The third COMMUNIA workshop ‘Marking the public domain: relinquishment & certification’ (which we mentioned last week) took place in Amsterdam on Monday and Tuesday.
It brought together COMMUNIA members and other relevant parties from across Europe for talks and workshops focusing on legal issues related to the public domain, and how public domain works can be found and re-used.
I spoke about our work on Public Domain Calculators, and the possibility of working more closely with the COMMUNIA network and its members, as well as with Europeana and CCi. We’re pleased to say that there will now be a new COMMUNIA Working Group – which will include work on Public Domain Calculators for across the EU.
Speakers included:
- Bernt Hugenholtz, IViR Amsterdam
- James Boyle, Center for the Study of the Public Domain
- Mike Linksvayer, VP Creative Commons
- Diane Peters, General Counsel Creative Commons
- Lucie Guibault, IViR
- Mireille van Eechoud, IViR
- Jennifer Jenkins, Center for the Study of the Public Domain
- Paul Keller, Knowledgeland
- Patrick Peiffer, Bibliothèque nationale de Luxembourg
- Mario Pena, Safe Creative
- Antoine Aubert, European Copyright Policy Counsel, Google
- Peter Gorgels, Web Director Rijksmuseum Amsterdam
- Harry Verwayen, Knowledgeland/Europeana
There was a workshop on CC0 from a European perspective – which included interesting conversations with Jordan Hatcher of the PDDL. Mireille van Eechoud gave an informative presentation on Directive 2003/98/EC – on Public Sector Information, and its implementation across Europe.
Notes
Full documentation will be published by COMMUNIA in due course. Meanwhile, below are some rough notes from the opening session with James Boyle and Bernt Hugenholtz – which included a fascinating discussion on the history and future of the public domain in the EU and the US.
James Boyle
- Discussion of conception of copyright in Scottish Enlightenment. A necessary evil and a temporary purgatory in which works languish before the paradise of the public domain.
- ‘The best of a bad series of alternatives’. Better than patronage or subsidy.
- The public domain available for re-use and adaptation. Copyright as the price of rich public domain.
- Works would not fall into public domain – they would emerge into public domain.
- Strand of liberalism from Scottish Enlightenment.
- Default state of works (after relatively brief period of protection), rather than conception of public domain as dusty ‘lost and found office’.
- Minimalist vs maximalist visions of copyright. This picture is too simple.
- Booksellers stripped of privileges – hired Diderot as lobbyist.
- Diderot argues literary property is highest form of property. Don’t impoverish common store, add to the common store.
- Condorcet argues that copyright is placing restriction on freedom – not only of those who want to copy, but those who want copies. Question of use or harm to progress of enlightenment.
- Condorcet and Diderot’s visions going to war. We have a mix of both.
- Notion of works in the public domain as pre-requisite to ‘being a cultural hero’.
- On both sides of atlantic discussions of pd more complex than we acknowledge
- Writing and re-writing history of the public domain on both sides of the atlantic
Bernt Hugenholtz
- Agrees that history of public domain is more complex than we may assume.
- History of European copyright does not end at end of 18th century.
- 19th century thinkers tried to rationalise knowledge as property
- Nature of intellectual property, philosophical discussion.
- IP as subcategory of personality right (a bit like a human right).
- Lots of interesting ideas from German thinkers. Monist conception where copyright does not allow transfers. Copyright is other side of personality. Germany is most problematic.
- What are the differences between EU/US systems and histories of copyright?
- In EU copyright reflects personality and gives them human rights status
- Absence of constitutional mandate in EU jurisdictions is a big difference
- In US have the supreme court as an opportunity, constitutional scrutiny
- Except in places like germany that are structurally more like the US
- More difficult to come up with CC0 style declarations
- Government/legislative intervention
- Freedom of public sector information is not well grounded in europe
Discussion with James Boyle and Bernt Hugenholtz
- JB: Theoretical dimension in addition to historical dimension. In US copyright expires then freedom. What is freedom? Access? Free trade? Notion of the commons. Privately created commons. Created by individuals. Jefferson, Diderot, et al were not thinking of privately created commons. We should pause and reflect on this.
- One vision: Private commons are second best as we have bad IP law. CC would be unnecessary if we had better rules and systems. CC deals with screw ups of corrupt/broken system.
- Another vision: Not second best but first best. E.g. viral licensing. Sharealike. Imposing condition that public domain could not impose. Not just absence of rights, but stipulation of regulation.
- We need to be clear about which vision of commons we are talking about.
- E.g. strong public domain conditions. Notion of attribution. E.g. with large databases. Lots of science unworkable with viral licensing. Attribution stacking. On theoretical level having a more complex view. Analogy with property. Initially on/off switch conception. Then to much more complex/granular notion involving mortgages, rent, environmental regulation, etc.
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BH: What is public domain? Negative version of copyright? Or is it more than that? Is it a symbol or metaphor for a desirable situation in policy/legislation? Absence of IP right can lead to restriction on access. E.g. with databases. William Hill case in 2004. Events schedules not subject to copyright. Lots of events schedule data (sports schedules, etc.) is disappearing underground as a result of the fact there is no protection. Not saying it was a bad decision – but unintented consequences. Back to question – what is your conception of the public domain?
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JB: Many public domains. Appropriate definitions fit with a particular purpose. Notion of public domain depends on ‘evil’ we are addressing. Free as in beer. Limitations/exceptions. Fair use. Every creative work has public roads running through it. Animating vision is one in which public domain is a cluster of ideas – not single idea – that motivate good policy. Often people project their experience from point of entry into debate. Bring presuppositions from point of entry. E.g. software people may think viral licensing is best. E.g. synthetic biologists keen on viral licensing. Able to convince some of them that this was a bad idea. BSD-type or public domain approach better. Different approaches for different circumstances. We should ask question ‘what do we want to do?’ first, then vision of freedom.
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BH: Regarding CC0. Creative Commons has evoked criticisms. Like saying: on left there are always people left of you. Niva [Elkin-Koren] writes critically about Creative Commons. Proliferation of license-based approach adds to property rhetoric that movement wants to cut down on?
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JB: Good question. CC started by people irritated by not being able to share things. Notion of a statement, a bit like a t-shirt, pen. A declarative idea – ‘I like the commons’. People found and loved it. Applied to genetics databases. Disregarding things like Database Right in EU. People motivated by irritation. CC0 came out of that.
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Prodromos: Different visions. What about institutionalisation of PD? Interoperability of material?
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JB: I view myself as hurried waiter rather than legal tsar handing down orders. Mechanic for CC. Where is CC0? Flipside is none of this will mean anything unless public have a sense of everything everyone has a stake in. Not just lawyers/companies. So.. metaphor of environmentalism or ecology. In 1950s there was no idea of ‘the environment’. People worried about species diversity, pollution, etc. Worried about different things. Then notion of ‘environment’. Similar vision for ‘public domain’ to unify different approaches.
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BH: Not quite sure I understood Pro’s question. To rephrase: how to internalise norms? Software copyright situated in law. Existed long before it was codified. Institutions may agree on certain things, e.g. PSI should be free, publicly funded research should be free. Much prefer good norms/policies to CC0.
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Bodo: Ethnographers have been talking about norms for years. Indigenous communities having norms. How doe PD/CC0 relate to indigenous knowledge? Are they opposed?
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JB: Better solution is government data is free – period. Not even WIPO would forbid sharing of indigenous knowledge. Not opposed. CC0 is agnostic. E.g. rapacious capitalist and tree-hugging environmentalist.
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Phillipe Agrain: Parallels with physical commons. Rivalrous resources. Similar standing with physical/intellectual commons. Different take on JB’s environmentalism metaphor.
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BH: Conceptualise vision at pre-norm setting level. Human rights. Article 10, Paragraph 2. Freedom is the rule. Ownership is the exception and has to be proven/proportional. Danger to human rights narrative. Also powerful human rights argument in terms of protection. Personality right argument. Freedom of expression and intellectual property. Also relate this to previous question regarding traditional knowledge.
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Charlie Ness: Creating public domain. What open universities could do.
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JB: Phillipe’s metaphor is dangerous. The notion of great old stuff that you should leave alone. Just like French view of public grass – do not walk on it. PD is stuff that is too good to use. Avoid view of public domain that says ‘how lucky we are to have it – lets leave it alone’.
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Innovation from outlaws? File sharing. Then Radionhead/Nine Inch Nails etc.
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JB: Three different answers. (1) As scholar you may be right but not just for last 15 years or so. Line between legal/illegal. Always dialectic. Trade secrets. Elizabethan plays (people writing them down). DRM was people with bludgeons hitting copiers. In this sense comment is true. (2) In many ways this is too ‘deep’ to be useful. Notion of ‘X supporting piracy’ being fodder for newspapers. (3) Danger in public complacency. ‘We don’t need stinking freedoms as we have X technology to undermine protection/etc.’. ‘Who needs limitations and exceptions when you have YouTube?’ (until it gets a takedown notice). Danger in celebration of and reliance on piracy.
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How long will this remain deep/dangerous?
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JB: McCain campaign with letter to YouTube is big step. Freedom to remix is part of American culture. Big progress.
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Severine Dusollier: Before both maximalist/minimalist people took pd as given. Public domain is no longer a given. Thats why we need things like cc0. Building pd.
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BH: Example of proposal on term extension is good example of weakness of notion of public domain in EU. Bloggers saying ‘What are these acdemics complaining about – do they want a free ride on the beatles?’. Public information law approach. Can learn from US.
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JB: Case of patents over ploughshares. Unconstitutional to withdraw something from the public domain. Or to impede access to PD. Public domain as a zone of freedom that citizens get to play with. Normative vision. Speech based/innovation based that we can work with.
The Creative Commons/Public Domain movement needs to seriously address issues related to traditional knowledge. Of course WIPO won’t “forbid” the sharing of traditional knowledge – it clearly has no power, or desire, to do so. What WIPO is considering are the rules under which traditional knowledge is shared. Most of these relate to customary law (“local norms” can be used in a way to demean and trivialize traditional legal systems that may have been in place for hundreds of years to millennia – long before the appearance of IPR concepts in the Englich Enlightenment). The link above leads to an essay that discusses the need for the Commons movement to respect legal and cultural pluralism in regards to knowledge – there are living peoples who have neither bought into “our culture” and its concepts of either IPR or the public domain. While I am an ardent supporter of the CC and PD in the Western knowledge system, I believe the CC movement must find ways to respect other beliefs about the status, distribution and regulation of knowledge. The Commons movement often postulates two main universal states of the world – the private domain and the public domain. The Cultural Commons stands as a link, as a private domain of knowledge with broad follow-on use rights, but tends to think of all Commons as global. Most Commons, however, are local, with local norms, values, beliefs, customs, etc. adjusted to local circumstances. While “cultural remixing” may be exciting and liberating to the remixers, to the knowledge holders it may be offensive, threatening and dangerous (e.g. the use of Maori tattoos in the movie “Revenger’s Tragedy” was highly offensive to Maori). Remember that the CC is an ownership strategy, in which someone calims that they are in a priviledged position to claim and set ownership rights. Although the rights that are granted in a CC license are generally much more liberal than in copyright, it still begs the question of how the creative authors come to assert the property rights, particularly here in the case of traditional knowledge. The public domain is just as much a creature of the Enlightenment as the IPRs to which are granted temporary monopoly rights. What, pre generally, should the response of the CC be to knowledge which comes from other legal traditions that don’t recognize these distinctions? The CC movement needs to learn that forced exclosures and appropriations can be just as unjust as enclosures.