Given the limited term of protection granted by copyright law, a large number of works – whose authors died several decades ago – can no longer be owned by anyone and their use can no longer be constrained. They have become part of the common pool of knowledge that constitutes our cultural heritage and that can be freely used by everyone and for any purpose.

This year, in Europe, we are happy to welcome the works of:

Walter Sickert, a German painter who had an important influence on distinctively British styles of avant-garde art in the 20th century.

Grant Wood, an American painter from Iowa best known for his paintings depicting the rural American Midwest. He is best known for his painting American Gothic, an iconic image of the 20th century.

Bruno Schulz, a Polish writer and artist most famous for his collection of short stories The Street of Crocodiles (1934) which centre on a merchant family from a small town in the Galician region.

Arthur Edward Waite, a scholarly mystic who wrote extensively on occult and esoteric matters, and co-created the widely used Rider-Waite Tarot deck.

Stefan Zweig, one of the most famous authors in the world of the 1920s and 1930s;

Franz Boas, a German-American pioneer of modern anthropology often referred to as the “Father of American Anthropology”. He applied the scientific method to the study of human cultures and societies; previously this discipline was based on the formulation of grand theories around anecdotal knowledge.

Robert Musil, an Austrian writer whose huge tome of an unfinished novel “The Man Without Qualities” is generally considered to be one of the most important modernist novels;

… and many more.

The Public Domain Review has compiled a list of the most notable authors whose works are entering the public domain in those countries with a ‘life plus 70 years’ copyright term.

These works can now be freely reproduced and shared to everyone; they can be freely use, reused, translated, adapted or otherwise modified by anyone without asking for permission and without incurring the risk of violating the law.

Yet, it is important to remember that copyright law differs from one country to another. For instance, in the U.S., the Sonny Bono Copyright Term Extension Act – which added 20 years to most copyright terms – effectively “froze” the public domain by stipulating that, unless otherwise stipulated by the copyright owner, all works produced in or after 1923 and still eligible for protection in 1998 would not enter the public domain until 2019 or after. Unfortunately, today, there is not much to celebrate for them.

Hence, before using a work, it is always necessary to check the status of the work in the country where it will actually be used. Yet, given the complexity of copyright law, this can often be an extremely tedious complicated process. To facilitate the task, various tools have been developed –  such the Public Domain Calculators of the Open Knowledge Foundation, and  outofcopyright.eu from Europeana – to help determine which works are in the public domain in various countries around the world.

For more information on the public domain day, check out the Public Domain Day website – an initiative of the international Communia Association for the promotion and the preservation of the Digital Public Domain, with the special support of the Open Knowledge Foundation.

This work-in-progress document presents policy recommendations and strategies aimed at the transnational level, namely WIPO CDIP and SCCR. Legal language will be drafted at a later stage.

Policy recommendations are:

1. Definition of a positive status for the Public Domain

2. Recognition of the validity of voluntary dedication to the Public Domain

3. Facilitating the identification of the Public Domain status

The full policy paper can be downloaded as a pdf: Communia Positive Agenda for the Public Domain and the full text is also available below:

Preamble: what is the Public Domain?

The Public Domain consists of all material that can be freely accessed and reused:

• creations which are no longer covered by copyright or related rights,

• information, facts, data, and ideas which are outside of the scope of copyright protection.

These materials are the basis of the exercise of many fundamental human rights and values, such as the right to cultural expression and to education, freedom of expression, citizen democratic participation and economic and social innovation.

Rationale: why strengthen the Public Domain?

The role of the Public Domain, already crucial in the past, is even more important today, as the Internet and digital technologies enable us to access, use and re-distribute information with a marginal cost of zero. It has thus become necessary to reform the copyright system to recognise the existence of the Public Domain, so as to counteract the continuous extension of copyright protection threatening the right to access and reuse culture, education, science and public information for the shared benefit of all creators and members of the society.

Policy recommendations

1. Definition of a positive status for the Public Domain

The Public Domain deserves a positive recognition to better identify works and usages which are available for creators and users to build upon. It should not be defined as a mere non “Intellectual Property” protection zone. This would be consistent with the history of “Intellectual Property”, which used to consider the Public Domain as the rule and copyright as the exception, as a temporary and limited monopoly of exploitation. This crucial balance should be clearly reintroduced within the copyright regulatory framework.

Implementation:

1.1. Positive definition

Copyright law should include a definition for the Public Domain.

Proposed legal language:

The Public Domain consists of all material that can be freely accessed and reused. This shall include:

1.1.1. Material being no longer covered by copyright protection: these include copyrighted works but also data, databases, compilations, performances, phonograms and broadcasts subject to copyright-related protection.

For example, Chilean Law No. 17,336, article 11 recognises the existence of the Public Domain as a common pool of works that “may be used by anyone, provided they respect the ownership and integrity of the work.” This includes, inter alia, “(a) Works whose term of protection has been extinguished.”

1.1.2. Information, facts, data, and ideas which are outside of the scope of copyright protection: these include all materials that are not eligible for protection under copyright or related rights.

Copyright legislations usually provide a list of material subject to protection but not of items which should remain out of protection. This contrasts with patent laws in many jurisdictions, which often include specific provisions stipulating what is specifically excluded from protection.

1.2. Legal safeguarding

The Public Domain should be safeguarded from private appropriation and closures through legal, contractual or technical barriers. Works that are in the Public Domain in analogue form should stay in the Public Domain once they have been digitised.

Implementation:

1.2.1. Safeguarding the Public Domain from private appropriation

A positive definition of the Public Domain should be accompanied by guarantees of freedom of access and re-use for all, without the possibility for adding legal, contractual or technical restrictions.

The WIPO 1996 Treaties should prohibit the use of technical protection measures on Public Domain material.

There should be a system for legal recourse allowing Public Domain users to prevent attempts of Public Domain misappropriation. Legal sanctions should be devised to prevent false or misleading attempts to claim exclusivity over Public Domain material.

For instance, Chilean Law No. 17,336, article 80 provides that “(a) anyone who knowingly reproduces, distributes, makes available or communicates to the public a work belonging to the public domain […] under a name which is not that of the true author” or “(b) anyone who claims or demands economic rights in works in the public domain” shall be “deemed to have committed an intellectual property violation.”

1.2.2. Preserving the digital Public Domain

Digital reproductions of works that are in the Public Domain shall also belong to the Public Domain. The use of works in the Public Domain should not be limited by any means, either legal or technical.

The internet enables the widespread re-use of digital reproductions of works whose copyright protection has expired. The Public Domain status of these works means that there is no owner who can impose restrictions on their reuse. Nonetheless, the owners of the physical works (such as heritage institutions) can consider themselves entitled to control digital reproductions and impose restrictions on their reuse conditions. However, the digitisation of Public Domain works does not create new rights: works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitised.

Therefore, the law shall consider such restrictions to access and reuse of digitised Public Domain material as void (with possible legal sanctions).

2. Recognition of the validity of voluntary dedication to the Public Domain

Dedicating a work or any copyright protected item to the Public Domain should be considered as a legitimate way to exercise one’s exclusive right in order to contribute to a common pool of reusable works. (We recommend the use of “dedication” to the Public Domain as a more positive expression than “voluntary relinquishment of rights”).

The legal enforceability of voluntary dedications (or “rights relinquishments”) should be recognised in all jurisdictions and interpreted as compatible with rightholders’ moral rights.

A positive status for the Public Domain should recognise in all jurisdictions the legitimacy and enforceability of voluntary dedications to the Public Domain by the use of tools such as CC0. Moral rights should not be seen as impediments, as dedicating a work to the Public Domain is in fact a way to exercise one’s moral rights. Since moral rights are compatible with the Public Domain, they are also compatible with the voluntary Public Domain.

For example, Chilean Law No. 17,336, article 11 stipulates that the Public Domain shall include, inter alia, “(c) works whose owners have waived the protection granted by [copyright] Law” which “may be used by anyone, provided they respect the ownership and integrity of the work.”

Besides, the mandates between collective rights management organisations and their members should guarantee the ability of rightholders to fully exercise their rights to dedicate their works to the Public Domain.

3. Facilitating the identification of the Public Domain status

It is difficult to assess whether a work is in the Public Domain due to the complexity and the lack of harmonisation of national copyright rules. The need for legal certainty for users in this respect calls for clarification. Beyond registration and Rights Management Information systems, copyright law shall allow for a clear identification of the Public Domain status of a work or any subject-matter eligible for copyright or copyright-related protection.

Implementation:

3.1 Simplified and harmonised copyright duration and territoriality rules

The rules to determine the term of copyright protection have become so complex that it is almost impossible to establish with certainty whether a work or other subject matter is protected by copyright or whether it is in the Public Domain. Harmonising the legal framework with regard to copyright duration and territorial scope would allow for an easier identification of Public Domain contents across the world.

The way to reduce the divergence between national legislations as regards copyright scope and duration should be clarified at WIPO and EU levels.

3.2 Rights Information Measures

The role of Rights Management Information (RMI) in the identification of the contents of the Public Domain should be recognised. The use of a “Public Domain Mark” such as the tool developed by Creative Commons or a stronger equivalent with metadata carrying the stamp of the declarant – be it a national library, the ministry of culture or public and private registries – would be extremely useful to identify Public Domain material and prevent their misappropriation by adding a layer of rights.

Such technical informational tools identifying Public Domain contents shall be coordinated on a trans-national level by existing rights management structures such as collecting societies.

The definition of “Rights Management Information” in the 1996 WIPO Treaties should include any electronic information pertaining to Public Domain material as recommended by Prof. Severine Dusollier.

3.3 Registration tools

The relevance of registration tools to help identify and locate rights holders and Public Domain contents has to be acknowledged and further analysed. Easier identification and location of rights holders and Public Domain material would help avoid situations like the “orphan works” phenomenon and foster innovative digitisation initiatives. In this respect, the re-introduction of copyright protection formalities would deserve further analysis.

In order to prevent a default protection system being not in line with both digital needs and rightholders’ will for less protection, full copyright protection should only be granted upon registration. Non-registered items eligible for copyright protection should only get moral rights protection. This would help users identify resources being in the Public Domain, either at the end of rights duration or following a Public Domain dedication.

New research shows that the traditional arguments for copyright extension are as flawed as we always suspected.

Copyright is generally defended in terms of the stimulus it gives to creative production: what motivation would anyone have to do anything ever if they don’t get decades of ownership afterwards? But then how do you justify the continual **increase** in copyright terms which has taken place over the last century, and applies retrospectively to works made in the past? Extending their copyright protection can’t stimulate their production – they’ve already been made!

Three main arguments are advanced: that works which fall into the public domain will be under-exploited, because there will be no incentive to produce new works; that they will be over-exploited, with too many people using them and therefore reducing their worth; and that they will be tarnished, by being reproduced in low quality ways or associated with undesirable things.

All three arguments, it seems, are nonsense. A new research paper, [“Do Bad Things Happen When Works Enter the Public Domain?:Empirical Tests of Copyright Term Extension”](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130008), has taken the example of audiobook reproductions of public domain and copyrighted works, and investigated the three potential types of damage that are thought to occur in the transition to public domain status::

Our data suggest that the three principal arguments in favor of copyright term extension—under-exploitation, over-exploitation, and tarnishment—are unsupported There seems little reason to fear that once works fall into the public domain, their value will be substantially reduced based on the amount or manner in which they are used. We do not claim that there are no costs to movement into the public domain, but, on the opposite side of the ledger, there are considerable benefits to users of open access to public domain works. We suspect that these benefits dramatically outweigh the costs.

Our data provide almost no support for the arguments made by proponents of copyright term extension that once works fall into the public domain they will be produced in poor quality versions that will undermine their cultural or economic value. Our data indicate no statistically significant difference, for example, between the listeners’ judgments of the quality of professional audiobook readers of copyrighted and public domain texts.

[TechDirt commented](http://www.techdirt.com/articles/20120926/20003120523/do-bad-things-happen-when-works-enter-public-domain-data-says-no.shtml):

It’s getting to be that time again, when Mickey Mouse gets closer and closer to the public domain — and you know what that means: a debate about copyright term extension. As you know, whenever Mickey is getting close to the public domain, Congress swoops in, at the behest of Disney, and extends copyright.

The results are clear. The so-called “harm” of works falling into the public domain does not appear to exist. Works are still offered (in fact, they’re more available to the public, which we’re told is what copyright is supposed to do), there are still quality works offered, and the works are not overly exploited. So what argument is there left to extend copyright?

His proposed legal reform is driven by two complementary objectives:

The first objective is defensive, give that there is a urge to protect the public domain in the digital age. The public domain has been subject to a slow erosion over the course of the last century. This is mainly due to the constant extension of the copyright term and the establishment of new rights, but not only. Public-private partnerships for the digitization of the cultural heritage is a source of concern insofar as private firms are granted exclusive rights over digitized copies. Indeed, while digitization should be an opportunity to broadly disseminate public domain works, cultural institutions (libraries, museums, archives) are increasingly affecting the integrity of the public domain by means of specific techniques intended to create new layers of rights over the digital copies of these works.
For these reasons, if we want to preserve the public domain in the twenty-first century, it is essential to protect it through the law. We can no longer let this fundamental issue be exclusively dealt with by cultural institutions and the communities they belong to, since those are often ill-equipped to address the issue and might even be tempted to make profits by commodifying the public domain. The State must ensure that the public domain is preserved for the benefit of all citizens, who shall all be entitled to freely access their own cultural heritage and create new works based on prior works.

The other objective is more of an offensive one, in that it suggests a positive reform of copyright law. Thus far, the majority of reform proposals have only been concerned with the issue of piracy and the legitimacy of non-commercial file sharing. Yet, it is just as important to fight on another, complementary front, as regards the positive recognition of the public domain.

The following proposal has been inspired by several sources: Communia’s Manifesto for the public domain, the reform proposals from La Quadrature du Net, the Open Glam report on opening up data and cultural content and the report of the Committee of Wise Men on the European public-private partnerships. Interesting suggestions also came from the report recently published by the Terra Nova Foundation, which has devoted an entire section to the issue of the public domain in the digital age.

It has to be noted, however, that this proposal only concerns French legislation and is not directed towards reforming European law. Hence, it does not cover essential aspects which are crucial for the public domain – such as reducing the duration of copyright and neighboring rights – but that could only be implemented at the European level.
Lionel thus proposes a list of twenty-six points for potential law reform, drawn around seven different objectives:

I) To explicitly recognize the notion of the public domain in French Intellectual Property Code

1. Clarifying the definition of “work of authorship” by endorsing the criteria of originality and fixation directly into the law.

2. Explicitly including the notion of “public domain” into the provision on the copyright term.

II) To simplify the public domain regime by harmonizing the terms of protection.

3. Removing the additional term of protection to compensate for the war period.

4. Removing the 30 years extension for authors who “died for France”

5. Eliminating the special regime for posthumous works

6. Simplifying the international application of copyright law

III) To limit the scope of the copyright

7. Precluding protection for works’ titles

8. Introducing the distinction between “useful works” and “works of art” into French law

9. Limiting the scope of moral rights to the life of the author

10. Preserving the public domain status of works incorporated into composite works

11. Keeping public domain works freely reusable in the case of simple reprints

12. Establishing a “three-step test in reverse” to prevent future infringements of the public domain

IV) To prevent attempts to the integrity of the public domain

13. Ensuring that the faithful reproduction of two-dimensional works in the public domain are also in the public domain

14. Preventing the commodification of the public domain as a result of the sui-generis rights on databases.

15. Precluding limitations on the reuse of public domain works according to the French law on public sector
information.

16. Avoiding confusion between the public domain within the meaning of intellectual property and the public domain in the sense of public property.

17. Prohibiting the use of contractual means to limit the reuse of public domain works.

18. Prohibiting the use of DRM to constrain the reuse of public domain works.

19. Dissuade cultural institutions from preventing the reproductions of public domain works

V) To strictly regulate public-private partnerships for the digitization of the public domain

20. Limiting the exclusive rights granted to private partners and introducing the recommendations of the European Committee of Wise Men into French law

VI) To expand the public domain with recent works

21. Facilitating the voluntary donation of works in the public domain by their authors

22. Ensuring that all works produced by public officials in the exercise of their mission automatically enter the public domain

VII) To create mechanisms to further enact the public domain

23. Establishing penalties for infringements on the integrity of the public domain

24. Encouraging the CADA to provide advices on the reuse of public domain works

25. Creating a national registry of public domain works

26. Ensuring that metadata concerning public domain works are also in the public domain

A more detailed analysis of these points can be found here (only for french speakers).

Lionel concludes with a dream: “that France, the country of Beaumarchais and the patrie of author’s rights, also becomes the first country to pass a law for the public domain!”

We hope that these propositions, although specifically oriented towards French legislation, could be an inspiration for other people to undertake a similar analysis on how the law could contribute to the preservation and promotion of the public domain in their own country !

Robert Delaunay's 'Graphic Champs de Mars: La Tour Rouge'. Delaunay's work entered the public domain in the US and the EU at the beginning of this year.

Following the trend established by the [Communia Thematic Network](http://www.communia-project.eu), we celebrated [Public Domain Day](www.publicdomainday.org/) in Paris on the 26th of January with an event organised by the Communia Association, Wikimedia France, Creative Commons France, the CNRS Institute for Communication Sciences and the Open Knowledge Foundation.

What unites all these organisations is that they share the common goal of encouraging the dissemination of knowledge and information, including – but not limited to – works that are in the public domain.

After an introduction by Adrienne Alix (Wikimedia France) and Mélanie Dulong de Rosnay (ISCC/Communia), the event started with a screening of Georges Méliès’ science fiction movie “A Trip to the Moon” from 1902. This was followed by a presentation of works that entered the public domain on January 1st 2012. A list was created by sorting the entries of Wikipedia according to the authors’ deaths and is available at the following address: [http://journeedudomainepublic.fr/ils-rejoignent-le-domaine-public-en-2012/](http://journeedudomainepublic.fr/ils-rejoignent-le-domaine-public-en-2012/). The list includes famous French authors such as Maurice Leblanc (Arsene Lupin), as well as the painter Robert Delaunay. It also includes internationally renowned authors such as James Joyce and Virginia Woolf, to name a few.

After the initial celebration, Lionel Maurel (Bibliothèque Nationale de France) and Primavera De Filippi (Open Knowledge Foundation) went on to illustrate the relationship between open bibliographic metadata and the public domain. While accurate and precise metadata is necessary for the purpose of identifying works that have fallen in the public domain, it is often difficult for libraries and other cultural institutions to provide all necessary information to properly determine the legal status of a work. This also was the occasion to present the [Public Domain Calculators of the OKFN](https://publicdomain.okfn.org/calculators) and the challenges that must be addressed as a result of the complexities of French copyright law.

Next up there was a round table with Philippe Aigrain (La Quadrature du Net), Rémi Mathis (Wikimedia France), Jérémie Zimmermann (La Quadrature du Net), Tangui Morlier (Regards Citoyens) and Lionel Maurel (Bibliothèque Nationale de France), accompanied in the background by a series of silent movies from the Lumière brothers.

Rémi Mathis began by discussing the function assumed by the public domain in the dissemination of culture and information, focusing on Wikimedia’s various projects. He began by explaining the concept of the public domain and the advantages it might bring to society, and went to present a number of initiatives that promote access to the public domain such as Wikicommons and Wikisource.

Philippe Aigrain went on to explain the relationship between the public domain and the common good, a relationship that is difficult to establish because of the poorly defined concept of the public domain. From an historical perspective, Philippe Aigrain draws a distinction between “res nullius” (what does not belong to anyone) and “res communis” (what belongs to the community), and argues that the copyright system should shift from a situation in which everything is by default protected by copyright to one in which everything is by default public domain unless otherwise stipulated.

It was then the turn of Jérémie Zimmermann, whose speech started by posing an important question: “Does society need to change according to the rules of law, or is it the law that must change to better comply with society?” Jérémie presented the dangers threatening the public domain, as a result of the constant expansion of intellectual property laws, the introduction of sui-generis rights on formerly non-protected materials, and the growing imposition of contractual restrictions on the legitimate use of a protected works. He contended, however, that the most fundamental thing to preserve the Internet as free a network that is not subject to governemental control or corporate censorship. Given the recent issues at stake, Jeremie concluded his talk with a series of warnings concerning the biggest threats to the free Internet, known under the acronyms of ACTA, SOPA, PIPA, URAA and so forth.

Tangui Morlier went on to present the activities of Regards Citoyens and how their activities are affected by similar issues to those affecting the public domain. As data are not subject to the french copyright but to a sui-generis right on facts and information, public domain means, for the Open Data community, more “res nullius” than “res communis”. To make government data part of the Commons as Regards Citoyens would wish, new legal tools are needed such as a real Freedom of Information Act and a public list of all public government data made accessible to private entities. Unless these tools are built, it is currently necessary to consider what is the most effective contractual tool. The answer is obviously to encourage the use of free/libre licences (such as the ODBL, CC-Zero or the « Licence Ouverte » in France) in order to allow anyone to freely use and re-use public and governmental data.

Finally, Lionel Maurel closed the discussion with an important observation: the fundamental problem of the public domain is that it does not exist, given that in France, at least, it can only be defined as a negation of rights. In this respect, he referred to the Public Domain Manifesto of the Communia network (publicdomainmanifesto.org/) which constitutes a preliminary attempt to define the public domain from a more positive standpoint.

A successful public domain day was brought to a close by some extended informal conversation over some celebratory cocktails.

At [The Public Domain Review](http://publicdomainreview.websites.okfn.org) we’re always scouring the internet for public domain gems. It’s simply incredible how much of our shared cultural heritage is now available for free online. But with so much content out there and with so many different digital collections to choose from it can often be difficult to know where to start looking for interesting and curious works. On top of this, it can often be difficult to understand what you’re allowed to do with a given work and what the license that is applied to it actually means.

It was because of these difficulties that we decided to write a [Guide to Finding Interesting Public Domain Works Online](http://publicdomainreview.websites.okfn.org/guide-to-finding-interesting-public-domain-works-online/). In the guide you’ll find information on how to collect leads, an overview of the main online public domain collections (e.g. Project Gutenberg, the Internet Archive & Wikisource) as well as some basic legal information about licensing and the public domain.

*Happy exploring! If you come across something that you think could be featured on [The Public Domain Review](http://publicdomainreview.websites.okfn.org) give me a shout at sam.leon [at] publicdomainreview [dot] org.*

The 1st of January every year is Public Domain Day, when new works enter the public domain in many (though unfortunately not all) countries around the world.

To celebrate, the Open Knowledge Foundation is launching the Public Domain Review, a web-based review of works which have entered the public domain:

• http://publicdomainreview.okfn.org/

Each week an invited contributor will present an interesting or curious work with a brief accompanying text giving context, commentary and criticism. The first piece takes a look at works by Nathanael West, whose works enter the public domain today in many jurisdictions.

You can sign up to receive the review in your inbox via email. If you’re on Twitter, you can also follow @publicdomainrev. Happy Public Domain Day!

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Related posts:

1. Which works enter the public domain in 2011?
2. Alpha launch of Public Domain Works
3. Workshop on Open Bibliographic Data and the Public Domain

On December, 10th the COMMUNIA WG3 gathered in Istanbul for the final workshop, with the aim of producing a set of recommendations about cultural heritage and the public domain.

I am not a lawyer, so I took a chance to learn about the marked differences between access rights and property rights. More than that, it became soon clear that Cultural Heritage rights (CHR) only exist in certain EU member states (e.g. Italy, Greece) while in others there are no such rights.

This poses a first set of basic problems: a Finn tourist taking a photograph of the Parthenon in Athens might actually be violating Greek CHR, especially if she’s going to publish the resulting image on the Web. Same would happen in Italy, not just inside museums but also for public buildings and panoramas. On the other hand, Portugal only listed 5 buildings that cannot be freely photographed. Apparently Finland poses no restrictions on photographing of CH, be it historical buildings or artistic creations.

CH laws were mostly conceived in a pre-digital age and even those that got recently revamped (like the Italian case) apparently ignore the ease of creating digital reproductions of CH items at no cost and with no risk of damaging the items themselves. Cultural Heritage institutions (CHI) claim quasy-property rights over the artifacts they are custodians of, thus posing serious restrictions not just to personal usage, but also to the development of public repositories like Wikimedia Commons. As the recent GLAMWIKI event at the British Museum showed, some institutions are engaging with open content creators in a positive way, claiming their role of primacy by sharing the knowledge they have, rather than closing their doors and keeping the best for themselves.

In the case of licensing, the widespread distinction between commercial and non-commercial use is really harmful and poses more problems than it solves. What is particularly frustrating is that this distinction doesn’t take into account the existance of the Commons and of the Public Domain, in other words content that can be both commercial and non-commercial at the same time. A photographer might want to publish her photographs of Archaic korai under a CC-BY-SA license, thus enabling any kind of reuse, from the incorporation into Wikimedia Commons to the publishing on a tourist guide or a textbook.

Here a further distinction is worth: most CH items are in the Public Domain themselves (because they were made several centuries ago), but the same doesn’t currently apply to their digital reproductions. If the r. is basically a mechanical operation, one might argue that no copyright should apply to the reproduction, too. Clearly, the distinction between a work that is creative and one that is not is going to be very dangerous in the case of photography and ultimately impossible (think about those monuments that are photographed thousands of times per day).

The fact that going into these subtle juridic details takes so much time and effort is, alone, a good example of the difficulties that this double layer of rights is posing.

The recommendations we collected are aimed in the direction of clearing the nature and extent of CHR, and of maximising the benefits for the Commons and the Public Domain. CHR should not be property rights but rather access rights, thus posing no limitations on subsequent copies of the first reproduction once this takes place. If there is going to be a fee for commercial use of reproductions, the process has to be easy and quick. The policy for museum visitors should be “open by default” and larger institutions (or networks) might ask digital publishers like bloggers and wikipedians to link back to the original item – even though this assumes that there’s a digital collection available on the Web. Licensing of such collections is beyond the scope of COMMUNIA, and CH is also explicitly excluded from the EU PSI directive. There was some work done by the LAPSI project at the last meeting in Barcelona about this, and the survey launched by the European Commission might help in changing this situation. Clearly, countries like Italy and Greece might see this as “selling out” one of their major assets for economic development. We believe the opposite, and tried to develop our discussion around the concept of cultural heritage as infrastructure, just like the road network or the public green, that needs to be maintained for the benefit of all citizens and the overall development of society.

CHI want to retain control over items and buildings that they often regard as “theirs”, but this need has to live together with the fact that millions of people want to share digital content about cultural heritage on the web. Ultimately, this fact should be regarded as a very positive thing, if the mission of institutions is to maximise the awareness of Cultural Heritage among the public and the impact it has on the social and economic life of EU citizens.

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Related posts:

1. Gathering, Preserving and Reusing our Cultural Heritage – the OKFN Cultural Heritage Working Group.
2. Copyright and the Digital Age
3. Study on use of open licenses by UK cultural heritage organisations

Several years ago, I began a small project I called Musopen (derived from Music + Open Source). As a college student, I was confused as to why record labels were suing their own customers and frustrated that there were no legal alternatives (sources of copyright free music). I became inspired to create Musopen using what recordings I could obtain from my musician friends and college orchestra.

Over the past few years Musopen has been fairly dormant: a small niche site for classical music recordings. I’ve spent most of this time contacting musicians I know personally, writing to music departments to donate music, and very slowly adding more music to the site. Building any community is not an easy thing, but it is even tougher though when that community is made up of groups of people asked to sit and record music and then give up their rights to those recordings. Due to the difficulty in getting new music, I was sure Musopen would remain a small side-project with little potential for growth.

New Approach

Inspired by the success Diaspora experienced with their upcoming Facebook clone, I decided to run a KickStarter campaign for Musopen with the goal of hiring an orchestra. I was hoping it might act as a small PR stunt to draw attention to the project. My original goal was $11,000, just barely enough to hire a decent orchestra and record a small set of music. With a fair amount of international attention including NPR, BBC, Wired Magazine and other coverage, we raised well over our goal receiving over $70,000.

Crowdsourcing Formula

Clearly, crowdsourcing worked in this case. However, not all crowd-sourcing approaches work equally well. I tried something very similar before which despite today thinking it would be a better approach, didn’t work. A year ago I created a feature on the site which allowed users to donate or as I called it “bid” for specific pieces of music. The idea was to create a collaborative Ebay for music, where user’s donations could be combined to purchase music into the public domain.

Not much came of this, many pledged to donate but didn’t pay. There are a few reasons why this happened. One reason is understandable: people wouldn’t donate unless they were certain the piece would be recorded. Many also have specific conditions regarding the license that should be used or specific musicians that should be hired.

KickStarter freed me of these issues as it allowed us to raise money with a singular purpose of freeing as much music as we could afford. Also notable, many of those who donated to Musopen aren’t particularly music people. Kickstarter allowed us to reach an audience passionate about freeing culture or public domain works.

What’s Next for Musopen?

With all the attention the project has received, we are focused on showing that the same model we’re proving for recordings will work for all aspects of music and music education. We are about to finish a college-level music textbook and I am interested in creating several more textbooks, online music theory tutorials, free music lessons/classes, integrating other more modern forms of music and much more.

I’m excited that KickStater and our success has shown that there is potential for open music. We have a lot of projects moving forward and if you or anyone you know is interested in working with us please feel free to write me at aaron@musopen.org.

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1. Musopen – free public domain music!
2. New developments on Public Domain Works!
3. Public Domain Works Database Project

Over the past twenty years or so we have seen a rising tide of alternative copyright licences emerge — for software, music and most types of content. These include the Berkeley Software Distribution (BSD) licence, the General Public Licence (GPL), and the range of licences devised by Creative Commons (CC). More recently a number of open licences and “dedications” have also been developed to assist people make data more freely available.

The various new licences have given rise to terms like “copyleft” and “libre” licensing, and to a growing social and political movement whose ultimate end-point remains to be established.

Why have these licences been developed? How do they differ from traditional copyright licences? And can we expect them to help or hinder reform of the traditional copyright system — which many now believe has got out of control? I discussed these and other questions in a recent email interview with Jordan Hatcher.

A UK-based Texas lawyer specialising in IT and intellectual property law, Jordan Hatcher is co-founder of OpenDataCommons.org, a board member of the Open Knowledge Foundation (OKF), and blogs under the name opencontentlawyer.

Jordan Hatcher

Big question

RP: Can you begin by saying something about yourself and your experience in the IP/copyright field?

JH: I’m a Texas lawyer living in the UK and focusing on IP and IT law. I concentrate on practical solutions and legal issues centred on the intersection of law and technology. While I like the entire field of IP, international IP and copyright are my most favourite areas.

As to more formal qualifications, I have a BA in Radio/TV/Film, a JD in Law, and an LLM in Innovation, Technology and the Law. I’ve been on the team that helped bring Creative Commons licences to Scotland and have led, or been a team member on, a number of studies looking at open content licences and their use within universities and the cultural heritage sector.

I was formerly a researcher at the University of Edinburgh in IP/IT, and for the past 2.5 years have been providing IP strategy and IP due diligence services with a leading IP strategy consultancy in London.

I’m also the co-founder and principal legal drafter behind Open Data Commons, a project to provide legal tools for open data, and the Chair of the Advisory Council for the Open Definition. I sit on the board for the Open Knowledge Foundation.

More detail than you can ask for is available on my web site here, and on my LinkedIn page here.

RP: It might also help if you reminded us what role copyright is supposed to play in society, how that role has changed over time (assuming that you feel it has) and whether you think it plays the role that society assigned to it successfully today.

JH: Wow that’s a big question and one that has changed quite a bit since the origin of copyright. As with most law, I take a utilitarian / legal realist view that the law is there to encourage a set of behaviours.

Copyright law is often described as being created to encourage more production and dissemination of works, and like any law, its imperfect in its execution.

I think what’s most interesting about copyright history is the technology side (without trying to sound like a technological determinist!). As new and potentially disruptive technologies have come along and changed the balance — from the printing press all the way to digital technology — the way we have reacted has been fairly consistent: some try to hang on to the old model as others eagerly adopt the new model.

For those interested in learning more about copyright’s history, I highly recommend the work of Ronan Deazley, and suggest people look at the first sections in Patry on Copyright. They could also usefully read Patry’s Moral Panics and the Copyright Wars. Additionally, there are many historical materials on copyright available at the homepage for a specific research project on the topic here.

Three tranches

RP: In the past twenty years or so we have seen a number of alternative approaches to licensing content develop — most notably through the General Public Licence and the set of licences developed by the Creative Commons. Why do you think these licences have emerged, and what are the implications of their emergence in your view?

JH: I see free and open licence development as happening within three tranches, all related to a specific area of use.

1. FOSS for software. Alongside the GPL, there have been a number of licences developed since the birth of the movement (and continuing to today), all aimed at software. These licences work best for software and tend to fall over when applied to other areas.

2. Open licences and Public licences for content. These are aimed at content, such as video, images, music, and so on. Creative Commons is certainly the most popular, but definitely not the first. The birth of CC does however represent a watershed moment in thinking about open licensing for content.

I distinguish open licences from public licences here, mostly because Creative Commons is so popular. Open has so many meanings to people (as do “free”) that it is critical to define from a legal perspective what is meant when one says “open”. The Open Knowledge Definition does this, and states that “open” means users have the right to use, reuse, and redistribute the content with very few restrictions — only attribution and share-alike are allowed restrictions, and commercial use must specifically be allowed.

The Open Definition means that only two out of the main six CC licences are open content licences — CC-BY and CC-BY-SA. The other four involve the No Derivatives (ND) restriction (thus prohibiting reuse) or have Non Commercial (NC) restrictions. The other four are what I refer to as “public licences”; in other words they are licences provided for use by the general public.

Of course CC’s public domain tools, such as CC0, all meet the Open Definition as well because they have no restrictions on use, reuse, and redistribution.

I wrote about this in a bit more detail recently on my blog.

3. Open Data Licences. Databases are different from content and software — they are a little like both in what users want to do with them and how licensors want to protect them, but are different from software and content in both the legal rights that apply and how database creators want to use open data licences.

As a result, there’s a need for specific open data licences, which is why we founded Open Data Commons. Today we have three tools available. It’s a new area of open licensing and we’re all still trying to work out all the questions and implications.

Open data

RP: As you say, data needs to be treated differently from other types of content, and for this reason a number of specific licences have been developed — including the Public Domain Dedication Licence (PDDL), the Public Doman Dedication Certificate (PDDC) and Creative Commons Zero. Can you explain how these licences approach the issue of licensing data in an open way?

JH: The three you’ve mentioned are all aimed at placing work into the public domain. The public domain has a very specific meaning in a legal context: It means that there are no copyright or other IP rights over the work. This is the most open/free approach as the aim is to eliminate any restrictions from an IP perspective.

There are some rights that can be hard to eliminate, and so of course patents may still be an issue depending on the context, (but perhaps that’s conversation for another time).

In addition to these tools, we’ve created two additional specific tools for openly licensing databases — the ODbL and the ODC-Attribution licences.

RP: Can you say something about these tools, and what they bring to the party?

JH: All three are tools to help increase the public domain and make it more known and accessible.

There’s some really exciting stuff going on with the public domain right now, including with PD calculators — tools to automatically determine whether a work is in the public domain. The great thing about work in the public domain is that it is completely legally interoperable, as it eliminates copyright restrictions.

See the rest of the interview on Open and Shut…

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Related posts:

1. Interview with Jordan Hatcher on legal tools for open data
2. Jordan Hatcher talk on Open Data Licensing at iSemantics
3. Open Licenses vs Public Licenses