Could Open Source Software Be Put Into The Public Domain Instead?

There are dozens of free software and open source licences -- many would argue rather too many. Different licenses impose different conditions. For example, the best-known and most widely-used is the GNU General Public License, which is designed to ensure that anyone building on GPL'd software and distributing it should make the modified program available under the same license. Others, such as the BSD license simply require the copyright and license notices to be included with any code that is used. 

On Techdirt.

French National Library Privatizes Public Domain Materials

Copyright is sometimes described as a bargain between two parties: creators and their public. In return for receiving a government-backed monopoly on making copies, creators promise to place their works in the public domain at the end of the copyright term. The problem with that narrative is that time and again, the public is cheated out of what it is due. 

On Techdirt.

Beatles' First Single Enters Public Domain -- In Europe

The Beatles remain the iconic pop group, so news on VVN/Music that their very first single has now entered the public domain is something of a landmark moment in music: 

On Techdirt.

Jazz Pioneer 'Jelly Roll' Morton's Music Finally Free For Re-use In Europe -- A Hundred Years Too Late

A recent Techdirt post reminded us that thanks to its crazy copyright laws, the US won't be seeing anything new in the public domain for many years. But even in those "fortunate" countries that get to use cultural works a mere 70 years after the creator's death, the situation is still pretty absurd. 

On Techdirt.

Royal Society Claims 1671 Copyright On Newton Letter (Copyright Law Born 29 Years Later)

The Royal Society calls itself "a Fellowship of the world's most eminent scientists and... the oldest scientific academy in continuous existence." Its Fellows and Foreign Members have included Isaac Newton, Charles Darwin, Ernest Rutherford, Albert Einstein, Dorothy Hodgkin, Francis Crick, James Watson and Stephen Hawking. 

On Techdirt.

Fighting Back Against Public Domain Erosion By Growing The Commons

There have been a number of stories on Techdirt recently about governments diminishing the public domain - not just by extending copyright for future works, but also by putting works currently in the public domain back under copyright, both in the US and EU. Reversing that trend – by pushing back copyright's term closer to the original 14 years, say – will be challenging, to put it mildly. 

On Techdirt.

Michael Hart (1947 - 2011): Prophet of Abundance

I've never written an obituary before in these pages. Happily, that's because the people who are driving the new wave of openness are relatively young, and still very much alive. Sadly, one of the earliest pioneers, Michael Hart, was somewhat older, and died on Tuesday at the age of just 64.

What makes his death particularly tragic is that his name is probably only vaguely known, even to people familiar with the areas he devoted his life to: free etexts and the public domain. In part, that was because he modest, content with only the barest recognition of his huge achievements. It was also because he was so far ahead of his times that there was an unfortunate disconnect between him and the later generation that built on his trailblazing early work.

On Open Enterprise blog.

British Library Encloses the Public Domain

There's considerable excitement about an announcement from the British Library and Google detailing a wonderful gift to the world:

The British Library and Google today announced a partnership to digitise 250,000 out-of-copyright books from the Library’s collections. Opening up access to one of the greatest collections of books in the world, this demonstrates the Library’s commitment, as stated in its 2020 Vision, to increase access to anyone who wants to do research.

Selected by the British Library and digitised by Google, both organisations will work in partnership over the coming years to deliver this content free through Google Books (http://books.google.co.uk) and the British Library’s website (www.bl.uk). Google will cover all digitisation costs.

Isn't that just swell? Vast quantities of fascinating books in the public domain are being made "available to all", as the press release trumpets:

This project will digitise a huge range of printed books, pamphlets and periodicals dated 1700 to 1870, the period that saw the French and Industrial Revolutions, The Battle of Trafalgar and the Crimean War, the invention of rail travel and of the telegraph, the beginning of UK income tax, and the end of slavery. It will include material in a variety of major European languages, and will focus on books that are not yet freely available in digital form online.

Freely available, too... But, er, exactly *how* freely available?

Once digitised, these unique items will be available for full text search, download and reading through Google Books, as well as being searchable through the Library’s website and stored in perpetuity within the Library’s digital archive.

Fab, and....?

Researchers, students and other users of the Library will be able to view historical items from anywhere in the world as well as copy, share and manipulate text for non-commercial purposes.

But hang on: these are materials that are in the public domain; public domain means that anyone can do anything with them - including commercial applications. So this condition of "non-commercial purposes" means one thing, and one thing only: although the texts themselves are public domain, the digitised texts are not (otherwise it would be impossible to impose the non-commercial clause).

In other words, far from helping to make knowledge freely accessible to all and sundry, the British Library is actually enclosing the knowledge commons that rightfully belongs to humankind as a whole, by claiming a new copyright term for the digitised versions. Call me ungrateful, but that's a gift I can do without.

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Jauchzet: Bach's Organ Music Free Online

A few months ago, Musopen ran a fundraiser on Kickstarter:

Musopen is a non-profit dedicated to providing copyright free music content: music recordings, sheet music and a music textbook. This project will use your donations to purchase and release music to the public domain. Right now, if you were to buy a CD of Beethoven's 9th symphony, you would not be legally allowed to do anything but listen to it. You wouldn't be able to share it, upload it, or use it as a soundtrack to your indie film- yet Beethoven has been dead for 183 years and his music is no longer copyrighted. There is a lifetime of music out there, legally in the public domain, but it has yet to be recorded and released to the public.

This is such an eminently sensible idea: releasing music into the public domain that all can use as they wish. I don't think this other project is public domain (anyone know?), but it's still a nice gesture:

Free downloads of the complete organ works of Johann Sebastian Bach, recorded by Dr. James Kibbie on original baroque organs in Germany, are offered on this site.

Here's where the money's coming from:

This project is sponsored by the University of Michigan School of Music, Theatre & Dance with generous support from Dr. Barbara Furin Sloat in honor of J. Barry Sloat. Additional support has been provided by the Office of Vice-President for Research, the University of Michigan.

It's another model that would be good to see utilised elsewhere, ideally with the results being put into the public domain. (Via @ulyssestone, @alexrossmusic)

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How They Stole the Public Domain

Part of the quid pro quo of copyright is that works are supposed to enter the public domain after a limited period of monopoly protection. Trouble is, the copyright maximalists and their friends in power have managed to keep jacking up that period, meaning that more and more of our cultural heritage is locked away for decades, released only long after the death of the author.

Rufus Pollock has now quantified how much we are losing:

if copyright had stayed at its Statute of Anne level, 52% of the books available today would in the public domain compared to an actual level of 19%. That’s around 600,000 additional items that would be in the public domain including works like Virginia Woolf’s (d. 1941) the Waves, Salinger’s Catcher in the Rye (pub. 1951) and Marquez’s Chronicle of a Death Foretold (pub. 1981).

For comparison, in 1795 78% of all extant works were in the public domain. A figure which we’d be close to having if copyright was a simple 15 years (in that case the public domain would be a substantial 75%).

Imagine what today's artists could have done with free access to all those works: it's not just the past's creativity that's been stolen, but the present's too.

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Jewel in the Open Content Crown Needs Help

Far too few people know about LibriVox:

LibriVox volunteers record chapters of books in the public domain and release the audio files back onto the net. Our goal is to make all public domain books available as free audio books.

Think about that: turning all public domain books into free audio books. That would be a wonderful resource, and not just for the visually impaired, for whom it is a tremendous boon.

But as is often the case, this fine project is put together by volunteers, with no funding, and that's now a problem:

For four-and-a-half years, LibriVox volunteers have been making audiobooks for the world to enjoy, and giving them away for free. We’ve made thousands of free audiobooks that have been downloaded by millions of people; our site gets 400,000 visitors every month. To date, all our costs have been borne by a few individuals, with some generous donations from partners. However, these costs have become too big.

All they need is $20,000 - a paltry sum for such an incomparably rich holding. Please use the "Donate Now" button on their site to give to them so that they can continue to give to us immeasurably more.

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Recalibrating Intellectual Monopolies

For the last half-century or so, there has been an implicit acceptance that the more intellectual monopolies we have, the better (even if it's not framed in those terms, but of the cuddlier "intellectual property" lie.) Many of us are rebelling against that framing, and at last there seems to be some shift in perceptions. Here are two recent signs of hope.

First, we have a submission from Brazil to the World Intellectual Property Organization (WIPO) on the subject of of exceptions and limitations to patent rights, which contains the following remarkable passage:

The naïve assumption that providing IP title holders with stronger rights will, by itself, foster innovation or attract investments is no longer acceptable. The open and global economy has rejected this assumption and severely hit the very essence of the patent system, whereby a country would confer an artificial and temporary “monopoly” for the inventor in exchange of having the invention revealed allegedly benefiting the society. No such thing is currently taking place, with a few countries excepted. What, then, does a Member State get out of being part of WIPO? If contributing to the welfare of the society does not constitute a major aspect of what a country could get out of being part of a member-driven UN Organization such as WIPO, what could it possibly be?

Good question there, Brazil.

Meanwhile, in the world of copyright, we have The Public Domain Manifesto. This is a long and rich document that is worth reading in its entirety. Here's a taster:

The public domain, as we understand it, is the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection, either because it is free from any copyright protection or because the right holders have decided to remove these barriers. It is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The Public Domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction - close to zero - and that all members of society can build upon it. Having a healthy and thriving Public Domain is essential to the social and economic well-being of our societies. The Public Domain plays a capital role in the fields of education, science, cultural heritage and public sector information. A healthy and thriving Public Domain is one of the prerequisites for ensuring that the principles of Article 27 (1) of the Universal Declaration of Human Rights ('Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.') can be enjoyed by everyone around the world.

At the heart of the manifesto are the following simple, and yet sadly radical ideas:

1. The Public Domain is the rule, copyright protection is the exception. Since copyright protection is granted only with respect to original forms of expression, the vast majority of data, information and ideas produced worldwide at any given time belongs to the Public Domain. In addition to information that is not eligible for protection, the Public Domain is enlarged every year by works whose term of protection expires. The combined application of the requirements for protection and the limited duration of the copyright protection contribute to the wealth of the Public Domain so as to ensure access to our shared culture and knowledge.

2. Copyright protection should last only as long as necessary to achieve a reasonable compromise between protecting and rewarding the author for his intellectual labour and safeguarding the public interest in the dissemination of culture and knowledge. From neither the perspective of the author nor the general public do any valid arguments exist (whether historical, economic, social or otherwise) in support of an exceedingly long term of copyright protection. While the author should be able to reap the fruits of his intellectual labour, the general public should not be deprived for an overly long period of time of the benefits of freely using those works.

3. What is in the Public Domain must remain in the Public Domain. Exclusive control over Public Domain works must not be reestablished by claiming exclusive rights in technical reproductions of the works, or using technical protection measures to limit access to technical reproductions of such works.

4. The lawful user of a digital copy of a Public Domain work should be free to (re-)use, copy and modify such work. The Public Domain status of a work does not necessarily mean that it must be made accessible to the public. The owners of physical works that are in the Public Domain are free to restrict access to such works. However once access to a work has been granted then there ought not be legal restrictions on the re-use, modification or reproduction of these works.

5. Contracts or technical protection measures that restrict access to and re-use of Public Domain works must not be enforced. The Public Domain status of a work guarantees the right to re-use, modify and reproduce. This also includes user prerogatives arising from exceptions and limitations, fair use and fair dealing, ensuring that these cannot be limited by contractual or technological means.

"The Public Domain is the rule, copyright protection is the exception": sounds like a good encapsulation to me - let's start spreading it.

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Defending the Digitised Public Domain

The European Commission has published a review of the Europeana digital library (remember that?). There's one critically important section, which touches on the hot issue of digitising public domain content:

Much of the material accessible in digital format through Europeana is in the public domain; this means it is not or no longer covered by copyright and can in principle be accessed and used by all. This material is an important source of re-use by citizens and companies alike and a driver of creativity in the internet age. For this reason, the Commission has underlined the need to keep "public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet".

In practice this is not always the case. While some of the cultural institutions explicitly indicate that the material they bring into Europeana is in the public domain, others claim rights on the digitised copies and/or charge for downloads. A few institutions apply watermarks and, in one case, viewing the material in a reasonable size is subject to payment. The different practices reflect the wide range of approaches across the EU, which are sometimes dictated by increasing pressure on cultural institutions to raise direct income from the assets they hold. Requiring payment for digitised public domain works also reflects the fact that digitisation has a cost. At the same time it seriously limits the cultural and economic potential of the material.

From a legal point of view the question is whether digitisation in itself creates new rights. Normally this would not be the case. However, the level of originality needed for the creation of copyright is not harmonised at European level, so the answer to the question may differ from one Member State to another.8 It may also vary for different types of digitisation (for example the scanning of books is not the same as costly 3D rendering of objects).

The issue of principle is whether it is acceptable to lock up public domain material that has been digitised with public money by public institutions instead of turning it into a pervasive asset for the information society. The latter approach is in line with the Community policy on the re-use of public sector information, as well as the OECD Ministerial Recommendation on Enhanced Access and More Effective Use of Public Sector Information.9 This issue is essential for the functioning of Europeana, since in its conditions of use the site follows the policies of the contributing institutions.

Similar issues arise when public institutions grant exclusive arrangements to private firms for the digitisation and exploitation of their unique public domain assets in exchange for material advantages. Such arrangements risk locking up public domain content, but in some cases they may be the only way to finance digitisation. This dilemma was expressed by the High Level Group on Digital Libraries in its report on public private partnerships for digitisation. The Group recommended that "public domain content in the analogue world should remain in the public domain in the digital environment. If restrictions to users’ access and use are necessary in order to make the digital content available at all, these restrictions should only apply for a time-limited period."

This is a crucially important issue. At the moment, some publishers are trying to create a new copyright in public domain materials just because they have been digitised. This is not only absurd, but threatens to nullify much of the huge potential of turning analogue knowledge into digital form. The European Commission deserves praise for highlighting this danger: now it needs to do something about it by passing legislation that settles the issue once and for all. (Via At last ... the 1709 Copyright Blog.)

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Letting Go is Hard to Do

A few weeks ago, Leo Babauta published a great post entitled "Feel the Fear and Do It Anyway (or, the Privatization of the English Language)" about yet another idiocy of the intellectual monopolists. Now he has another, winningly-entitled: "The Culture of Sharing: Why Releasing Copyright Will Be the Smartest Thing You Do." Here's the core message:

Last year I Uncopyrighted my blog, Zen Habits, and my ebook, Zen To Done, and it was one of the best things I’ve ever done. People have used my articles in blogs, newsletters, magazines, ebooks, books and more. And yes, they’ve made profits off me without me getting any of that money … but at the same time, I’ve benefitted: my ideas have spread, my name and brand have spread, and my readership has grown and grown. Since I Uncopyrighted the blog, it has grown from about 30K subscribers to 113K.

You can Uncopyright your blog, your ebooks, and even your print books. And I can almost guarantee you: it’ll be the best thing you can do as a writer.

His heart is certainly in the right place; the only problem is that "uncopyrighting" is not as easy as it looks. Although Creative Commons has come out with what it calls cc0 - "no copyright" - I believe that in some jurisdictions it's practically impossible to renounce your rights as a creator (I'd be interested in receiving confirmation or refutation of this point.)

What you *can* do even there (presumably) is to adopt a licence that grants considerable rights to users (like the GNU GPL). But it's worth noting that most of these *depend* on copyright law, rather than denying it completely.

Happy Public Domain Day...

...er, yesterday:

It is January 1st, which means that this morning at midnight a batch more “life-plus” copyrights expired in those countries — most of them — where copyright expires at the end of the Nth year following the death of the author.

Yes, folks, it’s Public Domain Day! And it’s international! There are little Public Domain Day virtual commemorations going on in places like Poland and Switzerland. Spread the word!

In the life+50 universe, which constitute the largest cohort of countries, including Canada, which collectively have the majority of the world’s population, life-plus copyrights expired at midnight for those authors, or last-surviving of multiple authors, who died in 1958.

(Via Michael Hart.)

Why Copyright, O Canada?

Over on the Open Enterprise blog, I have been extolling the virtues of James Boyle's new book, The Public Domain. I still urge you to read it (freely available here), but recognise that not everyone has the time (or energy) to snuggle down with 300 pages of deep meditation on intellectual monopolies.

For those of you who want something a little more, er, oyster-like in terms of slipping down the cognitive gullet, can I also recommend this video from the irrepressible Michael Geist?

Although it's entitled "Why Copyright? Canadian Voices on Copyright Law", and it's largely about the battle to stop Canada making the same mistakes as the US (and Europe) by bringing in its own DMCA, the issues it raises apply around the world. And it's refreshing to hear all the old arguments I and others have been peddling for a while from a fresh bunch of talking heards.

The Elephant in the Library

As I read about the incredible riches of content stored on the Internet, one thing worries me increasingly: who's doing the off-site backups? Too many of the current stores seem to have single points of failure, but nobody's really talking about this serious issue - call it the elephant in the library.

So it's good to hear of new projects that aim to back up content independently of others. Things like HathiTrust:

HathiTrust is a bold idea with big plans.

As a digital repository for the nation’s great research libraries, HathiTrust (pronounced hah-tee) brings together the immense collections of partner institutions.

HathiTrust was conceived as a collaboration of the thirteen universities of the Committee on Institutional Cooperation and the University of California system to establish a repository for these universities to archive and share their digitized collections. Partnership is open to all who share this grand vision.

HathiTrust is a solution.

To prospective partners, HathiTrust offers leadership and reliability.

It provides a no-worry, pain-free solution to archiving vast amounts of digital content. You can rely on the expertise of other librarians and information technologists who understand your needs and who will address the issues of servers, storage, migration, and long-term preservation.

Not all of this content will be freely available to all, although that will be the main emphasis - here's the current stats:

2,123,209 volumes
743,123,150 pages
79 terabytes
25 miles
1,725 tons
335,300 volumes (~16% of total)
in the public domain

Still, it's good to have backups for proprietary content too: if in the coming apocalypse it's lost because the primary stores go down permanently, there's no hope of ever opening it up.

And if you were wondering:

What does the name HathiTrust mean?

Hathi (pronounced hah-tee) is the Hindi word for elephant, an animal highly regarded for its memory, wisdom, and strength. Trust is a core value of research libraries and one of their greatest assets. In combination, the words convey the key benefits researchers can expect from a first-of-its-kind shared digital repository.

Dell Trademarks "Cloud Computing"?

If this is true, it's outrageous:

Dell has applied for a trademark on the term cloud computing. The opposition period has already passed and notice of allowance has been issued. That means that it is very likely that the application will soon receive final approval.

As the posting from Language Log rightly comments:

In other words, this is a pure example of theft from the public domain. Speakers of English have a term, "cloud computing", which the US government is on the verge of privatizing and assigning exclusively to Dell. Other companies providing similar services will not be able to describe what they are doing as "cloud computing" anymore than Nike will be able to describe its shoes as Reeboks.

Shame on you, Michael Dell. Unless the company agrees to make this term generally available, I think it's time we considered a boycott in protest.

Update: Scotched, apparently.

Open Access to Drugs (Data)

Here's an interesting confluence of trends:

The Wellcome Trust has awarded £4.7 million [€5.8 million] to EMBL's European Bioinformatics Institute [EMBL-EBI] to support the transfer of a large collection of information on the properties and activities of drugs and a large set of drug-like small molecules from the publicly listed company Galapagos NV to the public domain. It will be incorporated into the EMBL-EBI's collection of open-access data resources for biomedical research and will be maintained by a newly established team of scientists at the EMBL-EBI.

So here we have commercial drugs data being put into the public domain - no restrictions - and managed by one of the key public databases.

The transfer will empower academia to participate in the first stages of drug discovery for all therapeutic areas, including major diseases of the developing world. In future it could also result in improved prediction of drug side-effects.

Given that the current, capital-intensive method of drug development, which is highly skewed to coming up with drugs for rich, obese Westerners, this openness to all is important: it means that one of the key barriers to discovering new therapies is down, in part, at least.

And as Peter Suber rightly notes:

Kudos to Galapagos and Wellcome Trust not only for opening these data, but for choosing the public domain rather than a license. This fits with Science Commons' latest thinking on barrier-free research and collaboration in the Protocol for Implementing Open Access Data.

Public domain redux....

Putting the Public Domain in the Public Eye

The public domain - that strange, no man's land "owned" by no one - doesn't really get the respect it deserves, partly because there's nobody fighting for it. So this new project to study the public domain in Europe is welcome, particular because of insightful comments like these:

A rich public domain has the potential to stimulate the further development of the information society. The development of the World Wide Web and the ability to digitise almost all text, image, sound and audio-visual material knowledge has resulted in an explosion of the citizen’s ability to store, and more importantly, share access to that information and knowledge. Public domain material has a considerable potential for re-use – both by citizens for information, education and entertainment, and for new creative expressions that build on Europe’ s rich culture.

As well as the public domain itself, the study will also cover material that, although copyright protected, is generally available for all. The study will investigate the various voluntary sharing schemes which copyright holders use to grant broad rights to enable use and re-use of their creations. These include the various flavours of Creative Commons or the GNU Free
Documentation Licence.

Interestingly, there's a strong British representation on the team. (Via Open Access News.)