All Rights Reserved to No Rights Reserved:

An Overview of Copyright and Other Licenses

Leslie Danhoff

 

 

 

San Jose State University

LIBR 287-05

Professor Ellyssa Kroski

November 29, 2009
Abstract

The basics of copyright are detailed and confusing to many. The introduction of Creative Commons licenses and GNU Free Documentation Licenses has offered a middle ground between public domain and all rights reserved. As future information professionals, helping our patrons find and use information appropriately is going to be increasingly important with the advancement of digital mediums.

 

All Rights Reserved to No Rights Reserved

As new technologies emerge, what will the fate of current copyright look like? As future library professionals, knowing what is copyright and how it can be used is vital to our dissemination of information. As Doug Johnson (2008) writes, Few subjects spark more disagreement and confusion than copyright. As an information professional, Im often not certain that I have a firm grasp of it. And Im not alone.

What is copyright?

Watson (2006) defines copyright as this: the right to copy. Copyright laws try to keep up with the constantly changing technology that is used to make copies of protected material whether its produced by a mimeograph machine, a photocopier, a computer, or an audio recorder. The history of copyright law has been a battle between authors, disseminators, and consumers for decades. Wu (2006) says, Critics of copyright say that aggressive over-enforcement deters those who would borrow from others to create, such as music samplers, satirists, and filmmakers. Copyright's backers warn, conversely, that piracy threatens the very livelihood of the artist and creative industries.

Copyright law grants authors exclusive control for a limited time over the use of their works[including] the right to reproduce, distribute, adapt, perform, and display a work (Klein, 2009). This limited time ranges from 70 years after the death of the author for personal works, to 95 years after publication date for corporate works (Klein, 2009). After the regulated time passes, the piece goes in the public domain. Once in public domain, also referred to as intellectual property, the work is available for anyone to use without need to ask for permission from the owner.

Copyright protects works that are in a fixed tangible form of expression (U.S. Copyright Office, 2008). But what constitutes tangible? The arrival and explosion of digital mediums has made defining this a bit confusing. The U.S. Copyright Office says that the fixation need not be perceptible so long as it may be communicated with the aid of a machine or device (2008, p. 3). The law does not protect the ideas, rather the way these ideas are expressed.

The role of copyright has needed to evolve with the invention of new technologies. In todays online environment and Digital Age, those protecting intellectual property have had to make changes. Copyrights, trademarks, patents and other legal mechanisms associated with the ownership of ideas (and not things) once had finite terms. Their purpose was to allow creators or owners (not always the same entity) to materially benefit from the work, not to provide perpetual income (Pachter, 2009).

Creative Commons

In a response to the all or nothing protection, Lawrence Lessig created an alternative to the current copyright law. In 2001, Lessig and a board of directors founded a non-profit organization called Creative Commons, to create legal licenses that expanded the options of traditional copyright laws, enabling users to selectively allow use of their works by others (Safford, 2007). It is still copyright, but it gives the creators of the work the ability to let others use it and the creators still get credit; coining the phrase, some rights reserved. Creative Commons has been embraced by many creators who believe that allowing others to build upon the ideas of other creative minds benefits everyone (Safford, 2007).

So what exactly is Creative Commons? Kleinman gives us this explanation of Creative Commons:

Creative Commons is a nonprofit organization that created a set of simple, easy-to- understand copyright licenses. These licenses do two things: They allow creators to share their work easily and they allow everyone to find work that is free to use without permission. The licenses come in three languages: Human Readable, which is a very brief and easy-to-understand summary of what is permitted and under what conditions; Lawyer Readable, which is a legally binding three-page deed; and Machine Readable, which is the metadata, a little snippet of code that makes it possible for search engines like Google to search by Creative Commons license, and return only those works that are free to reuse. (Kleinman, 2008).

The goal of Creative Commons licensing is to put free tools in the hands of authors, scientists, artists and educators, allowing them to create work with the appropriate level of freedom, ranging from full copyright (all rights reserved) to the public domain (no rights reserved) (Yoshida, 2008). The idea is that this is a business tool that actually helps encourage creativity. It may seem paradoxical, but free versions generally serve as promotional tools for paid iterations of the same work. Monty Python, for example, just posted most of their comedy sketches on YouTube and sales of their DVDs have skyrocketed (Pachter, 2009). In an attempt to apply this idea to a real-world product, a group called Superflex opened a store that offered the worlds first open-source-beer (OConnell, 2005). OConnell continues, The recipe and brand are available under a Creative Commons license, which means that anyone can brew the beer, tinker with the ingredients, and distribute it as long as they publish their version of the recipe and give credit to the originators (2005).

Supporters of Creative Commons in mainstream markets includes: Google, Trent Reznor of the band Nine Inch Nails, Wikipedia, and the Obama Administration (Who Uses CC?, n.d.). Google uses Creative Commons in lots of different ways. From Creative Commons searches on the search engine to allowing Picasa users to license their own content, Google utilizes the various licenses throughout their digital services. Trent Reznor released the Nine Inch Nails records, Ghosts I-IV, under a Creative Commons Attribution-NonCommercial-ShareAlike license. While Reznor gave the first disc away for free digitally, NIN sold tiered offerings ranging from a $5 download of the full album to a $300 premium box setNINs next album, The Slip, was released for free under the same license, fueling a sold-out tour. (Who Uses CC?, n.d.). Wikipedia, a project of the Wikimedia Foundation, was using the GNU Free Documentation License until this year, when it opted to switch to a Creative Commons Attribution-ShareAlike license (Wikimedia Foundation, 2009). The Obama Administration utilizes the Creative Commons Attribution Only license for presidential campaign photos in addition to requiring that third-party content posted on Whitehouse.org be made available via CC Attribution Only as well (Who Uses CC?, n.d.).

Full of information to help navigate the various licenses, the Creative Commons website serves as a digital tour guide for intellectual property licenses (Baumann, 2009). Creative Commons offers six main licenses comprised of a combination of four conditions. The four conditions are as follows:

         Attribution: Included in all six of the main licenses, attribution asks others to give you credit for your work.

         Share Alike: Your work can be edited, remixed, or built upon; however, when they decide to redistribute the derivative work they must use the same license as the original work.

         Non-Commercial: Others can use your work as long as it is not for commercial purposes.

         No Derivative Works: Your work can be distributed, performed or displayed but not edited or remixed.

Is Creative Commons the answer to balancing the protection of a creative work and allowing creative freedom? It is a shift in the philosophy of intellectual property rights, actually encouraging the sharing of works for the purpose of creating new pieces. In reference to illegal downloads of digital media, 80% of Internet traffic is peer-to-peer and a significant proportion is illegal. But people are willing to pay and make it legal if it is priced right (M2 Communications, 2009). Of course wanting something for nothing is still going to be an issue, and technology is at the forefront of this school of thought.

GNU Project, Copyleft, & GNU FDL

The GNU Project began in 1984 in an effort to create a free operating system and return to the cooperative roots of the computing community. As the GNU kernel is still being incomplete, it is often paired with the kernel Linux and used by millions (Free Software Foundation, 2008b). The term free does not necessarily mean it has no monetary cost, but is more about freedom of use. In order to be considered free the work must meet all four of the following criteria:

1. You have the freedom to run the program, for any purpose.
2. You have the freedom to modify the program to suit your needs. (To make this freedom effective in practice, you must have access to the source code, since making changes in a program without having the source code is exceedingly difficult.)
3. You have the freedom to redistribute copies, either gratis or for a fee.
4. You have the freedom to distribute modified versions of the program, so that the community can benefit from your improvements. (Free Software Foundation, 2008b)

The goal of the GNU project is to fulfill the previous criteria to optimize free software; the method to prevent GNU software from being turned into proprietary software used is called copyleft. Copyleft uses copyright law, but flips it over to serve the opposite of its usual purpose: instead of a means of privatizing software, it becomes a means of keeping software free (Free Software Foundation, 2008a). According to the GNU website, copyleft gives everyone permission to run, modify, and distribute modified versions, but they are not to add any restrictions. For text, creators use the GNU Free Documentation License; free software needed free manuals. This License is not limited to software manuals; it can be used for any textual work, regardless of subject matter or whether it is published as a printed book. We recommend this License principally for works whose purpose is instruction or reference (Free Software Foundation, 2008a).

Public Domain

Intellectual property that is not protected by copyright, trademark, or patent laws falls into public domain. This means that the public can use these creative works without obtaining permission. How does a piece end up in public domain? There are four common routes to public domain: expiration of copyright, failure to renew copyright, intentionally placed in public domain, no copyright protection available. Most works end up in public domain due to expiration of copyright.

Copyright Infringement

In February of 2007, Stephanie Lenz videotaped her 18-month-old son dancing on the kitchen floor for 29 seconds as the Prince song Let's Go Crazy played on a radio in the background. Lenz wanted her parents to see the hilarious clip, so she uploaded it to YouTube and e-mailed them the link. No big deal, right? Wrong! Universal Music Group, which owns or administers the copyright of the song, fired off a letter to the video-sharing site, demanding that it remove the unauthorized performance of Prince's music. (It did.) What's more, Universal's lawyers let Lenz know that she had engaged in willful copyright infringement--and could be risking a fine of $150,000. (Ante, 2008).

In an effort to protect its property, the media industry has been at the front of the copyright war. In this Internet age, misuse is just a click away (Partridge, 2008). Keep in mind, that

the rights to works created by an independent contractor belong to the contractor, even though she was paid to create the work. This often leads to unexpected results. When a trainer hires an independent photographer to document a training session, for example, the photographer owns the copyright to the photos, even though the photos were paid for by the trainer. The same principle applies to independent contractors hired to develop web sites, create training materials or design logos. (Partridge, 2008)

As future informational professionals we need to know how to avoid committing copyright infringement and be able to inform our patrons about the legal ramifications.

Our Job as Information Professionals

As students, plagiarism is rigorously talked about in regards to academic integrity and moral values. However, plagiarism and copyright do intersect. Copyright infringement should not be confused with plagiarism. The two concepts overlap: Actions that constitute plagiarism may sometimes also be infringement, but not always. Plagiarism is an ethical concept that involves taking credit for something that is not yours. It applies to ideas as well as expressions and depends on context (Partridge, 2008). Verbatim copying is not required. Infringement is not avoided simply by changing around or paraphrasing some of the words. It is sufficient that the challenged work is substantially similar to the protected expression in the original. The question to ask is would the ordinary observer think that the second work was copied or derived from the first? (Partridge, 2008). Learning the difference between copyright infringement and plagiarism is a necessary step, so that we as information professionals can guide others as they gather resources and verify legitimate sources.

Copyright isnt as much of an issue for students working on a research project, as they are entitled use to the resources as long as they are properly cited. Making sure students and teachers have a healthy respect for copyrighted works needs to be emphasized by turning attention to whats permitted rather than on the negative what you cant do aspect of copyright.

We need to let our students and colleagues know that its perfectly legal to use copyrighted materials in research, if theyre properly cited and supplement, rather than supplant, ones own work. The question we should be asking is not What percentage of anothers work did you use? but What percentage of your work is of your own making? We also need to teach others how to understand and apply the principle of fair use, a provision that allows educators to use copyrighted materials under certain conditions without seeking permission from the rights holder. According to the Copyright Act of 1976, educators are sometimes allowed to use copyrighted materials for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. (Johnson, 2008).

Fair use is the copying of copyrighted works for a transformative purpose, i.e. to comment and criticize or to parody, and can be done without permission from the copyright owner. So one could quote a few lines from a book, song, etc and use it to review or critique the work. Keeping these ideas in mind, students and teachers should not be afraid to use copyrighted works. Some say it is better to ask forgiveness than permission, where others argue that erring on the safe side is the best route to go.

When copyright or use warnings are implicitly stated, teachers often disregard uses that fall under the fair-use provision. Most books contain the following warning: All rights reserved. No part of this book may be reproduced, transmitted, or stored in an information retrieval system in any form or by any means, graphic, electronic, or mechanical, including photocopying, taping, and recording, without prior written permission from the publisher. Yet as a researcher and teacher, one has the right to do all of these expressly forbidden things provided that fair-use guidelines are followed. (Johnson, 2008)

We need to know our limits as information professionals as we assist those searching for materials. We also need to allow our patrons to explore these same limits. Johnson (2008) says in regard to educators, It really is better to ask forgiveness than permission. An educators automatic assumption should be: unless its specifically forbidden and legally established in a case law, the use of copyrighted materials should be allowed. He says that this facilitates effective teaching techniques so that educators dont fall into hyper-compliance. Johnson (2008) continues:

We must allow the fair use of copyrighted material in student work, but expect them to be able to articulate why they believe it constitutes fair use. Only when students begin to think about copyright and other intellectual property guidelines from the point of view of the producer as well as the consumer, can they form mature attitudes and act in responsible ways when questions about these issues arise. And as an increasing number of students become content creators, this should be an easier concept to help them grasp.

Helping instruct new, practical stances on copyright is only going to aid the patron and the professional in understanding the complications of copyright. There are many choices when deciding whether to protect or distribute intellectual property. These choices range from traditional ideals to new and open mindsets.

Conclusion

As new mediums continue to emerge, these strides have stretched the current copyright laws and forced the implementation of new laws. In todays cut-and-paste online environment, knowing what isnt copyrighted is just as important as knowing what is (Klein, 2009.) The waters of copyright are vast and seemingly murky. Our job as information professionals is to make sure our patrons are given all the available resources without fear of legal violation. We are also called to be able to determine the validity of sources as we gather new materials for our collections and make recommendations to our patrons. We also have the duty of reminding patrons that digital media is still held under the same regard as print material, it needs to be respected as such.

 

References

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Free Software Foundation, Inc. (2008a). GNU free documentation license. Retrieved October 11, 2009 from http://www.gnu.org/copyleft/fdl.html

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