloggers, startups and anyone else available to heirs suppressing the use of work by long-dead authors. In this environment it seems rather necessary to offer fans the legal certainty of an established public license that grants at least the right to non-commercially share. Anything less seems to betray a lack of respect for fans or, if done unknowingly, is an instance of failed sharing.
Of course one might want to go beyond offering a relatively restrictive license and not rely on copyright at all, giving fans complete freedom with respect to one’s works. As Masnick has noted, CC has developed a legally rigorous tool to do just that, worldwide — CC0 — we hope that he is still considering it.☺
The Techdirt post quoted above is primarily a solid response to another blogger’s post on whether CC is good or bad for copyright policy — a very worthy question. Masnick’s conclusion is good:
Many of the people behind it went through (and are still going through) numerous battles to push back on the excesses of copyright. Creative Commons wasn’t the solution — it was a helpful (and hopefully temporary) oasis in a bleak desert, following numerous well-reasoned, but ultimately futile attempts to push back corporate expansion of copyright. And while I agree that there are problems with shifting the issue to a contractual agreement (and the post highlights some of the many legal problems CC licenses may cause), I think that CC, as a whole, did turn a lot more people onto the some of the problems with copyright law as it stands today. In many ways, CC is an easy way for people to first start to understand the problems of copyright law, in understanding why CC is needed.
From there, many who do understand this have started questioning the larger issues around copyright — and many of those involved with CC have continued to fight that good fight, rather than just assuming that CC is “the answer.” So, in the end, I agree that we should be clear to recognize that Creative Commons and efforts to really rethink copyright are two separate things, but that doesn’t mean that Creative Commons is necessarily bad for copyright policy issues. It has been, and hopefully will continue to be, a real stepping stone to getting more people to recognize these bigger issues. In fact, I’d argue that many of the folks now leading the debate for more reasoned copyright policy in Canada first came to understand these issues via their exposure to Creative Commons’ licenses.
While CC and other voluntary efforts (such as free software and open access) aren’t the solution (if there is such a thing), their contribution goes well beyond serving as stepping stones for thinking about how messed up the copyright environment is. They are simultaneously tools for enabling billions of dollars of collaboration across organization boundaries and unlocking untold social value now and in proving out models that don’t rely on excessive enforcement, changing the facts on the ground in a systemic way that arguably should increase the probability of good outcomes relative to those likely to result from a single-track strategy of merely complaining about the current regime as it worsens.
Copycense, the blogger that Techdirt responds to above, has unrealistic assessments of CC’s ability to “muzzle” the conversation about copyright reform and of the ability of such a conversation to obtain the “best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well”. Copycense is enamored with the current Canadian copyright consultation — it’s worth noting that CC Canada has been around since 2004, that Michael Geist, the most prominent voice for positive reform, is a long time CC user and advocate — one can hardly say CC has muzzled the conversation — and furthermore it isn’t clear the consultation will lead to any good progress. Hopefully good reform will result, and many involved in CC in Canada and elsewhere are also involved in reform efforts (if you read French see the consultation of Olivier Charbonneau, one of the project leads of CC Canada) — but to denigrate voluntary efforts, at least while some rather intractable problems with the ability of concentrated interests to hijack politics remain, is a gigantic missed opportunity at best, and possibly flirting with very bad outcomes.2 Comments »
For the past year, Creative Commons has been working on tools to help increase access to works in the public domain. Often, it is not clear whether a work has entered the public domain or is still covered by copyright protection. This lack of clarity can cause a lot of problems, and Creative Commons is not the only one concerned about the issue.
For example, WIPO (the World Intellectual Property Organization) has begun research on tools for increasing access to the public domain, which relates to what we do at CC in several ways. Part of the WIPO research includes a comparative Scoping Study that will look at different countries’ legislation to see how how the public domain is defined and how public domain works are located. Encouragingly, Severine Dusollier, head of Intellectual Property Rights at Centre de Recherches Informatique et Droit and Creative Commons’ Belgium project lead, is in charge of this study. CC conducted a similar study last year and we’re paying close attention to how our results relate to WIPO’s. (Please note: the CC study is closed; no new input from the form will be accepted.) Part of WIPO’s study reviews private copyright documentation systems, including Creative Commons. Other samples in the study will include traditional collective rights management organizations.
Also of interest to our work at CC is WIPO’s expansion of a previous survey that takes an in-depth look at how deposits work as counterparts to a copyright registration system. One effect of registration, especially with a deposit requirement, is that it helps accrue a central collection location of works. These collections then contain copies of the works as well as relevant information necessary to make a determination of whether or not a work is in the public domain. WIPO’s work with registration and deposit systems is an important step in the quest to identify the contours of the public domain; however, not all copyright-protected work is registered or deposited.
Furthermore, finding information about non-registered or non-deposited works can be very difficult. For this reason, Creative Commons has begun building tools to identify, tag, and increase access to public domain works. Two of these tools, CC0 and the Public Domain Certification Tool, are already in existence and available for your use. A third, the Public Domain Assertion Tool, is on its way.
CC0 allows a copyright owner to waive rights in a work, effectively placing it as close as possible to being in the public domain. Finding works placed in the public domain through the CC0 waiver is easy, because CC0 is machine-readable just like the CC licenses. Our Public Domain Certification Tool can currently be used to indicate that a particular work is already in the public domain. But we are also working on a more robust version of this tool called the Public Domain Assertion tool. This tool will allow anyone to indicate facts about a particular digital instance of a work, giving individuals and institutions a way to participate in making our cultural heritage more user-friendly.
The tool’s output will link to relevant facts and a human-readable deed to assist users in deciding whether a work is in the public domain, and thus available for use without copyright restriction in one or more jurisdictions. For example, U.S. works may be in the pubic domain for any number of reasons but may not be in the public domain world-wide. Diane Peters, CC’s General Counsel, noted that the new tool will “increas[e] the effective size [of the public domain], even if due to copyright extensions works are not naturally added to the public domain.”
So stay tuned for the updates from the future of the public domain!
Aurelia J. Schultz, Google Policy Fellow and Joe Merante, Legal Intern