Enter Obama, bearing Web 2.0 gifts
All works of the US Government are in the public domain. It's a condition of Federal Law. Recently, Yahoo's Flickr photo service was granted exclusive access to the Official White House Flickr Photostream.
But because Flickr is ideologically committed to Creative Commons licensing, it offered no licensing tags for public domain material, claiming it had no way to check every submission was truly public domain. This forced the White House photos to be licensed under a CC license. But CC relies on copyright. It is merely a waiver of rights granted by copyright, and these public domain works could never be assigned copyright. Users objected to Flickr assigning licensing restrictions where none could legally be imposed. Flickr initially refused to change its licensing terms, defending their use of CC licenses. They have since relented, creating an exclusive new category of "United States Government Work," linking to a document describing their public domain status, rather than just assigning a public domain tag. Now Creative Commons seeks expanded authority to administer the Public Domain, by issuing a "Creative Commons Public Domain License," as if it was a sublicense of its own invention. Creative Commons is trying to expand its licensing authority over not just newly created works, but all public domain works.
Public domain licensing is still not available to any Flickr user. This forces everyone, from individuals to large public institutions, to contribute their works to the "Flickr Commons" under a CC license, even if the works are clearly in the public domain. Flicker is enacting a blatant power grab on behalf of Creative Commons. They are establishing an extra-legal licensing monopoly, imposing an illegal copyright license structure on free works. And this is the most pernicious effect of copyfraud: it exploits the public domain to aggregate monopoly power for private interests.
Creative Commons seeks to become the arbiter of public domain licensing, yet it has no governmental authority and cannot enforce its licenses. Nor is it subject to Congressional oversight like the Copyright Office.
Google's land grab
Google is engaged in a similar power struggle. Under the Google Books settlement with publishers, the company has already negotiated expanded authority to administer copyrights on "orphan books," legitimately copyrighted books that are out of print. Google wants to become an alternate registrar for the public domain, keeping a registry of American books that publishers have failed to renew copyrights. This database was scraped from government online records, but Google says this list is not authoritative or exhaustive, even conceding that errors are likely. So Google is unofficially performing official governmental regulatory powers on copyrights. This should be prevented, handled only by the true governmental authority: The Library of Congress. Eventually Google will collect payments and distribute royalties for orphan books, giving Google truly monopolistic control of both copyright and the profits from copyrighted books.
Google's public domain book scanning project has enhanced its authority as the primary internet source for the world's written knowledge, giving Google a powerful bargaining position when it negotiated the orphan books settlement. Once Google drove out rival book scanning projects like Microsoft Live Search, publishers had little ability to resist Google's monopoly, forcing them to settle for less.
Google has usurped governmental functions that protect the public interest with a failed bureaucracy that serves only private profit. And Google is well positioned to continue their power grab, there are now three ex-Google executives on the White House staff. Google's chief policy executive will become the government's Deputy Chief Technology Officer. And now Google has announced its intention to sell ebooks through Google Books, directly competing with Amazon and other booksellers. Google has leveraged its power to become a publishing monopoly.
A plan to beat Copyfraud
What can be done to protect the public domain from such opportunism?
As Professor Mazzone says, "Copyright law suffers from a basic defect: the law's strong protections for copyrights are not balanced by explicit protections for the public domain." The balance must be restored. There is nobody devoted to protecting the public trust against the forces who would exploit it. Only governmental authority can protect this public resource, and governments must act to protect our common rights.
Dominant corporate interests like Google can easily create systemic abuses against the public trust. They must be restrained. Copyright law should be enhanced to protect the public interest, but existing law has enough regulatory power - if the government has the will to use it. Allowing these abuses to continue will only lead to new monopolies.
Government should act to secure its authority over copyrights, stopping the self-interested meddlers like Creative Commons and their Public Domain licensing, and Google's registry of lapsed copyrights.
Private interests should be prohibited from exerting pseudo-regulatory powers, as well as the means to profit from their own regulation. Anti-trust actions could break up the newly forming publishing cartel before it becomes entrenched. At a minimum, Google's orphan books settlement should be given further judicial review and invalidated. Google and Amazon should be prohibited from offering books with false copyrights, the public should be empowered to flag copyfraud books and issue a take-down notice.
Publishing should not be permitted to become a Google-Amazon oligarchy. Let us not forget what happened when a single portal to the entirety of the world's books was assembled: the ancient Library of Alexandria burned to the ground, taking everything with it. Nobody should be allowed to become a single portal to the world's knowledge. ®
Charles Eicher is an artist and multimedia producer in the American Midwest. He has a special interest in intellectual property rights in the Arts and Humanities. He writes at the Disinfotainment weblog.
Yes, you can retype a PD book, print, bind and and sell it. In other words, you have made a new physical copy of the work. Your effort has created value in nice physical copy, and you'd expect me to pay a suitable amount in exchange for it.
But you cannot claim distribution rights over it, since distribution rights are bestowed by copyright and you'd only have copyright if were an original or derivative work. It's neither. You cannot claim ownership of the words. I can therefore buy your book, scan and sell the PDF or my own reprints, or just put them on the Internet for free download.
It's the same in reverse - think of bootleg copies of live music. Just because I put effort into recording, post-processing and presenting it nicely on a CD doesn't change the legal status of the work. It's still owned by the performer, and I cannot sell the CD.
If you think I'm wrong you'll have to show me a source explaining what rights you have gained by making a new physical copy of the work, and how I'm infringing those rights.
"When does derivative-work copyright exist?
For copyright protection to attach to a later, allegedly derivative work, it must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The later work must contain sufficient new expression, over and above that embodied in the earlier work for the later work to satisfy copyright law’s requirement of originality."
Standard Practice with Music
The way that classical music's traditionally been published was to take some old edition, maybe make some minor changes to it and copyright it as new material. Its becoming more difficult to do this in recent years as scans of the original editions have been made available on-line. This only applies to pre-1920 music since the copyright changes for post-1920 make it almost impossible for material to end up in the public domain unless the composer specifically puts it there.
Putting this together with all the stuff that's been said and written about downloading is interesting. It gives more of a perspective about what's really going on. The official line is that the little guy is being cheated by downloads and stuff but in practice the little guy's being cheated, period. Material like books and music are the property of publishers and they don't like free stuff being available because it makes it more difficult for them to push their "for rent" material.
Okay, it will probably ...
... be a nice little earner for copyright professionals but I think I recognise a bit of a pattern.
In a norther part of the UK (Scotland to be precise) crofter families lived and tilled the land for many a year. They were not a theoretical based people but a pragmatic sort that depended upon community in a land that was theirs until that is the notion and legal form of "land ownership" came into being. And of course, the land owner might never have had any experience of or spent any time in the land he owned. However, he did have a bit of paper backed by "law" to say he did own the land.
The crofters did not have a bit of paper... 'Nuff said?
The same thing happened in the Americas, NZ, Oz, .. Aphrika ...
So you see, bits of paper backed by "law" are very, very important.
Well, I can't really be bothered with any more but I'd guess you can predict one interim conclusion or more: consideration of new ownership must cater for previous unregistered ownership by longer standing traditions, the public needs to have a legal entity of its own ...