[Upd-discuss] Ricardo: Public Domain issues for the COMMUNIA meeting

[Andrius Kulikauskas]

Ricardo, Thank you for your very thoughtful comments on the draft of 
European Union policy recommendations at
https://private.communia-project.eu/wiki/index.php/Policy_recommendations
(username: communia_private; password: com9628mu)
I invite more comments before the Barcelona meeting of COMMUNIA on 
October 1-2, 2009.
I share your thoughts more broadly. 

Some great ideas that you have are:
* Having the copyright expiration date be based on the year of copyright 
(which is typically available in the work) rather than the year the 
author died (which is not available).
* Defining "voluntary immediate expiration of copyright" as one way of 
placing one's own works in the Public Domain.
* The idea of a simple protocol is very good.


Notes to Ricardo:
* I don't distinguish between the Public Domain (as we use at our Minciu 
Sodas lab) and "expired copyright Public Domain".
* In practice, as I know at Minciu Sodas, if an author no longer wants 
their work to be in the Public Domain, then there is not much practical 
alternative except for me to honor their request.   Every so often I get 
such a request and usually the solution is: I can delete their letters; 
but I won't delete replies that built on their letters.  That answer 
seems to work naturally in practice.  The law should work likewise - you 
can revoke Public Domain - but your revocation has no effect on existing 
works - but on the other hand, those who you've informed have to stop 
publishing new copies of your work - and so for practical purposes, 
commercially, it solves the problem of inequity by having the commercial 
power  (like a Hollywoood studio) decide whether they want to pay a fair 
price or divorce the contribution from their derived work.  Something 
like that seems to be fair and natural.
* In terms of backward compatibility, I think that it's possible for a 
new law to be phased in by requiring all unmarked works to be marked, 
say, over the course of a year, so that they may stay protected by 
copyright. 
* I think central for a simple protocol is the idea that if a creative 
work is worth copyrighting, then it should include a reference (a link) 
to information about the work (including the metadata, an archive of any 
Public Domain works it builds on, and a way to contact the publisher to 
ask for permission for expanded fair use - with the understanding that 
until they respond to you, you can assume that you've been granted that 
permission.
* I think insurance for "fair use" is good because it can also be a 
vehicle for paying publishers their fair due when sharing occurs.  You 
can pay higher or lower rates for insurance as warranted based on your 
sharing habits.  The money would be used to compensate the publishers 
(think of it as a friendly settling with class of users) rather than to 
pay for fines.

Andrius Kulikauskas, Minciu Sodas, http://www.ms.lt, ms@ms.lt

ricardoolpc wrote:
> Hi Andrius
> you asked for comments/ideas about the Public Domain issues on your 
> worknets page, to prepare for the Communia EU debate.
>
> http://www.worknets.org/wiki.cgi?PublicDomain
>
> I think I read somewhere that strictly-speaking, the term 'Public 
> Domain' is reserved in law for works that have entered the 
> public-domain because their copyright-period has ended. It varies with 
> the type of work. For example, life+70 years. Is that correct.
>
> 1. One side-issue is "How is a user supposed to know when the author 
> died?" There is no public global database. They are being forced to 
> comply with a law, where the data required isn't available. Could it 
> be replaced with a formula or simple rule, such as X years from 
> authoring or first-publication? That means if a user sees Copyright 
> 1947, they have all the information they need.
>
> 2. I found this useful UK government Intellectual Property Office 
> website, that describes the terms Copyright, Public Domain, etc.
>
> http://www.ipo.gov.uk/copy.htm
>
> 3. It mentions that a copyright-holder has copyright/financial rights 
> over their work, and they can sell/transfer/etc their copyright or 
> license it's use on an exclusive or non-exclusive basis (a bit like 
> patents).
>
> It also says, copyright holders of artistic works, films, etc, have 
> 'Moral rights' over their work, so they can object to it being used in 
> an 'improper context'. For example, using your poem in a political 
> magazine, implying support.
>
> http://www.ipo.gov.uk/types/copy/c-ownership/c-creator.htm
>
> It says (fair use, I hope) - "Copyright is, however, a form of 
> property which, like physical property, can be bought or sold, 
> inherited or otherwise transferred, wholly or in part. So, some or all 
> of the economic rights may subsequently belong to someone other than 
> the original creator or first owner. In contrast, the moral rights 
> accorded to authors of literary, dramatic, musical and artistic works 
> and film directors remain with the author or director or pass to his 
> or her heirs on death.  Such moral rights will last as long as 
> copyright lasts provided the creator did not waive his moral rights."
>
> 4. Immediate Expiry of Copyright - For the EU debate, presumably, the 
> EU is looking for simple ways tp draft the laws. Instead of spending 
> years changing thousands of clause in hundreds of EU Country laws, dDo 
> you think it would be a good idea for an (over-riding or amending) EU 
> Law to state "Where copyright legislation gives a copyright holder the 
> rights to a work for a specified term, the copyright-holder may choose 
> to make the copyright-term expiry immediately".
>
> The original-copyright holder should maintain Moral Rights over their 
> work for the normal term, just give up copyright/economic rights 
> (putting the work in the public-domain).
>
> It assumes EU Law has precedence over member-country law.
>
> The EU Law needs to over-ride sentences like the first part of this 
> one from the UK IPO "Such moral rights will last as long as copyright 
> lasts...", so that the immediate expiry of copyright doesn't cause the 
> immediate expiry of Moral Rights.
>
> (the full UK IPO sentence say "Such moral rights will last as long as 
> copyright lasts provided the creator did not waive his moral rights.")
>
> Is there any difference between your concep/understanding of 'Public 
> Domain' and 'Expired copyright public-domain'?
>
> 5. Backward compatibility - You suggested all works should be 
> Public-Domain unless marked as copyright, I think. I'm thinking that 
> may not be backward-compatible, as there are millions of printed pages 
> around that are not marked as copyright. I believe the current law 
> gives the author copyright, without marking or registering copyright. 
> Is that correct?. It would be confusing, having a mix of old unmarked 
> copyright work and new unmarked public-domain work. Someone picking up 
> a piece of paper wouldn't know what the copyright status is, because 
> they don't know when it was written.
>
> 6. I think a lot of the points/debate on your page are focused on the 
> user of a work, and about what the user of a work can do. I think the 
> law-makers are probably more focused on the laws and mechanisms for 
> 'control of usage', the ability of the copyright-holder to give out 
> and take away permission to use work (by means of licenses). You make 
> some good arguments as to why changes are needed and provide 
> motivation, but I imagine law-makers will be more in a frame of mind 
> of "Bring me solutions, not problems".
>
> If your group can come up with some simple, practical changes to the 
> law or mechanisms for implementing it, that may be quite persuasive. 
> Ideally, there should be simple laws that everyone can understand and 
> memorise the gist of, and someone picking up a work, should have all 
> the information they need written-on/embedded-in the work itself, not 
> require internet access to a registered copyright/public-domain 
> works/dates database.
>
> 7. Taking back usage rights - Normaly a PD author would/could not take 
> back rights to use something. An author may put something in the 
> public domain, and people use it and base their income businesses on 
> it. It's important not to wreck their business-plans later. When an 
> author creates something like PD Software and believes it to be 100% 
> their own work, they could say in the EULA "I give the user the right 
> to use MY work without restriction" (not anyone else's). That form of 
> words means that if later on, someone finds that the author has 
> accidentally included a copyright file by someone else (e.g. a 
> graphics library), the users can be informed they can no longer use it 
> without restriction. The users would need a new version not containing 
> the copyright file, or stop using it, or license the use of the 
> graphics file, etc.
>
> 8.  Protecting PD author's from massive lawsuits for accidental 
> copyright infringement is another big issue. We don't want potential 
> authors to be scared off PD publishing by high liability insurance 
> etc, in the same way that people are scared off organising social 
> activities by accident insurance.
>
> That's a few points to think about.
>
> Good luck with your discussions.
>
> Ricardo
>
>  
>
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