[Upd-discuss] Creative Work Law for the EU. We have the right to share!

[Andrius Kulikauskas]

Minciu Sodas is a member of the European Union's thematic network 
COMMUNIA for the Public Domain http://www.communia-project.eu  We (and 
all) have the opportunity to provide our ideas for what should be the 
European Union's policy regarding the Public Domain.  I encourage us to 
write and will share our thoughts through the COMMUNIA mailing list and 
at the Barcelona meeting on October 1-2, 2009.

I share below my own thoughts on the policy that I would like to see!
Of course, my letter is in the Public Domain.
Andrius Kulikauskas, Minciu Sodas, http://www.ms.lt, ms@ms.lt

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We Have the Right to Share
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Currently, the laws of the European Union presume that any creative work 
is necessarily protected by copyright and the author must explicitly 
approve all uses. This conflicts with the wishes of people who want to 
share creative work freely in the Public Domain so that all may rely on 
their own best judgement to use it, transform it, incorporate it and 
share it.

We, the people of the European Union, acknowledge a right to share, just 
as we do the right to own. These two rights are related. The purpose of 
ownership is stewardship. The steward of property is recognized as the 
judge of how to apply that property so that it serves the best use of 
all. The steward has the right to transfer their property, to allow some 
or even all to apply their own best judgement. If we have the right to 
own property, then we must also have the right to share it.

By acknowledging the right to own, we acknowledge the wisdom of the 
society of all which acknowledges and defends such a right. Likewise, we 
may entrust our creative works to that same wisdom.

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Creative Work Law
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Creativity is positive. There is no need for laws to restrict it, but 
rather for laws to restrict those who might inhibit it, those who might 
retard the evolution of society. Creative work law (historically known 
as copyright law) is phrased and structured accordingly.

Our right to share is especially relevant for creative works from which 
other works can be derived or copied. Such works are purposeful and 
fruitful when they inspire other such works, when they are social. 
Creative work law does not apply to secret works or private works, but 
to social works. The purpose of creative work law is to encourage the 
creation of fruitful works and social wealth, not fruitless works nor 
private wealth. Creative work law is not meant to encourage the creation 
of single works, but rather, to encourage the creation of all of their 
derived works, and especially, the cultivation of a creative culture.

A culture is shaped by ethics and norms. Norms are implicit, but laws 
are explicit. Laws may support norms, but cannot define them. Creative 
work law is established to nurture a creative culture, including support 
and regard for creators and creations. Creative work law succeeds by 
defining a broad and thriving "grey zone" of "fair use".

The joys of creative work are direct and thus a greater benefit than any 
monetary profit. The best use of a work is informed by this joy more so 
than any other incentive. Creative work law protects, first of all, the 
interests and rights of those who wish to enjoy a work so that it is 
available.

Creative work law honors and presumes people's desire to share. Terms 
for the distribution of creative works presume that people will share 
and provide positive incentives to support and engage such behavior or 
they are void.

Creative work law does not favor those who break the law over those who 
follow the law, nor those who encourage the breaking of the law over 
those who encourage others to follow the law. Similarly, Terms of 
Service do not favor those who ignore them or break them over those who 
follow them. Any such laws and terms are excessive and void.

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The State is the Champion of the Public Domain
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If we don't know otherwise, do we presume that people want to share or 
to own? We presume that people wish to allow reuse unless they make 
evident otherwise. The right to share has priority over the right to own.

The European Union and its member states have the responsibility to 
protect property. The state's protection of property used by a wider 
group has priority over its protection of comparable property used by a 
narrower group. The state's protection of property used by all (and 
especially, the commons) has the highest priority.

The state's responsibility to protect property is greatest for that 
which lacks a defender, protector, caretaker or steward. The state 
promotes stewardship, including individual stewardship, but especially, 
a culture of collective stewardship. The state is the champion and 
steward for a thriving Public Domain.

The state reflects the will of all together to respect the rights of all 
separately. The state accordingly presumes, implicitly, our shared will, 
so that it might respect, explicitly, our distinct wills. The state 
defines an expansive Public Domain so that deliberate individuals may 
benefit from Copyright protection which is focused and effective.

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Public Domain has Priority over Copyright
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The European Union prepares and issues a directive that all member 
countries pass laws and amend constitutions, as needed, so that for 
creative works, the Public Domain has priority over Copyright.

Works are creative in that they transcend the will of the author. Works 
may be partly creative, not entirely transcendent. Authors may restrict 
the use of their work by Copyright only to the extent that their work is 
NOT creative. The lack of creativity is given by the author's style as 
evident in the form of the created work.

Works of God, nature and genius are absolutely creative. They transcend 
style. Anyone may use such works in the Public Domain if they explicitly 
regard them accordingly, free of style.

Works of and by governments are in the Public Domain, as are documents 
of any institutions beholden to the public, the will of all together.

Copyright works must be marked as such, using the copyright sign along 
with the year. Otherwise, they may be considered to be in the Public Domain.

Copyright works must include or be distributed along with a reference to 
where can be found further information on the author of the work and the 
owner of the copyright, the boundaries of the work, the works it derives 
from, the scope of fair use, and how to contact the owner of the 
copyright to request additional use of the work.

Works that derive from the Public Domain must make available, in the 
Public Domain, any works that they build on. Otherwise, they themselves 
may be used as if they were in the Public Domain, and ultimately, they 
fall into the Public Domain.

Creative works may be explicitly placed in the Public Domain.

Creative works can be owned or managed only by human beings, not by 
corporations or any other fictitious persons which by their nature are 
incapable of creating them.

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The Right to Change One's Mind
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Our creativity is how we transcend ourselves. Our creative culture 
depends on our completely voluntary participation and thus accomodates 
any author who wishes, at any time, for any reason, to remove their work 
from the Public Domain.

Commercial works may leverage Public Domain materials but need to be 
prepared to negotiate with authors or stop making use of their works.

The author who changes their mind may inform and require any and all 
owners of copies or derivatives of the work in question to negotiate 
terms of ownership or to remove all traces of the work.

Such owners are not liable for past use of the work, but for future use 
and distribution of the work, responding within a practical timeline.

Creative works, such as orphan works, with no apparent caretaker may be 
presumed to belong to the Public Domain until the creator asserts otherwise.

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Developing Norms and Regulations
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The European Union supports and establishes institutions that develop 
regulations and foster norms for a thriving Public Domain.

Absolute minimum interpretations of "fair use" are established for a 
variety of practical situations, such as any publicly posted text that 
is 140 characters or less.

Absolute maximal interpretations of "fair use" are likewise established.

"Fair use" is defined in the most liberal way unless the creative work 
references it's own explanation of "fair use".

Authors are presumed to grant all requests for expansive "fair use". 
Users who write to authors requesting expansive "fair use" may presume 
their request has been granted until they receive a response otherwise.

The standard for "due diligence" in checking for authors and their 
wishes is proportional to the value of the derived works in question.

Copyright owners of mass consumed works assume that users do abide by an 
honor system and provide them with ways for making payments (or 
micropayments) upon making copies or creating derivative works.

Penalties for abuse of copyright are of the same order of magnitude as 
the claimant's actual losses and the defendant's gains.

Content generated in online venues (mailing lists, wikis, blogs, 
comments) is Public Domain unless each item explicitly states otherwise.

Website Terms of service may not be used to limit the rights of authors 
or users, whether Public Domain, Copyright or "fair use".

Any material made publicly accessible on the Internet, may be freely 
copied and distributed further, in electronic, print or other versions, 
without restriction. Distributors may charge for such distribution as 
long as they do not exclude other distributors.

The terms "commercial use" and "non-commercial use" are clarified so 
that "commercial use" refers simply to selling a creative work.

A procedure exists for querying publishers whether they intend to 
reprint out-of-print works or, alternatively, whether they will allow 
others to do so under standard terms.

A procedure exists for establishing the "authors' wishes" for works 
(like Wikipedia) with no effective author. A procedure exists by which 
such works can thereby be migrated from one license to another or the 
Public Domain.

No license may be designed to be incompatible with the Public Domain. 
("Share alike" licenses must not conflict with the Public Domain.)

Separate laws address damages due to plagiarism and false claims to 
authorship.

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State policy
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The European Union and member states take an active approach to 
fostering the Public Domain as central to public life.

Government funding standards and purchasing standards require that, 
wherever possible, content (such as school textbooks) be in the Public 
Domain.

Government services, requirements, standards (as in education) may not 
require use of particular software but most instead define formats for 
which software can be created.

Governments purchase works so that they enter the Public Domain and/or 
reward authors for works they've place in the Public Domain. This is the 
principal support for the arts and sciences.

Governments may exercise "eminent domain" to purchase works at fair 
market prices and place them in the Public Domain.

Governments prepare registries of Public Domain works built by 
volunteers and reward participants, but especially as a way of 
channeling economic stimulus monies.

Government funds used to bail out private companies such as banks, 
automobile manufacturers, etc. are first used to increase transparency 
and openness and the public wealth, for example, making open source the 
design of cars.

Governments champion worldwide the free flow of ideas and content just 
as they champion the free flow of trade.

Government or insurers allows for insurance for those who use and reuse 
creative works to cover their transgressions.

Anonymous works such as grafitti are defined as folklore in the Public 
Domain.

In order to encourage an economy around the Public Domain, and voluntary 
work, in general: Money paid, in advance, for work to be done in the 
Public Domain, is not considered work for pay, thus free of any related 
taxes, Social Security payments, and other obligations. The payer of the 
money may consider such payments as a business expense if they report 
the amounts and pay a proportional tax.

Given that "wealth is relationships", that wealth is generated by 
including people, and that contributing to the Public Domain and 
"working for free" filter in people who share and invest in the commons: 
The European Union develops a distribution mechanism to stimulate the 
growth of underdeveloped areas, such as the countryside, by issuing 
vouchers (say, 1000 euros each) to those who "work for free" and 
participate in institutions, including government, business, academia, 
to spend freely on those likewise from the target group. Such a system 
will not need reporting or monitoring.

The European Union gives priority to local cultures so that they are not 
dominated by international cultures. A distinction is to be made between 
works in international languages (such as English) and local languages 
(such as Lithuanian) as well as languages that are not official 
languages of the European Union (such as African languages). Works 
published in the European Union in international languages may, without 
restriction or special permission, be translated into the Public Domain 
in local languages and non-European languages.

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Theoretical Foundations
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Creativity is a basic human trait and activity. The European Union 
sponsors dialogue to clarify the theoretical foundations of creative 
work and the practical consequences.

A general theory may consider that a creative work is deliberate and not 
accidental. Deliberateness may be defined as the application of distinct 
parsers, for example, two for fair use, and three for a fully creative 
work. See "The Algebra of Copyright" by Andrius Kulikauskas, 
http://www.ms.lt/en/publishing/TheAlgebraOfCopyright.html

A general theory may define the nature of style. Copyright protection 
applies only to form, and in particular, only to style. Derived works 
for which the style of incorporated works is altered beyond recognition 
do not violate copyright.