Monday, September 11, 2006


Cory Doctorow has an interesting posting on the online version of Locus (a publication dedicated to the science fiction and fantasy publishing world) entitled "How Copyright Broke."

I'm particularly interested in his focus on end users rights, and the extreme lack of understanding of those rights:

No, the realpolitik of unauthorized use is that users are not required to secure permission for uses that the rights holder will never discover. If you put some magazine clippings in your mood book, the magazine publisher will never find out you did so. If you stick a Dilbert cartoon on your office-door, Scott Adams will never know about it.
When it comes to retail customers for information goods --— readers, listeners, watchers -- this whole license abstraction falls flat. No one wants to believe that the book he's brought home is only partly his, and subject to the terms of a license set out on the flyleaf.
But customers understand property -- you bought it, you own it --— and they don't understand copyright. Practically no one understands copyright.
There's no conceivable world in which people are going to tiptoe around the property they've bought and paid for, re-checking their licenses to make sure that they're abiding by the terms of an agreement they doubtless never read.
The answer is simple: treat your readers' property as property. What readers do with their own equipment, as private, noncommercial actors, is not a fit subject for copyright regulation or oversight. The Securities Exchange Commission doesn't impose rules on you when you loan a friend five bucks for lunch. Anti-gambling laws aren't triggered when you bet your kids an ice-cream cone that you'll bicycle home before them. Copyright shouldn't come between an end-user of a creative work and her property. Of course, this approach is made even simpler by the fact that practically every customer for copyrighted works already operates on this assumption.
I'm always interested in what he has to say, given his relationship with Creative Commons, and his release of his own works in digital form under CC licenses. This column doesn't suggest _how_ to change practices, but it's an interesting call-to-arms for authors.

I'm also always glad to read articles that express the distinctions between copyright, trademark, and licenses. I cannot count the number of outrageous beliefs that I have heard espoused by librarians regarding the aggregated set of topics that is usually just referred to as copyright. The most common issues that I run into are a lack of understanding of three topics:
  • The difference between copyright and other rights -- access rights and use rights; and
  • How rights (whether copyright or access or use rights) can be assigned via license that can override the rights assumed under the fair use doctrine; and
  • That a work that is in the public domain (say, a novel from 1890) can have manifestations (like a 1990 print edition) that are copyrighted.
The first is an issue of generating understanding of what restrictions a copyright holder can request of the users of a copyrighted work. This includes requesting limited access (such as limiting access to authorized users), or use restrictions (such as not allowing commercial use without permission).

The second is the assumption that fair use trumps, well, everything. The catch, as I understand it, is that contracts (and a license is a contract) can and do have restrictions in them that disallow uses that we would think of as OK under fair use. Contracts, under US law, are what can actually trump anything. If authors (or vendors with rights assigned by license to them by the rights holders that allow vendors to enter into licenses with users) want to design licenses that say a work can never be quoted in any context without express permission, they can. Luckily, libraries generally have smart acquisitions folks that review licenses with a fine-toothed comb to identify such unlikely terms and push back on them where possible.

The third is one that comes up a lot in the text digitization realm. How can, say, an edition of Tom Sawyer be copyrighted? Isn't it in the public domain? It was published in 1876! The catch is that publishers can copyright their editions/manifestations because of the work that goes into designing and producing them. So yes, an edition of Tom Sawyer can be copyrighted. As can the electronic transcription of a microfilm image of a newspaper article from 1885. The original print article is no longer covered by the publisher's rights, but the publisher of the microfilm and the creator of the electronic transcription can claim rights if their manifestation is deemed copyrightable, and therefore place restrictions. There is a lot of discussion about what level of production work makes a manifestation copyrightable, but that's a whole other topic.

No comments: