In Praise of the Public Domain

I write a lot about licensing here. Indeed, licensing arguably lies at the heart of free software. But there's another important way of looking at things, which is essentially licence-less, as John Wilbanks reminds us:

It is a damn shame that we no longer think of the public domain as an option that is attractive. It’s a sign of the victory of the content holders that the free licensing movements work against that something without a license – something that is truly free, not just just free “as in” – is somehow thought to be worse. We’ve bought into their games if we allow the public domain to be defined as the BSD. The idea of the public domain has been subjected to continuous erosion thanks to both the big content companies and our own movements, to the point where we think freedom only comes in a contract.

The public domain is not contractually constructed. It just is. It cannot be made more free, only less free. And if we start a culture of licensing and enclosing the public domain (stuff that is actually already free, like the human genome) in the name of “freedom” we’re playing a dangerous game.

How true. Which means that those of us in the free software world must be careful that we don't play into the hands of those who want *everything* to be licensed.

Microsoft Slouches Towards Bethlehem

On Open Enterprise blog.

Is Sarko Uxorious?

You can't help wondering whether Sarkozy's chanteuse missus had something to do with this one:

Taking a position contrary to that of the British Government, the French President is to fight for an extension to the 50-year period under which musical recordings are protected by European copyright.

Particularly annoying is this comment:

Mr Sarkozy, who loads his iPod with Hallyday and Elvis for his jogs in the Bois de Boulogne, will make copyright extension a priority for France's six-month turn in the European Union presidency, which starts in July.

Christine Albanel, the Culture Minister, has already asked the European Commission to do the groundwork.

“Today, whole swaths of the recording catalogue of the 1950s and 1960s, representing a significant part of the national pop heritage, are falling progressively into the public domain,” she said.

What this neglects to take into account is the fact that falling into the public domain is a gain for the public - and hence the actual moment when it becomes part of the "national pop heritage" - and that the gain vastly outweighs any minimal effect it has on ageing rockers' royalties. Unfortunately, with this action, as with others (including the "three strikes and you're out" approach to fighting filesharing), Sarkozy shows himself to be an old man - however young his new wife may be.

The Problems of the Public Domain

Here's an interesting exploration of the perils of putting your stuff into the public domain:

Countries with moral rights protections, the right of the artist to be attributed for their work among other elements, often make those rights inalienable, meaning they can not be given away under any circumstance.

Therefore, in these countries attribution rights still rest with the respective authors and these dedications are little more than a promise not to sue if those rights are infringed. That is a promise that can be revoked at any time.

Second, there are some theories that hold that putting a work in the public domain might be seen as a gift and not a legal agreement. If such a gift were found to be an “unenforceable promise”, it could be retracted at a later date.

Third, the posts themselves were not written by attorneys and are very informal in nature. Though Creative Commons has a public domain dedication system, they both chose not to use it. It remains to be seen how these dedications would hold up in court if ever they were challenged.

Finally, the dedications only extend to existing works. The authors reserve the right in the future to reserve some or all rights in newer works. This could be seen as a block on activities such as scraping that are ongoing and automatic.

So while the dedications certainly are intended to forfeit all copyright protections on their work, they do not do so completely because it is impossible to do so.

Copyright law resists the public domain and favors automatic protection. This frustrates many in the field, but it is the nature of the beast.

The whole post is quite long, but it's well worth a read for the interesting perspective it puts on the public domain. (Via P2P Foundation.)

Open Access Data - A Question of Protocol

Something calling itself a “Protocol for Implementing Open Access Data” sounds about as exciting as a list of ingredients for paint. But this memo from the Science Commons is one of the most important documents in this field to date. Its scope is explained in the opening paragraph:

This memo provides information for the Internet community interested in distributing data or databases under an “open access” structure. There are several definitions of “open” and “open access” on the Internet, including the Open Knowledge Definition and the Budapest Declaration on Open Access; the protocol laid out herein is intended to conform to the Open Knowledge Definition and extend the ideas of the Budapest Declaration to data and databases.

Again, that may not sound very exciting, but trying to come up with definitions of “open data” or “open access data” have proved extraordinarily hard, and in the course of the memo we learn why:

3. Principles of open access data
Legal tools for an open access data sharing protocol must be developed with three key principles in mind:
3.1 The protocol must promote legal predictability and certainty.
3.2 The protocol must be easy to use and understand.
3.3 The protocol must impose the lowest possible transaction costs on users.

These principles are motivated by Science Commons’ experience in distributing a database licensing Frequently Asked Questions (FAQ) file. Scientists are uncomfortable applying the FAQ because they find it hard to apply the distinction between what is copyrightable and what is not copyrightable, among other elements. A lack of simplicity restricts usage and as such restricts the open access flow of data. Thus any usage system must both be legally accurate while simultaneously very simple for scientists, reducing or eliminating the need to make the distinction between copyrightable and non-copyrightable elements.

The terms also need to satisfy the norms and expectations of the disciplines providing the database. This makes a single license approach difficult – archaeology data norms for citation will differ from those in physics, and yet again from those in biology, and yet again from those in the cultural or educational spaces. But those norms must be attached in a form that imposes the lowest possible costs on users (now and in the future).

The solution is at once obvious and radical:

4. Implementing the Science Commons Database Protocol for open access data
4.1 Converge on the public domain by waiving all rights based on intellectual property

The conflict between simplicity and legal certainty can be best resolved by a twofold measure: 1) a reconstruction of the public domain and 2) the use of scientific norms to express the wishes of the data provider.

Reconstructing the public domain can be achieved through the use of a legal tool (waiving the relevant rights on data and asserting that the provider makes no claims on the data).

Requesting behavior, such as citation, through norms and terms of use rather than as a legal requirement based on copyright or contracts, allows for different scientific disciplines to develop different norms for citation. This allows for legal certainty without constraining one community to the norms of another.

Thus, to facilitate data integration and open access data sharing, any implementation of this protocol MUST waive all rights necessary for data extraction and re-use (including copyright, sui generis database rights, claims of unfair competition, implied contracts, and other legal rights), and MUST NOT apply any obligations on the user of the data or database such as “copyleft” or “share alike”, or even the legal requirement to provide attribution. Any implementation SHOULD define a non-legally binding set of citation norms in clear, lay-readable language.

The solution is obvious because the public domain is the zero state of copyright (in fact, the new Creative Commons public domain licence is called simply CCZero.) It is radical because previous attempts have tried to build on the evident success of the GNU GPL by taking a kind of copyleft approach: using copyright to limit copyright. But the new protocol explicitly negates the use of both GPL's copyleft and the Creative Commons Sharealike licences because, minimal as they are, they are still too restrictive – even though they are both predicated on maximising sharing.

One knock-on consequence of this is that attribution requirements are out. This is not just a matter of belief or principle, but of practicality:

In a world of database integration and federation, attribution can easily cascade into a burden for scientists if a category error is made. Would a scientist need to attribute 40,000 data depositors in the event of a query across 40,000 data sets? How does this relate to the evolved norms of citation within a discipline, and does the attribution requirement indeed conflict with accepted norms in some disciplines? Indeed, failing to give attribution to all 40,000 sources could be the basis for a copyright infringement suit at worst, and at best, imposes a significant transaction cost on the scientist using the data.

It is this pragmatism, rooted in how science actually works, that makes the current protocol particularly important: it might actually be useful. It's also significant that it plugs in to previously existing work in related fields. For example, as the accompanying blog post explains:

We are also pleased to announce that the Open Knowledge Foundation has certified the Protocol as conforming to the Open Knowledge Definition. We think it’s important to avoid legal fragmentation at the early stages, and that one way to avoid that fragmentation is to work with the existing thought leaders like the OKF.

Moreover, the protocol has already been applied in drawing up another important text, the Open Data Commons Public Domain Dedication & Licence:

The Open Data Commons Public Domain Dedication & Licence is a document intended to allow you to freely share, modify, and use this work for any purpose and without any restrictions. This licence is intended for use on databases or their contents (”data”), either together or individually.

Many databases are covered by copyright. Some jurisdictions, mainly in Europe, have specific special rights that cover databases called the “sui generis” database right. Both of these sets of rights, as well as other legal rights used to protect databases and data, can create uncertainty or practical difficulty for those wishing to share databases and their underlying data but retain a limited amount of rights under a “some rights reserved” approach to licensing. As a result, this waiver and licence tries to the fullest extent possible to eliminate or fully license any rights that cover this database and data.

Again, however dry and legalistic this stuff may seem it's not: we're talking about the rigorous foundations of new kinds of sharing - and we all know how important and powerful that can be.

Update: John Wilbanks has pointed me to his post about the winnowing process that led to this protocol - fascinating stuff.

Public Domain Search

One of the big advantages of open content is that there are no problems with indexing it - unlike proprietary stuff, where owners can get unreasonably jumpy at the idea. Public domain materials are the ultimate in openness, and here's a basic search engine for some of them:

major public domain sites were chosen, the most important being the US federal government sites. government:

* .gutenberg.org
* .fed.us
* .gov
* .mil

But there are plenty of exclusions. Also, it's a pity this is only for the US: the public domain is somewhat bigger. (Via Open Access News.)

Communia Communes with the Commons

Hopeful sign, here:

The COMMUNIA Thematic Network wants to place itself as the European point of reference for theoretical analysis and strategic policy discussion of existing and emerging issues to the public domain in the digital environment - as well as related topics including, but not limited, alternative forms of licensing for creative material; open access to scientific publications and research results; management of works whose authors are unknown (i.e. orphan works). The network will cover the whole geographical territory of the European Union as well as neighbouring and accessing countries; it will also build strategic relationships with third countries such as the United States, Brazil, etc, where similar policy discussion on the above topics ongoing.

The COMMUNIA project will base its 3-years long activity on a tight schedule of thematic workshops and conference (respectively, 3 and 1 per year) with the goal to maintain a strong link between all the participants and use face-to-face meetings as a source of material for the analytical and practical work of the project, including the production of a book; an academic journal; a "best practices" guide for European research and reference centres on the topics covered by COMMUNIA; a final strategic report containing policy guidelines that will help all the stakeholders - public and private, from the local to the European level - tacking the issues that the existence of a digital public domain have raised and will undoubtedly continue to raise.

The price? A million European bendy ones - and cheap at the price. (Via Creative Commons.)

IBM Makes Good on Patent Bloop

Not something you see everyday - yet:

IBM has put into the public domain and withdrawn its application for patent number US2007/0162321 - Outsourcing of Services. This patent application covers analyzing work flows, skills, economic costs, etc. Here’s why we are withdrawing it — IBM adopted a new policy a year ago to sharply reduce business method patent filings and instead stress significant technical content in its patents. Even though the patent application in question was filed eight months before the policy took effect in September, 2006, had the policy been in place at the time, IBM would not have filed the application. We’re glad the community pointed this application out so IBM could take swift action.

WIPO Takes Baby Steps Towards the Light

I've noted before that WIPO needs to change to reflect the new realities of sharing content, and not just the sclerotic view of the old intellectual monopolies. There's been a few encouraging signs that WIPO is beginning to understand this, and here's another:

The World Intellectual Property Organization wants to educate you about copyright. Well, not so much you as your 9 to 14-year old children, who are the targets of a new 72-page workbook (PDF) filled with "colorful examples" of copyright law in action. The most surprising thing about the booklet? The fact that it devotes eight pages to coverage of the public domain and other limitations on copyright.

Not So Au Courant

This piece from The Courant is like the coelacanth: not very pretty, but fascinating for its atavistic traits:

Unlike copyright-protected software, such as Microsoft's Windows, open source software is available either as a free public-domain offering or under a nominal licensing fee.

Well, no. To be strictly open source, software must have an OSI-approved licence. Such licences generally (always?) depend on copyright law for their enforcement. So, by definition, open source software uses copyright as much as Microsoft's Windows, just for different ends.

This was a common confusion when free software started appearing in the mainstream, but it's quite surprising to see it popping up nowadays.

A Public Enquiry into the Public Domain

The public domain is a vastly underappreciated resource - which probably explains why there have been so many successful assaults on it in recent years through copyright, patent and trademark extensions. But now, it seems, people are starting to wake up to its central importance for the digital world:

The new tools of the information society make that public domain material has a considerable potential for re-use - by citizens or for new creative expressions (e.g. documentaries, services for tourism, learning material). It contains published works, such as literary or artistic works, music and audiovisual material for which copyright has expired, material that has been assigned to the public domain by the right holders or by law, mathematical methods, algorithms, methods of presenting information and raw data, such as facts and numbers. A rich public domain has, logically, the potential to stimulate the further development of the information society. It would provide creators – e.g. documentary makers, musicians, multimedia producers, but also schoolchildren doing a Web project – with raw material that they can build on and experiment with, without high transaction or other costs. This is particularly important in the digital context, where the integration of existing material has become much easier.

Although there is some evidence of its importance, there has been no systematic attempt to map or measure its social and economic impact. This is a problem when addressing policy issues that build on public domain material (e.g. digital libraries) or that have an impact on the public domain (e.g. discussions on intellectual property instruments) in the digital age.

The European Union aims to remedy this lack with a study:

Call for tender: "Assessment of the Economic and Social impact of the Public Domain in the Information Society" was published today in the Supplement to the Official Journal of the European Union 2007/S 151-187363. The envisaged purpose of the assessment is to analyse the economic and social impact of the public domain and to gauge its potential to contribute for the benefit of the citizens and the economy.

Google's Choice of Hercules

Further to yesterday's post about a call to respect free use of copyrighted material, here's an interesting point about Google's participation:

it certainly seems ironic that Google is being associated with this complaint, at the same time as they are putting putting highly misleading notices on scanned public domain works:

The Google notice, found as page 1 on downloadable PDFs of public domain works available via Google Book Search, "asks" users to:

Make non-commercial use of the files. We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes...

Maintain attribution The Google “watermark” you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it.

There is clear U.S. precedent that scanning a public domain work does not create a new copyright so there seems to be absolutely zero legal basis for restricting use or forcing users to preserve inserted per-page watermarks-cum-advertisements.

So, which side are you on, Google? (Via Michael Hart.)

Google Books Open Up - A Bit

One of the problems with the otherwise laudable Google Book Project is that it's not actually providing access to the texts, just adding searchability. That's useful, but not really want we need. And since many of the the books that it is scanning are in the public domain, there seems no reason not to offer full access.

Google seems to have realised this, finally:

I work on a project at Google called Google Accessible Search, which helps promote results that are more accessible to visually impaired users. Building on that work is today's release of accessible public domain works through Google Book Search. It's opening up hundreds of thousands of books to people who use adaptive technologies such as speech output, screen readers, and Braille displays.

As this notes, one of the advantages of opening up in this way is that the text may be re-purposed for adaptive technologies. Put another way, texts that remain closed, locked up behind DRM or similar, are largely denied to people who rely on those technologies - another reason why closing up knowledge in this way is ethically wrong.

Cory on the DRM'd BBC

I and many others have written about the pathetic moves by the BBC in terms of adopting Windows DRM, but you've got to give it to Cory, he has a way with words. In particular, he sums up nicely one aspect that I haven't covered here:

They also instructed the BBC to stop making MP3s of public-domain classical music available, because the classical music industry is "precarious." That's smart -- we'll improve the health of the classical music industry by making sure that no one under 35 with an iPod can listen to it. Nice one, Trustees.

Couldn't have put it better myself. And, in fact, I didn't.

Update: Nice piece by Bobby in the Guardian, too: good to see the rage is spreading. Shame on you, BBC.

Real Openness, Real Guts

Carl Malamud is one of the original digital pioneers, probably best-known for founding Internet Multicasting Service and Internet Talk Radio. But as well as the technology, he also has the moral side covered too.

Try reading this astonshing letter to the head of C-SPAN, following discussions about fair use of its recordings. It concludes with the following bold offer:

C-SPAN is a publicly-supported charity. Your only shareholders are the American public. Your donors received considerable tax relief in making donations to you. You and your staff were well paid for your excellent work. Congressional hearings are of strikingly important public value, and aggressive moves to prevent any fair use of the material is double-dipping on your part. For C-SPAN and for the American public record, the right thing to do is to release all of that material back into the public domain where it belongs.

I thus write to you today with a specific request and a notice:

1. Your inventory shows 6,251 videos of congressional hearings for sale in the C-SPAN store at an average price of $169.50, for a total retail value of approximately $1,059,544. I am offering today to purchase this collection of discs from you for the purpose of ripping and posting on the Internet in a nonproprietary format for reuse by anybody. I understand your store would take a while to process such an order and am willing to place it in stages.
2. I have purchased Disc 192720-1 from the C-SPAN store, ripped more than one minute of video from the disc, and used it for the creation of a news and satirical commentary of compelling public interest and then posted the resulting work at the Internet Archive. I did not ask C-SPAN for a license and I assert fair use of this material.

Mr. Lamb, C-SPAN has been a pioneer in promoting a more open government. You created a grand bargain with the Cable Industry and the U.S. Congress. When I created the first radio station on the Internet and was asked why I did so as a non-profit instead of going for the gold like many of my colleagues, my reply has always been that I was inspired by your example.

Your grand bargain has served the American people and the C-SPAN organization well. Holding congressional hearings hostage is not in keeping with your charter, and it is not in keeping with the spirit of that grand bargain you made with the American people. Please re-release this material back into the public domain where it came from so that it will continue to make our public civic life richer.

Sincerely yours,

Carl Malamud

(Via Jon Udell.)

Hope for WIPO?

OK, I admit it: I've been a teensy bit negative about WIPO in the past. In part, this was because I thought there was precious little hope it would ever change substantively. Looks like I was wrong:

The agreement on dozens of WIPO reforms was broader and more substantive than had been anticipated. Some of the measures signal important changes in this controversial UN body. WIPO members agreed to "consider the preservation of the public domain within WIPO's normative processes and deepen the analysis of the implication and benefits of a rich and accessible public domain." WIPO agreed to "promote measures that will help countries deal with IP related anticompetitive practices." "Norm-setting activities shall . . . take into account different levels of development" and "take into consideration a balance between costs and benefits." WIPO adopted an expanded mandate to undertake studies to assess the economic, social and cultural impact of intellectual property practices and norm setting activities. All of this signals a new tone and approach for WIPO. In a sense, WIPO is finally entering the new century, and responding to the growing demand for reforms, and a more balanced approach to intellectual property protection.

Public Domain Day

An interesting list of works that have come into the public domain this year - in some places, depending on how idiotic the term of copyright is (50 years after death, 70 years etc.).

Bad to see the UK doing so badly:

Even more sadly, in the United Kingdom, where millions of pages of archival documents on Canada and other former British possessions are held, not one will be public domain, no matter how old it is or when its author (if known) died, until January 1, 2039.

"Only" 32 years to go.... (Via Michael Geist's Blog.)

Let My Music Go

There is a mini-disaster looming in the UK: the music industry wants to extend the term of copyright for sound recordings. It would be bad enough if they did this for the future, but the danger is that it might be applied retrospectively, taking music currently in the public domain, and locking it up for another couple of generations.

This is scandalously greedy, since extending copyrights will rarely benefit the original creators of the music: it is the music labels that usually own the copyrights. And it certainly won't encourage groups like the Beatles to write more classics, for the simple reason that they can't - a clear demonstration of the specious logic generally used to justify the copyright extension, that it will encourage more creativity.

Though the gains may be marginal and misplaced, the losses will be real and general. To fight this iniquitous situation, there's a new campaign: it's called Release The Music. If you want to find out about the copyright issues there's more on the site.

They say that a gentleman only supports lost causes, and so I urge you to support what is almost certainly a no-hoper given the current political climate and the influence the record industry wields. (Via Lessig's Blog.)

Open Prosthetics

Here's a fascinating project: Open Prosthetics. It's exactly what it says, free designs for prosthetics, although the exact licensing isn't entirely clear (anyone?). The back-story is told in Wired. (Via BoingBoing.)

Open Source Audio Books

A nice piece in the New York Times about audio books based on public domain titles. Two points are worth noting. One is the following comment:

While some listeners object to the wide variety of recording quality, Mr. McGuire said, "our take on it is if you think a recording is done badly, then please do one and we’ll post it as well."

Which is classic open source stuff: don't like something? - do it better, mate.

The other point is that these audio books are truly open: since the source code (text) is public domain, anybody could alter it, and then record the variant. Probably best to start with a short text, but it could be an interesting experiment.