mfioretti: public domain* + copyright*

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  1. The Authors Guild -- notorious for advancing extremely broad, censorious theories of copyright -- told Lee that the Guild "does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works,If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible." It will be very difficult to sell term extension as a measure to benefit artists if prominent artists' groups are speaking out against it.

    The other factor is that Congress is a total shambles, its calendar dominated by shutdowns and chaotic attempts to ram through the extreme agenda of the GOP electoral majority that represents a numeric minority of Americans, and the chances of any laws getting passed are slim.

    But there's always the possibility that copyright term extension would be slipped into must-pass legislation, a budget or a key appropriation. That's a risky game, given the possibility that this would spark a public uprising to kill it (there's plenty of Conservative animus for the entertainment industry, after all, and the 1998 term extension was counted as a major achievement by Bill Clinton and his acolytes, so this could be painted as greedy, corporate-money-fattened Republicans helping to preserve the hated legacy of the Clintons).
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  2. The No-Derivatives option, frankly, is not very popular. People can tell it’s self-defeating.

    The Share-Alike option, on the other hand, is quite popular. And it’s the one that kept me using CC the longest. Even those of us who are OK with others using our content for commercial purposes find it repellent to think that those others could wall off their derived works from the commons, refusing to pass on the benefit they themselves had received. It’s such a compelling argument that the P2P Foundation is promoting a whole new license to prohibit exactly that. But, as discussed by Dave Wiley more than eight years ago, Share-Alike-licensed content can only be combined with other content with an identical CC license, which is very limiting—and that’s really just a subset of the general compatibility problems with CC-licensed content (updated various times and still complicated). This really defeats the purpose of the commons, as Wiley illustrates with another graphic. As the saying goes, the great thing about standards is that there are so many to choose from.

    In essence, the problem is that Creative Commons allows people to grant others freedom, but with very specific and often mutually exclusive conditions. And that’s only sort of freedom. Does that mean people who use CC are evil, and that I’m boycotting their content? Certainly not. It simply means I find it simplest and most effective to use the public domain (with a fallback to CC0 in jurisdictions that don’t recognize the public domain) to build the commons.

    That leaves the question of free riders, meaning those who would copyright their derived works. At this point, I don’t believe that a further fragmentation of licenses that are complicated to apply and almost impossible to enforce will serve to both build the commons and prevent this problem. Of the two, my priority is the former, but I do still want to keep corporations from strip-mining the commons.

    One way might be to simply ignore them and keep doing our own thing. It’s important to remember that they cannot remove anything from the public domain, nor can they copyright an idea in the public domain itself, only a work derived from it. So, if future iterations of an idea in the public domain are better than those derived works, then the gamble of having produced them will not pay off. Similarly, if small workshops make and sell the products in short runs, not bothering to copyright them, large corporations simply won’t be able to compete. Copyrights take a minimum of three months to register, and that’s enough time for P2P production to move on to something better. In fact, the threat of a copyright might actually spur innovation.

    Another consideration is that corporations creating derived works doesn’t have to result from content being in the public domain or in the commons. They repeat each others’ ideas all the time, in spite of trademarks and copyrights. It’s the idea that attracts attention, not how it’s licensed.
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  3. One of the most exciting things about widespread access to 3D printing is how it has started to push cultural institutions to begin digitizing their 3D collections. Now, in addition to being able to see free high quality 2D scans of paintings like a 15th Century Italian Pentecost and 18th Century Japanese Woodcuts, you can see (and sometimes download, print, and modify) high quality 3D scans of the Cooper Hewitt Mansion, Abraham Lincoln’s face, and Musette the Maltese Dog. With objects reaching back thousands of years scattered across cultural institutions around the world, it isn’t hard to imagine a future where the world’s cultural heritage objects are available to anyone with a 3D printer (or, say, a Shapeways account).

    a question about copyright is lurking in the background of this glorious future. Specifically, a question about copyrights in the scans of the objects themselves: are 3D scans protected by copyright? If the answer is yes, scanning could drag parts of cultural heritage objects away from their home in the public domain and lock them up behind proprietary walls for decades. That would make it much harder for people to access their own cultural heritage.

    Fortunately, at least one court in the United States has found that scanning an object does not create a new copyright in the scan. That means that scanning a 9th century Hanuman mask doesn’t wrap the scan in a new copyright. However, a paper from earlier this year by Thomas Margoni illustrates that the copyright status of scans is not as clear in the European Union. That lack of clarity alone could slow the dissemination of objects housed in Europe’s finest cultural institutions. Hopefully, the EU will move to clarify that 3D scans of objects do not create entirely new layers of copyright protection.
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  4. In 1998, if Congress hadn’t extended copyrights by 20 years, George Gershwin’s Rhapsody in Blue, Hemingway’s The Sun Also Rises and Margaret Mitchell’s Gone with the Wind would all be in the public domain. This year, the comic book characters Superman and Batman would be free to use by anyone. Meanwhile, movies from 1940 – like Charlie Chaplin’s The Great Dictator and John Ford’s The Grapes of Wrath – would have been slated to enter the public domain at the end of 2015.

    Instead, all of these works – and tens of thousands more – remain firmly under copyright at least until 2019. Surely, we’ll see another effort by those in the copyright extension camp to lengthen the term yet again.

    Why does this matter? Well, how would you feel if you needed to obtain a license from a copyright owner in order to read a passage from the Bible to your church group? Or if before you could ride your bicycle you needed a license from descendants of the inventor of the wheel?

    We all take for granted the right to use certain pieces of our cultural heritage, like the Bible.
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  5. n Enclosing the public domain: The restriction of public domain books in a digital environment, a paper in First Monday, researchers from the Victoria University of Wellington document the widespread proactice of putting restrictions on scanned copies of public domain books online.

    They sampled repositories like Google Books, Project Gutenberg, and the Internet Archive, and found about half the public domain books in their sample had some kind of conditions or restrictions on their use, due to uncertainty about whether the books were in the public domain. However, they showed that they could typically determine public domain status in about a minute, and say that the repositories should be following suit.
    Tags: , , by M. Fioretti (2014-07-01)
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  6. report from the Library of Congress's National Film Preservation Board called The Survival of American Silent Feature Films: 1912–1929 PDF » paints a dismal picture of the archival record of silent movies. In all, "14% of the 10,919 silent films released by major studios exist in their original 35mm or other format," although some of the missing items are extant in lesser transfers and foreign editions. But in all, "we have lost 75% of the creative record from the era that brought American movies to the pinnacle of world cinematic achievement in the 20th century."

    It's a sobering reminder of the fragility of even relatively recent media, and the need for preservation. An appreciable slice of the missing archival materials are still in copyright, with attending difficulties in clearing them for the purpose of striking and circulating new prints.
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  7. Free software is built on a paradox. In order to give freedom to users, free software licences use something that takes away freedom – copyright, which is an intellectual monopoly based on limiting people's freedom to share, not enlarging it. That was a brilliant hack when Richard Stallman first came up with it in 1985, with the GNU Emacs General Public Licence, but maybe now it's time to move on.

    There are signs of that happening already. Eighteen months ago, people started noting the decline of copyleft licences in favour of more "permissive" ones like Apache and BSD. More recently, the rise of GitHub has attracted attention, and the fact that increasingly people have stopped specifying licences there (which is somewhat problematic).

    I don't think this declining use of copyleft licences is a sign of failure – on the contrary. As I wrote in my previous column, free software has essentially won, taking over most key computing sectors. Similarly, the move to "permissive" licences has only been possible because of the success of copyleft: the ideas behind collaborative creation and contributing back to a project are now so pervasive that we don't require "strong" copyleft licences to enforce them – it's part of coders' mental DNA.
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  8. The case raises the issue of which elements of the Sherlock Holmes stories are in the public domain, and which may remain under the protection of copyright law. Copyright can sometimes, but not always, protect characters and plot. Recognition of copyright protection for fictional characters goes back to Judge Learned Hand, who suggested that characters might be protected, independent from the plot of a story. He wrote “It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.” So, while a writer cannot secure a monopoly on hard-boiled private eyes, one could protect a finely drawn character like Sam Spade.

    While plots can be protected, stock scenes cannot. The doctrine of scènes à faire excludes from copyright protection scenes that flow from common unprotectable ideas. These would include “thematic concepts or scenes which necessarily follow certain similar plot situations” and ordinary literary incidents and settings which are customary for the genre. Thus, a writer cannot preclude others from using such common devices as a car chase or cattle drive in their stories.
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  9. data, not software, is the heart of today's most successful "software" companies. Peddling bits is yesterday's business model.

    But what about innovation? If developers choose to put their code into the public domain, won't innovation stagnate?

    Please. That's another tired argument from the 20th Century. TechDirt highlights research showing that extending copyrights increases prices and limits dissemination of knowledge, while also pointing out that people who believe patents cause innovation are simply confusing correlation with causation. If anything, patents inhibit innovation.

    This may be one reason that the US and UK, both super strong on intellectual property protection, come in dead last in IT innovation, according to a new report from CA Technologies.

    None of which means that developers or companies need rip off their clothes and mosh to hippie anthems, all while collectively shaking their fists at The Man. It just means that we should start considering public domain as a more efficient way to share code and boost innovation. To the extent that companies feel the need to hold code back under proprietary licenses as a way to encourage customers to pay, fine. But real innovation should happen in the open, and the most open way to do this is the public domain.
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  10. What works were at issue in Golan? As Breyer described, “foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books – books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.” Moreover, many of these were obscure orphan works (works with no locatable rightsholder) that are now effectively off limits to educators, film collectors, community orchestras, and database compilers who previously had the right to use them for free.

    What are the limits on this decision? Could Congress recall the works of Shakespeare, Plato, Mozart and Melville from the public domain, and create new legalized monopolies over them? It is hard to imagine anything more contrary to the First Amendment – would privatizing Shakespeare by government decree abridge freedom of speech? – or to the attitudes of those who penned the Copyright Clause that limits Congress’s power to create new exclusive rights. Yet if one reads Golan, one searches in vain for any limiting principle on Congress’s actions. In this decision, Justice Ginsburg’s majority opinion effectively denies the public domain any meaningful Constitutional protection. Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.
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