Kat Walsh wrote:
In fact, free content licensing depends on the
existence of copyright.
Hmmm! This sounds like a religious person saying that we need Satan in
order that God's glory might shine brighter. :-)
The position we've taken is basically one that
copyright as it stands
does not always produce the best situation.
It doesn't indeed.
Because we believe that society would be better off if
everyone had
easy access to educational information, and the ability to use that
information in the way that most suits their needs, we want to
encourage the development of material that is under less restrictive
terms. Which may be public domain, but is more frequently still
copyrighted, but not under the default conditions which leave *all*
rights reserved to the copyright holder.
Fair enough. This speaks for a more graduated series of possibilities
between the two black-and-white extremes. Fair use provides this to
some extent, but it has become a blunt tool that deals inadequately with
the the rights of the author and the public. To me, having a free
project goes farther than using only material that is already free; it
also involves freeing apparently unfree material. Orphan works are
perhaps the most prominent among these, but even they can be divided
into sub-classes. Works where we can establish that no copyright owner
exists are distinct from those whose copyright owners merely cannot be
found. For example, where do corporate copyrights go when a corporation
goes into bankruptcy? Tangible assets are liquidated and distributed
according to established rules, to some extent on a pro-rata basis among
members of a class of creditors. Nobody thinks of distributing
copyrights, but the courts determine that what assets are available are
properly distributed and discharge the bankrupt. Who owns the
copyrights. The annual reports of that company may have historical
value, but no-one can use them if we believe in a strict interpretation
of copyright. As another example, the sale flyer that your local
supermarket distributed door-to-door 20 years ago is still protected by
copyrights.
I am personally involved in a situation with a puzzling copyright
situation. I am co-executor of an artist who died in 2005 being 87
years old. She has no known relatives, or at least the post-war refugee
organizations were unable to find any of them. Yet she left a large
body of art, some of which is quite interesting. Nevertheless, she
never did much to market her work. It does not have an established
market value. That being said, the entire body of work remains
copyrighted until 2055, and knowing what to do about those copyrights is
a dilemma.
We don't say that copyright is evil. We don't
demand that all
copyrighted works be freed. We don't ask everything to be public
domain. We don't fight the existence of copyright. Instead, we work
within the existing system to create a body of work under more
permissive terms.
Not demanding that _all_ copyright materials be freed should not imply
that we are demanding that all copyright materials should remain unfree
until the apparently subsisting copyrights have completely expired.
There is a huge gap there. It is precisely within that gap that I
believe that there should be a greater effort to push the envelope. I'm
not even saying that this should be happening in Wikipedia as we know
it, or even in any of the existing sister projects. Perhaps it would
take some kind of intermediate project where the cards are laid out on
the table, and we let everyone know that there are uncertainties
surrounding the copyrights for the material. We also let it be known
that if someone with a genuine interest comes out of the woodwork we
will bend over backwards to be co-operative.
Copyright was established to serve a purpose: to
promote creation and
progress, to encourage people to create more works. But are the
current specific details of how that is implemented ideal? No, and I
don't think anyone would say that they were.
That purpose is consistent with Jefferson's concept of copyrights, and
is also consistent with the limited monopolies that were granted back
into the 17th century in England, and is even consistent with a broader
common law tradition. Be that as it may, people rarely express this
creativity for 70 years beyond their death. What kind of encouragement
is being provided in the case of relatively unknown works, when the
theoretical owner doesn't even know that they exist?
I would also question whether this purpose was ever a part of the
reasoning that went into the copyright law of countries that derive
their law from the Napoleonic Code. If anything the moral right of
integrity actively discourages creativity.
If you start with the idea that it is a social good if
everyone can
have easy access to whatever educational material they need, for
whatever purpose, then you start to look at ways to accomplish that.
(If you don't believe that would be a good thing, why are you here?)
You can't do it if all material is under stringent protections. And
those protections don't even always serve the best interests of
everyone "protected" by them. If you want that sort of society, too,
you don't want all of those protections on all of your work."
We really do agree on this. 8-) How is it that I end up believing in a
more pro-active approach? Is it just me that has this cynical belief
that those who have the rights will do whatever it takes to preserve
them. If their activities incidentally protect work that no-one wants
to protect, and that keeps their opposition off-balance that all works
to their benefit.
You also can't do it if no one is willing to
create works to be used.
What's more, you might consider it a good thing if your releasing your
work for such uses encouraged other people to do the same thing,
because it would go even further toward achieving your goals. So you
try and find an alternative to the default protections of copyright
that better achieves what it was intended to do: further the interests
of society as a whole.
Sure. Ideas and the play of ideas are more important than the form of
their expression. Free licensing achieve some of this ... maybe! They
still require a lot of judicial testing. What happens when some
European court rejects them with the notion that moral rights are
inalienable so you cannot grant the collective the right to modify your
work.?
So the basic ethic of content on the Wikimedia
projects is "you can do
whatever you want with this work, so long as you give everyone else
the same rights with whatever copies of the work that you give them."
(This is a simplification, but it's not too far off.) It encourages
people to free their work in order to use the body of work that
already exists, or to be part of a larger project. (Sort of like the
idea of matching donations, or group pledges: I'll do my small part if
doing so contributes to a larger good.) No one is compelled to free
their work if they don't want to, but there are advantages to doing
so. It seems pretty fair to me.
Sure.
But none of this implies "copyright is
evil". It's "the typical
effects of copyright are not always what we think would be best, or
even what it was intended to do".
"Copyright is evil" is more a slogan than an argument.
A longer copyright protection makes more sense on
works of art than
works that are intended to be useful in themselves, although in the
majority of cases, where the full protections of copyright aren't
doing the artist very much good, perhaps it's not the best option
either. (I say this as a thoroughly unremarkable and unremarked-upon
writer and composer; I have a music degree and have in the past made
some depressingly small amount of money selling work.)
I see no benefit from giving longer benefit to works of art. We have
far more arguments over the copyright of illustrations than of texts,
and in many cases where the pictures have become part of a large
commercial library it would be more difficult to trace the real
copyright owner. It would be interesting to require that these
libraries show a complete provenance of their copyrights in this stuff,
and make copies of all supporting documents publicly available.
When it comes to "a thoroughly unremarkable and unremarked-upon writer
and composer", (as with the estate of which I'm executor) fame and
fortune may depend on having a grandchild who really thinks that
grandma's memory needs to be preserved. That's still unlikely to bring
you the money when you need it.
A logo isn't intended to be useful or educational
in itself. But since
many humans are visual creatures, they like to have nice-looking
symbols to represent their organizations. (Me, I'm an
auditory-oriented person, and I have the visual sense of boiled
cabbage. But this is what I hear.) It's not terribly important that it
be free; it doesn't contribute too much to the common culture. If it's
trademarked, you can't do anything particularly "free" with it either.
I think that many of our colleagues tend to muddle copyright and
trademarks. I do like the use-it-or-lose-it approach to trademarks,
and it would make a nice addition to copyrights. I do consider my self
to be more visual than auditory, but being visual does not promise that
the hands will agree. I'm sorry to hear that you have the eyes of a potato.
(While trademark creates a right for the holder, its
effect is largely
the protection of the "consumer" -- to keep people from being misled
by someone who uses the same or confusingly similar marks. Not that
this stops aggressive rights holders from sending completely bogus
trademark infringement letters in order to suppress criticism, but
they shouldn't get away with it.)
They really protect both sides.
So I don't see it as a hypocrisy or a
contradiction that the Wikimedia
logos are not free. They're not really part of what we're here to do,
they're just there for visual identification. We don't demand anyone
else's logos be free; projects can choose to accept using those images
for appropriate purposes or choose not to accept them at all. For
obvious reasons, the Wikimedia logos should be used on all projects.
:-)
We're looking into the legal implications of protection on the logos,
but in terms of how pressing a priority it is, it's somewhere behind a
lot of other things that are really important to do sooner rather than
later; our new full-time counsel has no shortage of work at the
moment.
Do our logos need to be all rights reserved? Would trademark
protection alone be sufficient? (Getting trademark protection for all
our marks in all countries where we should have it is not as simple as
it may sound.) I can't give a definitive answer, but we can get advice
from counsel, in the course of things. One main concern is that people
don't go around and use the logo for things that would be damaging to
us, passing themselves off as us, or giving people the idea that we
approve of or sponsor things we don't have any involvement with. If
the logos can be made more free, that would be great. But I don't
think it is a priority, and it needs to be considered in light of all
of the effects. Wikimedia first needs to make sure it is a responsible
steward of our resources, even if that means acting slowly or taking a
course of action that is not ideal in some aspects.
I agree. The last point is particularly important, and many who
complain endlessly about the minutiae of logos are completely out of
their element when they have to deal in any way with matters of fiscal
responsibility.
I freely admit that having the logos on Commons is
just a dirty hack,
so that they are easily accessible from all projects. They should
probably be included within the skins or something, but I don't know
how that should work if they need to be resizable and so on; I'm not
the person to ask that question of. It's not ideal, but it works
better than other things for now.
(I note that I'm speaking only for myself now, but this is the
perspective I bring to discussions about licensing, and I think it is
shared by the other board members.)
-Kat
Thank you for your thoughtful analysis.
Ec