Culture vs. Copyright/Chapter 7

by Anatoly Volynets

CHAPTER 7

On Licensing in Cultural Affairs

Now, having made an analysis of three models on the governing of cultural affairs, I feel armed enough to analyze some specific realities. Namely, I want to analyze how licensing works for an author.

A critical issue is: How does an artist make a living? He may earn money in different ways, all of which work well when the artist is famous. Fame is that magic tool that turns an author’s work into money.

Hence, the question is, in fact: How do different licenses help expose an author?

Let us see what we have on the plate.

Possible License Features

Currently, an author may or may not relinquish to the general public some or all legal rights to his work. As a result the work can be used:

• Never (if rights are not relinquished)
• Non-commercially
• With notification to the author
• With attribution only
• Freely

Rights can be simply relinquished or sold to another entity. There are no legally enforced perpetual rights; all rights granted by law are for rather long periods of time.

An additional feature of licenses which has been in place for some time is the licensing of the license text itself. That is, a license itself may indicate whether it can or cannot be used as a foundation to build other licenses.

Effects of License Features

Thanks to the discussions among the first graders, I got a pretty clear understanding of the real effects of the features listed above, which are as follows:

• First, if no rights are relinquished, all the restrictions in the use of a work shrink the market for it, put its author in a totally dependent position, limit the work’s spread, and twist its normal function in culture and society. Furthermore, a work which is restricted from use by other authors is actually excluded from normal cultural development until the restriction is lifted. Although we discuss copyright here, in reality, it does not matter what kind of restrictions are applied to a creative work: censorship or publishing monopoly or patent or other exclusive rights.
• Noncommercial use, if allowed, provides some spread of the work. However, the degree to which it can do so is naturally far smaller than in the case of commercial use.
• The requirement to notify an author of use is just an indirect restriction of use.
• The requirement to only attribute puts no restrictions on the use of a work, provides the most possible exposure and thus furnishes the conditions for the work’s normal cultural function. (NB: Attribution, in my view, is the one and only requirement that must remain forever and be supported by law. It is the natural and unalienable right of an author. Public use without it is unacceptable and is the only real theft which may happen in cultural affairs. Use of a creative work without attribution is neither normal nor fair, regardless of legality or incentives to the author.)
• Unrestricted use of a work provides for possible wide exposure. However, without mandatory attribution, unrestricted use allows a user to omit reference to an author and, in such a case, does not serve the author at all. As mentioned before, an author’s rights can be sold; this is the way the great majority of authors earn money nowadays. However, such sales provide considerable material incentives to only a select few, the selection of whom depends least of all on the brilliance of the

work.

Legalities

No specific law addresses the need for open licenses. So, how would such a license work? Virtually all open licenses are claimed by their developers to be based on copyright law. A rights holder, having been granted them by law, can relinquish some of the rights. In order to do so, he provides a contract to a user. This legal position has some weak points, though:

• Any license based on copyright law lasts as long as the copyright.
• Copyright laws provide different rights in different countries.
• Cultural affairs are not regulated only by copyrights. There are about a dozen related laws, acts, and rulings in the U.S. alone.

Obviously, a license, which is supposed to support the normal existence of a creative work, should somehow adjust to the above limitations. Thus, it is necessary for such a license to be backed through legal means that are included in the actual text of the license itself.

Analysis of Some Open Licenses

The above text provides a logical framework for analyzing licenses that govern cultural affairs. This framework does not address music, songs, or any other specific area, but it does address different fundamental culture-related ssues. This is for at least two reasons. First, arts, sciences, and even engineering, intertwine to such a degree nowadays that it is often hard to distinguish between fields, genres and laws applicable to a single work. Second, we have seen that the nature of creativity is the same in any human activity. Let us see how all the above ideas apply to concrete licenses. All of the following excerpts were retrieved from on-line sources in 2004 and 2005. Basic ideas of the licenses, however, remain the same, so the analysis presented here is valid.

Licence Art Libre or Free Art License

Location: http://www.artlibre.org/licence.php/lalgb.html

Excerpt

“Knowledge and creativity are resources which, to be true to themselves, must remain free (. . .)

This work of art is subject to copyright, and the author, by this license, specifies the extent to which you can copy, distribute and modify it (. . .)

You can freely distribute the copies of these works, modified or not, whatever their medium, wherever you wish, for a fee or for free, if you observe all the following conditions: - attach this license, in its entirety, to the copies or indicate precisely where the license can be found, - specify to the recipient the name of the author of the originals, - specify to the recipient where he will be able to access the originals (original and subsequent). The author of the original may, if he wishes, give you the right to broadcast/distribute the original under the same conditions as the copies (. . .)

This license is subject to French law.”

Comments

The Art Libre License contains the following advantages or features for the normal functioning of a work of art:

• Freedom of use: creative, commercial, and non-commercial
• Mandatory attribution to the author
• Not limited to a specific kind of art
• Automatically applies to derivatives of a work licensed under Art Libre License.
• The license text itself is not copyrighted thus it can be freely used in new licenses in countries where copyright is not automatic.

Limitations embedded in the license are as follows:

• The license legally based on copyright law only.
• If the rights to a work are bought from the author, the Art Libre License becomes invalid (this is not openly stated in the license, however).
• It relies only on French law.
• It does not offer incentives to publishers and sponsors of work and, consequently, limits the author’s incentives.

EFF Open Audio License

Location: http://www.eff.org/IP/Open_licenses/eff_oal.php. (The license text is no longer at this location as of 2013.)

Excerpt

“EFF’s Open Audio License provides a legal tool (. . .) providing freedom and openness to use music and other expressive works in new ways. It allows artists to grant the public permission to copy, distribute, adapt, and publicly perform their works royalty-free as long as credit is given to the creator as the Original Author (. . .)

The aim of this license is to use copyright tools to achieve copyright’s stated objectives of spreading knowledge and culture while preserving incentives for the author (. . .)

Original Author irrevocably and perpetually grants to the public authorization to freely access, copy, distribute, modify, create derivative works from, and publicly perform the work released under this license in any medium or format, provided that Original Author attribution be included with any copies distributed or public performances of the work, as well as any derivative works based on the work, as further described below.

Civil Liberties Unrestricted. Nothing in this license is intended to reduce, limit, or restrict any fair use, the first sale doctrine, or the public side of the copyright bargain under copyright law, or to in any other way limit any rights bestowed under consumer protection or other applicable laws (. . .)”

Comments

The following are some advantages of the license:

• Freedom of use: Although it is not directly expressed within this license, both commercial and noncommercial use of a work is allowed.
• Attribution is mandatory.
• This license is not applicable to a rights holder who is not the author. However, sale of rights is not directly forbidden.
• The license text itself is not copyrighted, thus it can be freely used to build new licenses in countries where copyright is not automatic. This means you cannot base another license upon it in the U.S.
• This license relies not only on copyright laws (country unspecified) but on fair use, first sale, and free speech doctrines. Such legalities can be null and void in countries other than the United States. Freedom of speech is mentioned in the aims of the license, but not openly expressed in the “Terms and Conditions of Use” section. EFF may have been implying this when they stated “or other applicable laws,” but since this is unclear, the support of freedom of speech in this license is in question.
  

The following are limitations of the license:

• It is limited to use in music-related areas only.
• It does not offer incentives to the publishers and sponsors of work and, consequently, limits the author’s incentives.
• There is a contradiction in the terms where the license grants perpetual rights to the public while it can only last as long as the copyright.

GNU General Public License

Location: http://www.gnu.org/licenses/gpl.html

Excerpt

“Copyright © 1989, 1991 Free Software Foundation, Inc.

Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed.

GNU General Public License is intended to guarantee your freedom to share and change free software—to make sure the software is free for all its users (...)

When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish) (...)

We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software (. . .)

Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that re-distributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone’s free use or not licensed at all (. . .)

This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License (. . .)

Activities other than copying, distribution, and modification are not covered by this License; they are outside its scope (. . .) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License (. . .)

Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions (...)

If, as a consequence of a court judgement or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License (...)

If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License (. . .)

This General Public License does not permit incorporating your program in proprietary programs.”

Comments

The following are advantages of the license:

• Freedom of use: Commercial and noncommercial use without notification is directly expressed.
• Mandatory attribution to the author and rights holder translates into incentives for both authors and their sponsors.
• The license automatically applies to virtually all derivatives from GPL-licensed work, which ensures advantages to the public and right holders. The following are the limitations of the license:
• It is limited to software production only.
• It is based primarily on copyright law, although it acknowledges possible interference with other laws, mostly patent laws.
• It does not, in fact, distinguish between an author and his sponsor but legally protects a rights holder. In this respect it follows copyright law entirely.
• The license text is copyrighted itself and thus cannot be freely used to build other licenses.

Open Publication License

Location: http://www.opencontent.org/openpub/

Excerpt

“The Open Publication works may be reproduced and distributed in whole or in part, in any medium physical or electronic, provided that the terms of this license are adhered to, and that this license or an incorporation of it by reference (with any options elected by the author(s) and/or publisher) is displayed in the reproduction (...)

Commercial redistribution of Open Publication-licensed material is permitted (...)

Any publication in standard (paper) book form shall require the citation of the original publisher and author (...)

The copyright to each Open Publication is owned by its author(s) or designee (...)

If any part of this license is found to be unenforceable in any jurisdiction, the remaining portions of the license remain in force (...)

All modified versions of documents covered by this license, including translations, anthologies, compilations and partial documents, must meet the following requirements: 1. The modified version must be labelled as such.

2. The person making the modifications must be identified and the modifications dated.

3. Acknowledgement of the original author and publisher if applicable must be retained according to normal academic citation practices.

4. The location of the original unmodified document must be identified.

5. The original author’s (or authors’) name(s) may not be used to assert or imply endorsement of the resulting document without the original author’s (or authors’) permission.

The author(s) and/or publisher of an Open Publication-licensed document may elect certain options by appending language to the reference to or copy of the license. These options are considered part of the license instance and must be included with the license (or its incorporation by reference) in derived works.

A. To prohibit distribution of substantively modified versions without the explicit permission of the author(s). ‘Substantive modification’ is defined as a change to the semantic content of the document, and excludes mere changes in format or typographical corrections (...)

B. To prohibit any publication of this work or derivative works in whole or in part in standard (paper) book form for commercial purposes is prohibited unless prior permission is obtained from the copyright holder (...)

Open Publication authors who want to include their own license on Open Publication works may do so, as long as their terms are not more restrictive than the Open Publication license.”

Comments

The following are advantages of the license:

• Freedom of use is declared. However, the license places freedom of choice by an author above freedom of use by the public, thus giving authors the right to limit use.
• Attribution to the author is mandatory.
• Reference to the publisher is mandatory. This feature makes the license attractive to publishers and, consequently, more fruitful for authors.
• The license is not limited to a specific area of culture.
• It automatically applies to derivatives.

The following are limitations of the license:

• It may be extended in order to be more restrictive. On the other hand, it can be extended by an author through any unique feature that puts no additional restrictions on the work’s use. Thus, the license allows for extra nonrestrictive features and extra restrictions as well, which is a contradiction.
• It is based on copyright law only.
• It is limited to publication activity only.

Creative Commons (CC) Licenses

Location: http://creativecommons.org/license/.

Excerpt

“Until 1976, creative works were not protected by U.S. copyright law unless their authors took the trouble to publish a copyright notice along with them. Works not affixed with a notice passed into the public domain. Following legislative changes in 1976 and 1988, creative works are now automatically copyrighted. We believe that many people would not choose this ‘copyright by default’ if they had an easy mechanism for turning their work over to the public or exercising some but not all of their legal rights. It is Creative Commons’ goal to help create such a mechanism.

An idea is not diminished when more people use it. Creative Commons aspires to cultivate a commons in which people can feel free to reuse not only ideas, but also words, images, and music without asking permission—because permission has already been granted to everyone (...)

The free software and open source software communities have inspired what is sometimes called ‘open content.’ Some copyright holders have made books, music, and other creative works available under licenses that give anyone permission to copy and make other uses of the works without specific permission or a royalty payment. Creative Commons hopes to build on the work of these pioneers by creating a menu of license provisions that people can combine to make their work available for copying and creative reuses (...)

With a Creative Commons license, people can copy and distribute your work but only on the conditions you specify here. Do you want to:
Require attribution?
Allow commercial uses of your work?
Allow modifications of your work?
Or choose the following:
Public Domain
Sampling
Founders’ Copyright
CC-GNU GPL [Brazil]
CC-GNU LGPL [Brazil]”

Comments

As can be seen, Creative Commons (CC) offers many different licenses to choose from. Those who intend to use a CC-tagged work should learn which exact license is applicable. CC developers put freedom of choice for the copyright holder above all. Such freedom means the liberty to invent and enforce or relinquish all kinds of restrictions. Thus, a CC license may barely differ from copyright on one end of the license spectrum and yet offer ultimate, public domain-like freedom of use on the other. The following are advantages applicable in different combinations to different CC licenses:

• Freedom of use depends on the specific license. The only common feature of all exclusively CC licenses, apparently, is free noncommercial use of a work of art, but this is never directly stated, so it is in question.
• They are not limited to a specific art.
• They expand the legal base internationally.
• Although never expressed directly, it appears as if CC licenses themselves are CC licensed thus, presumably, they can be used to build other licenses.

The following are limitations of the licenses:

• Some of them do not require attribution to an author.
• Some of them do not require reference to a publisher.
• Some of them do not allow creative use of a work, such as modifying, building upon, sampling, performing, etc.
• They are based on copyright law only.
• They do not prevent the sale of rights.
• They are applicable only to the arts.

Public Domain

No entity using a work in the public domain owes anything to anyone in terms of money or attribution. For example, under current law, anyone can rewrite the Star Spangled Banner or the Bible word by word and announce them as his own creation. Such a legal situation seems total nonsense and reveals that the concept of public domain, as it is ingrained in current law, is as twisted as copyright itself. False claim to authorship must not be legal. In my view, it is just another side to the coin that can be called misconception of culture.

Authoright

Location: www.culturedialogue.org/drupal/en/authoright

Excerpt

“The quintessential law of the nature of culture is Ultimate Freedom (...)
Essentially, a work of art is a message to everyone. This is its very nature and driving force (...)
Culture is the only reality where humanity develops (...)
Authoright License should be based on and enforced within the existing law. Any suitable law or contract may be used singularly or in conjunction with another, in order to support Authoright license (...)
Authoright covers the use of any and all cultural phenomena.
Any cultural phenomenon may be freely used by any entity for any known or currently unknown purpose, creative, commercial or non-commercial, without limitations, permissions, control of any kind from any individual, organization, government or international agency, and so forth (...)
Any and all public use of a cultural phenomenon requires attribution, when applicable, to all of the following:

• Author(s)
• Source and its sponsors
• Original source and its sponsors (...)”

Comments

The following are advantages of the license:

• Ultimate freedom of use of a cultural phenomenon—creative, public, commercial, etc.—is allowed.
• Attribution to an author, or authors, if used publicly or commercially is mandatory.
• Attribution to a source and original source, when possible, if used publicly or commercially is mandatory.
• Attribution to the sponsors of the source is mandatory.

The following are limitations of the license:

• The license was designed so that it does not impose any limitations on the normal functioning of cultural phenomena. There is, however, an unresolved issue in the basic idea of the license. This concerns the interpretation of an uthor’s freedom (see the Addendum for a detailed explanation).
• The license is currently in a draft version.