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Originally written as an introduction to copyright and open content models, for the Copy the Rights! seminar, February 2003, organized by V2_, Institute for the Unstable Media. Copyright, open content and remix culturesCopyright was originally conceived as a means to stimulate the creation of artistic and cultural artifacts, by safeguarding the income of creators of original works. The first copyright regulations date back to the seventeenth century, when piracy became a real problem because of the possibility to (re)print books easily and cheaply. In many countries, the first real national Copyright Acts or copyright legislation became active in the second decade of the twentieth Century. These laws protect the rights’ holders of literary, scientific and/or artistic works against the unauthorized reproduction and dissemination of their work. Additional laws also protect performing artists, broadcasters, filmmakers and producers of audio works. Increasingly, international copyright treaties are attempting to bring more uniformity into the diverse national copyright laws. The Berne Convention (1886, numerous amendments and updates) has been of utmost importance there. In October 2002, more than 150 countries have signed this treaty that regulates a number of international agreements on copyright. It stipulates, among many other things, that no registration, declaration (such as a ‘copyright notice’) or other formality is needed to claim one’s copyright to a work. For performing artists the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations is of international importance. The 1996 Copyright Treaty and Performances and Phonogram Treaty released by the WIPO (World Intellectual Property Organization) further elaborate on these earlier Conventions. European legislation strives for uniformity between all member states and for laws that are in accordance with the worldwide WIPO treaties. In Dutch copyright legislation, a work subject to copyright must bear the following characteristics:
The person who actually makes the work is its legal creator. Exceptions are possible when a work is created by a company’s or institution’s employee; in that case the company or institution is the legal creator. Works created as a result of freelance contracts are copyrighted to their original makers; when republishing the work, its commissioner has to ask for permission. The work may be used only once for its original purpose. Because of this, magazines are allowed to publish commissioned articles once and have to ask for permission before publishing them next time. Dutch legislation stipulates that copyright on a work expires 70 years after the death of its author. The continuous extension of this copyright term is an international phenomenon — in the Netherlands, the previous term was only 50 years. After the end of the copyright term, the work falls into the public domain and can be used by anyone. Consequences of technological developmentsUntil the beginning of the 1990s, successive technical developments — film, radio, TV, photocopiers, video and audio recorders, computer hardware and software — have made it much easier to copy content than used to be the case when the first copyright laws were voted at the end of the 19th and the beginning of the twentieth century. Yet, until the 1990s the fundamental system of copyright was not affected by these evolutions. But in the meanwhile a few new types of ‘work’ were born, like software and databases: technically oriented information products that needed copyright protection as well. In 1999, the Dutch Database Law became effective, which offers copyright protection for collections of information. For software, specific regulations have been integrated into the original 1912 copyright law. Internationally, the situation is quite different — the WIPO has not yet adopted any database treaty and software patents trigger a vivid discussion and meet violent opposition from free software advocates. The growing popularity of computer networks, the internet and the world wide web is a much bigger challenge for copyright than all previous technical developments. Copying information that is ‘out there’ on the Net has become a trivial act — witness the success of peer-to-peer filesharing, which illustrates the tension between the importance of financing creators on one hand and the desire for broad dissemination of content on the other. Does existing copyright still make sense in the digital age? From the proponents’ side, research in the field of digital rights management (DRM) — technological protection that prevents copying and redistributing digital works — is ubiquitous; copyright legislation for digital storage media becomes stricter and stricter. Other parties and lobby groups, on the other hand, are beginning to question copyright in a fundamental way. Is it, after all, still realistic to cling to legislation that is very hard to reinforce? Shouldn’t we start looking for alternative economic models for financing authors and creators in general? Furthermore, networked media are the ideal playing ground for remix cultures — for the creation of new content through copy and paste activities, for reappropriating previous works, for citing, mixing, linking and paying homage to others’ achievements. This mode of production is not exactly new — to what extent is any work truly original? — but it has become easier than ever, and probably more widely acknowledged. Are fair use (USA) and moral rights the best legal instruments for regulating this type of cultural production? Alternatives for copyrightIn response to the challenges posed by networked media, alternative models for copyright protection are under development — in the form of contracts and technological measures. The latter (through ‘Digital Rights Management’ or DRM) can be applied via encryption, passwords, electronic watermarking… in order to prevent that non-authorized users would obtain access to certain information. DRM is also designed to enable e-commerce with online content. Such technological systems call for legal protection themselves (e.g. anti-circumvention legislation that forbids hacking DRM systems). Technological protection is not widely used; it often occurs in combination with contracts and licenses. DRM is subject to fundamental criticism because (apart from copyright and contracts) it forms a third layer of protection for information — an overkill situation which is not in accordance with the original function and objectives of copyright anymore; DRM mostly meet the needs of the “middle men” (providers, publishers), not of the authors themselves. The dissemination of culture and knowledge within society — the first original objective of copyright — is not at all stimulated by this development. In an extreme doom scenario, copyright might even be totally abolished by these “private” measures; the same might happen to the public domain. The Open Access movement is a good example of a community where traditional copyright is questioned for pragmatic and ideological reasons. Scientific publishing, which might be considered the first open source movement, has changed a lot during the last three decades. Scientific publishing, once a not-very-lucrative business, has now transformed into an entirely different economic model. An oligopoly of a few large publishing corporations now owns the majority of scientific journals; as a consequence, subscription prices of the most important research journals have become so high that many research libraries, especially in the Third World, can’t afford these anymore. A growing movement of scholars is now actively pursuing an open model of free online publishing, outside the confinements of privatized journal ownership. Open source, open content and the public domain: “Some Rights Reserved”On the internet, the protection of intellectual property through contracts is currently more widespread than technological protection. The textual, interactive nature of this medium is a fertile ground for several types of user licenses; everyone has become acquainted with all kinds of “click-through” contracts. Normally such licenses are legally reinforcable; problems could occur where licenses go further than copyright legislation. In the context of software development, users’ licenses are widespread. So-called ‘open source’ licenses are an interesting phenomenon; the GNU General Public License (GPL) is the most popular example. They are used within ‘free software’ projects where developers are explicitly allowed to build upon the work of their peers. Creative Commons, an initiative launched early 2003, offers a flexible solution that situates itself between traditional copyright and the strict open source licenses. It allows rights owners to specify that their content is ‘Some Rights Reserved’, not ‘All Rights Reserved’. Users can choose and combine a custom-made license, based on three fundamental choices. May the work be reused for commercial purposes? Are derivatives allowed or should the work be reproduced in its original form? Should the work be reproduced under the same conditions? Creative Commons also explicitly refers, and reacts to the ‘remix culture’ phenomenon described above, by offering flexible copyright licenses that emphasize re-use of content, thus offering a more realistic framework for content production. In so-called commons-based peer production (a term coined by Yochai Benkler, describing economic or cultural production by a loose non-hierarchical network of peers), such a type of licensing is most helpful. Further readingFor an overview of the history of copyright from an UK perspective, see http://www.intellectual-property.gov.uk/std/resources/copyright/history.htm World Intellectual Property Organization (WIPO): http://www.wipo.int/
Taking action against software patents: http://www.nosoftwarepatents.com/ Joost Smiers offers arguments for the abolishment of copyright in several of his publications;, a.o. Copyrights: a choice of no-choice for artists and third world countries; the public domain is losing anyway: http://www.constantvzw.com/copy.cult/cjs0.html For more information about the Open Access movement, see (a.o.) several articles and a news blog by Peter Suber: http://www.earlham.edu/~peters/fos/ Overview of open source licenses: http://www.opensource.org/licenses/index.html Lawrence Liang: Guide to Open Content licenses: http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide Creative Commons: http://www.creativecommons.org/ Yochai Benkler, Coase’s Penguin: http://www.benkler.org/CoasesPenguin.html — on commons-based peer production |
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