Open and the “Next Great Copyright Act”

Director of the U.S. Copyright Office Maria Pallante is expected to call today for updates to U.S. copyright law. Her brief
written testimony is already

and a longer speech given two weeks

(titled “The Next Great Copyright Act”) provides additional flavor.

Substantial changes to copyright will take years to play out in the
U.S., and similarly around the world. If Open is to impact how
copyright and other knowledge regulation plays out over the next
years, we must assert how and why, and develop our strategies for
making it so. Statements like Pallante’s
provide not-to-be-missed opportunities to contextualize and explain
the importance of Open to the world.

While Pallante’s calls are at best a mixed bag, two items offer
glimmers of hope and are useful for illustrating both the value and
strategy of Open:

Congress also may need to apply fresh eyes to the next great copyright act to ensure that the copyright law remains relevant and functional. This may require some bold adjustments to the general framework. You may want to consider alleviating some of the pressure and gridlock brought about by the long copyright term — for example, by reverting works to the public domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office.

50 years with an option for more is far from anything that might be
considered optimal — OKF’s Rufus Pollock has estimated 15
and others
less, even before
accounting for values achieved through openness such as freedom and
equality — and is a dangerous place to start new debate, considering
that Disney lobbyists have not yet weighed in.

But any possibility of mitigating the heretofore relentless march of
copyright term extension and by implication appreciation of the value
of the public domain is welcome, and an opportunity.

Some of the most compelling work by the Open community involves making
public domain works accessible, and celebrating our
. Compelling for culture — and
critical for policy. What better way to make the case for expanding
and protecting the public domain than to demonstrate and increase the
value of works that are free of copyright restriction even now? Well,
we have to talk about our work in those terms, loudly!
Public Domain Review postcards


And in compelling circumstances, you may wish to reverse the general principle of copyright law that copyright owners should grant prior approval for the reproduction and dissemination of their works — for example, by requiring copyright owners to object or “opt out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries.

Openly licensed works — those that all are free to use, reuse, and
redistribute subject only, at most, to the requirement to attribute
and/or share-alike
— unambiguously permit
such uses, right now, and are increasingly becoming expected and even
mandated where public funding is provided or public benefit is a
primary goal. What better way to make the case for liberal policy
where public funding or benefit is at stake than to promote and
demonstrate the value of Open works now? Again, we have to talk about
our usual pro-openness work’s relevance to policy, loudly!

But open licensing is opt-in (even when mandated, it is as if a group
opted-in, still leaving default policy for everyone else), ultimately
limiting its impact. We shouldn’t shy away from that reality — indeed
it is a key reason open licensing can be, if we make it so, a
harbinger of better default policy, but not at all a substitute for
better default policy.

When positioning Open in the context of broader copyright and other
information regulation debates, we shouldn’t be content to merely
address points made in those debates, but from an Open perspective.
We must also raise additional issues that arise from the experience of
Open movements: a knowledge commons requires protection and promotion.

Private enclosure of public domain and Open works, eg through
“copyfraud”, might be addressed through policy. Ensuring the public’s
right to audit, understand, replicate, and modify data and tools such
as software and designs for research and hardware, might be addressed
through policy. Actually we know these can be addressed through
policy, as demonstrated for decades on an opt-in basis through
copyleft, one of the signal innovations of our movements.

Although over 25 years old (starting with free software), open
licenses and the amazing projects that use them (that run the
Internet, and are making governments more transparent, bit by bit, and
so much more) have played almost no explicit role in debates about
default copyright policy. Hopefully you’re beginning to think that we
can change that — with little or no alteration of our existing Open
activities, as we mainly need to appreciate just how provocative and
potent those are, and tell the public, especially the policy world.

Ultimately, we can shift the centrality of “copyright policy” to that
of “open policy” — what information regulation is best for the
knowledge commons — for all humanity’s yearning for freedom,
equality, and well governed institutions.