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Open and the “Next Great Copyright Act”

March 20, 2013 in Legal, Open Content, Public Domain

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 available and a longer speech given two weeks ago (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 years 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 bounty. 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

Pallante:

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.

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