Chapter 2

Contextualising Copyleft

So what exactly is copyleft or the open content model? While copyright has been in existence for nearly three hundred years, it is only in the past few years that it has become a subject of everyday discussion. These changes have primarily occurred as a result of the wide ranging changes brought on by the internet and by cheaper technologies of reproduction like CD writers. Disputes around file sharing, inaugurated by the Napster case for instance, have brought the discourse of copyright literally into the living rooms of ordinary people.

This movement of copyright from a techno-legal field into one that affects us on a day to day basis has foregrounded the politics of information and the control structure of copyright as well as alternatives to the copyright regime. If copyright originally emerged as a system of balance between providing sufficient incentive for authors and creators, and the larger public interest of having free availability and flow of information in the public domain, a number of scholars feel that there has been a radical shift in this balance in favour of the owners of content, rather than that of the public.

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Za provjeriti!!! prijevod prvih 2 odlomka ali u šporko

Dakle, što je to točno copyleft ili model otvorenog sadržaja? Dok autorsko pravo postoji gotovo tristo godina, samo u posljednjih nekoliko godina je postalo subjekt svakodnevnih diskusija. Te su promjene poglavito nastupile kao rezultat široko dosežnih promjena donešenih sa strane Interneta i jeftinijih tehnologija za reprodukciju kao što su CD pisači. Sporovi oko dijeljenja datoteka, započeti slućajem Napster na primjer, su doslovno donijeli diskurs autorskog prava u dnevne boravke običnih ljudi.

Taj pokret autorskog prava iz tehno-legalnog polja u ono koje utječe na svakodnevnu osnovu je stavilo u prednji plan politiku informacije i strukturu kontrole autorkog prava kao i alternative režimu autorskog prava. Ako je autorsko pravo originalno nastalo kao sustav balansa između pružanja dovoljno poticaja za autore i kreatore, i širog javnog interesa za imati slobodnu dostupnost i tijek informacija u javnoj domeni, mnogi učenjaci osjećaju da se je zbio radikalan obrat te ravnoteže u korist vlasnika sadržaja, prije nego u korist javnosti.

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It is important to remember that more often than not copyright is owned not by the authors themselves but by large corporations, the publishers, the record companies etc., and of course it is in the interests of the large players in the content industry to ensure that copyright extends its breadth and increases is depth. Two ways in which we have seen this increase is in the duration of copyright (from an initial fourteen years protection to effectively over ninety years now) as well as in its scope (copyright has extended to newer areas which it initially did not cover such as software, while at the same time controlling more rights than it was initially supposed to).

Free Software: Copyright Rearticulated

There is considerable scholarship done in documenting the expansion of copyright laws over the years, and for those interested there is a list of additional readings that you may refer to in the back of this book. The focus of this guide however takes off from the story of the extension of copyright, and the various responses that have emerged against the model of protection offered by copyright. The Free/Libre and Open Source (FLOSS) model in particular has emerged as a strong counter imagination to the dominant discourse of copyright, one that opens up alternative modes through which we can think of the question of knowledge production and distribution.

While phrases such as "free software" and "copyleft" conjure up an image of alternatives to copyright, it is relevant to note that it is not a model that abandons copyright. In fact quite the opposite, it relies on copyright law, but uses it creatively to articulate a positive, rather than a negative rights discourse. What do I mean by this?

Copyright has traditionally been an exclusive right that is granted to the owner of copyright to exploit his/ her work. Copyright is usually thought of as a bundle of rights that are available to the owner, and these are:

1. Reproduction rights: the right to reproduce copies of the work (for example making copies of a book from a manuscript)
2. Adaptation rights: the right to produce derivative works based on the copyrighted work (for example creating a film based on a book)
3. Distribution rights: the right to distribute copies of the work (for example circulating the book in bookshops)
4. Performance rights: the right to perform the copyrighted work publicly, (for example having a reading of the book or a dramatic performance of a play)
5. Display rights: the right to display the copyrighted work publicly (for example showing a film or work of art)

While copyright is available only to "original works of authorship", for the purposes of copyright law, originality does not have the same meaning that it does in ordinary literal use as signifying a process of creativity. For copyright law, originality only refers to the fact that the work was not copied from another, or to the "point of origin". Thus as long as it can be shown that the work was not copied from another person's work, and that there is some labour involved in creating the work, then the requirement of originality has been satisfied.

Another important dimension is that there are no procedural requirements for obtaining copyright, it vests automatically with the creator the moment the work has been created and fixed in some tangible form. This can be a very serious problem. For instance I have made a useful graphic file and posted it on the internet. Even if I don't have a problem with any person downloading the file and using it for any purposes, such as including it in a teaching pack or on their homepage, the law of copyright is such that someone who uses the graphic without my permission, would be infringing my copyright. It may be that I choose not to prosecute them, but what has effectively happened is that the rule of exclusion has become the default rule in copyright. We have effectively moved away from a time when everything was presumed to be in the public domain unless otherwise stated, to a system where everything is presumed to be protected unless otherwise stated.

Licenses and the Control of Copyright

At this point it is useful for us to return to the story of the extension of copyright law. Given the fact that copyright as a bundle of rights includes so many rights, it basically becomes impossible for any person to use another's work without running into the danger of being an "infringer". Thus one needs to obtain a license from the owner of copyright to use any portion of the work. A license in copyright law is basically the grant of a right by the owner of copyright which allows the recipient of the license, the licensee, to exercise certain rights with respect to the copyrighted work. Without this license any use not granted by copyright by default would, be considered an infringement.

Derived from the Latin word "licere", to allow, "license" literally means "permission". Theoretically, a license can only permit things that copyright law places under the provision of the copyright owner and doesn't already permit by default. A license can thus only allow more, not less than the default copyright regulations. Free software and open content licenses therefore are licenses in the proper sense of the word. Proprietary software licenses however are even more restrictive than default copyright regulation. The Microsoft End User License Agreement (EULA) for instance allows you to install the software on one CPU alone, you cannot transfer it onto another computer and you certainly can not do anything which allows you to look at the source code of the computer program to understand the way it works etc.:

 Distribution. You may not distribute copies of the SOFTWARE
 PRODUCT to third parties.

 Prohibition on Reverse Engineering, Decompilation,
 and Disassembly. You may not reverse engineer,
 decompile, or disassemble the SOFTWARE PRODUCT,
 except and only to the extent that such activity is
 expressly permitted by applicable law
 notwithstanding this limitation.

 Rental. You may not rent, lease, or lend the 
 SOFTWARE PRODUCT

 (End-user license agreement Microsoft Internet
 Explorer version 5.2, and software related
 components)

How is it possible that such a "license" is not a permission, but imposes additional restrictions? The catch lies in the term "license agreement", which shifts the whole matter from copyright to contract law. By making you click on a box that you agree on the terms of the license agreement, software vendors make you sign a usage contract with them, thus circumventing even the scarce "fair use" liberties granted by copyright law (such as public lending of works in libraries).

Copyleft and open content licenses however do not really circumvent copyright law, but, as stated before, work only within the legal framework of copyright legislation.

What does this mean in practical terms? Even the best free software and open content license cannot protect you from legal claims of a third party against you, be it for copyright, contract, trademark or patent violation. In other words, if you create, like Kurt Schwitters, an art movement "Merz" from the logo of the German Commerzbank, and put your Merz logo under an open content license, Commerzbank will still be able to sue you for trademark and possibly copyright violation. If you created a work for your employer and put it under an open license, or create a free variant of your original work, your employer might still sue you for contract violation if your work contract says that all your work belongs to him. If you create an open content website that has a one-click-online order function, Amazon.com can still sue you for infringement on its one-click patent. If you are a critic and need still photographs from a film you are writing about, making your work open content doesn't solve the problem that you need the reproductions rights for these images (unless they were put under an open content license themselves). Even if you get clearance for these rights, you will normally not be able to make your publication open content because that would violate the copyrights on the images.

All these severe problems can only be solved on a higher level, through a radical change of the international copyright framework in order to re-establish fundamental rights for fair and public use in the digital realm. Copylefting offers only a pragmatic solution within the existing framework, by creating a subcultural island of freely usable and distributable works within the larger sea of non-free media culture. Since any work which you don't copyleft is copyrighted by default and without your having to do anything, the limited solution might however still be better than not dealing with the issue at all.

The GNU GPL

It is within this highly rigid regime of copyright, that the Free Software movement sought to make an intervention. As a result, it has become highly popular across the world, and has become an inspiration for similar licensing models beyond the world of software. If the traditional software license specifically denies you certain rights, the GNU General Public License (GPL) is a license that that is designed to grant you certain fundamental freedoms. These are:

1. Users should be allowed to run the software for any purpose.
2. Users should be able to closely examine and study the software and should be able to freely modify and improve it to fill their needs better.
3. Users should be able to give copies of the software to other people to whom the software will be useful.
4. Users should be able to freely distribute their improvements to the broader public so that they, as a whole, benefit.

As you can see, the free software model differs drastically from the "closed source" principles of licensing. Why then do we say that the GNU GPL model is based on an innovative use, rather than an abandonment of copyright? The Free Software model is predicated on ensuring that the fundamental freedoms are not taken away or removed from the public domain by anyone: and so they have a condition attached to the use of Free Software:

   1.  You may copy and distribute verbatim copies of the
   Program's source code as you receive it, in any
   medium, provided that you conspicuously and
   appropriately publish on each copy an appropriate
   copyright notice and disclaimer of warranty; keep
   intact all the notices that refer to this License
   and to the absence of any warranty; and give any
   other recipients of the Program a copy of this
   License along with the Program.
   (...)
   2. You may modify your copy or copies of the Program or
   any portion of it, thus forming a work based on the
   Program, and copy and distribute such modifications
   or work under the terms of Section 1 above.
   You may modify your copy or copies of the Program or
   any portion of it, thus forming a work based on the
   Program, and copy and distribute such modifications
   or work under the terms of Section 1 above

 GNU General Public License, version 2, June 1991

The fundamental condition is that any person who uses free software to create a derivative work, or an adaptation of the software must ensure that this software is also licensed on the same terms and conditions, namely under the GNU GPL. If the author of a piece of free software decided to relinquish his copyright, it would mean that someone could use his or her code and create a derivative work and then license it as a proprietary piece of code, therefore preventing others from making use of the software in a free manner.

Lastly, the word "free" can sometimes be confusing as it often refers to pricing, but the word free as used in free software refers not to pricing but to freedom. Thus you can charge for free software (for instance the version of Linux distributed by Red Hat) or you can have software which is available free of cost but does not grant you any freedoms (Internet Explorer).

Challenges to copyright

What the free software movement did was use copyright in an innovative manner to ensure access, rather than restrict people's ability to use, distribute and modify code. At the heart of the free software movement lies a radical reworking of the very idea of the user. If in the realm of proprietary software the user was a passive consumer, the free software model is predicated on the idea of a user producer, a user who has the ability to contribute to the existing work and simultaneously become a producer as well. Copying, cutting and pasting, changing things, applying filters, and so on are part of the basic language of digital media. The user-producer is a concept that speaks to the digital experience and the freedoms that this digital culture allows for ordinary people to become artists and producers. This model fundamentally challenges the traditional assumptions of copyright law, it moves away from the idea of the romantic notion of authorship, which saw authorship and cultural production as an isolated activity of a genius sitting and creating something out of nothing. Instead it argues that the very essence of cultural production has been about learning from copying and producing by creatively using works that exist in the public domain. It also moves away from the mythical notion of the originality of the work to recognize the value that various users contribute through their modifications and adaptations to an existing work, thus placing a higher premium on collaborative production than on isolated production.

It is not as though the idea of collaborative production is a new one. In fact the history of cultural production has, to a large extent, been the history of collaborative production, and this is true in all kinds of human achievements. Take for instance a few simple illustrations:

• The "Oxford English Dictionary" (OED) was only possible through the collaborative efforts of hundreds of people from across the world. It did not bear the tag of being an open model of production, because it was created in a time when the myth of copyright backed by the power of large content owners had not engulfed the imagination of production.
• Often the grant of individual authorship renders invisible the role that a large number of people may have played in the creation of a work. For instance in the case of a film, a director is generally considered to be the author of a work but in reality a film is the product of the creative labour of a large number of people and in fact would be impossible without collaborative effort
• Hip hop has been about the ability to build on previous work by sampling and creating new works
• The world of dance is marked by a constant culture of borrowing and building on previous efforts
• Media design is constantly building upon and linking to the work of others

What was unique about the FLOSS model was that it used the copyright regime for the first time to express this aspect of collaborative production, and also afford it protection to ensure that it remained within the public domain. Having got rid of the heavy burden of the myth of copyright the challenge was then to translate the terms of the FLOSS model into other domains of cultural production. Translating the terms of the GNU GPL into other models of creative licensing which would enable people to act as collaborator/ producers rather than merely as passive users, and also ensure that there is a rich public domain of materials that people can use and build on for the future is what this pamphlet is about.

The Public Domain

We have been using the idea of the public domain. What exactly do we mean by that? For the purposes of understanding cultural production, the public domain could be understood as the body of works that we have access to, to create newer works. Thus while Shakespeare was a brilliant playwright we should also remember the fact that he drew rather liberally from various sources, from history, mythology and the works of his peers etc. as inspiration, and as sources to modify. Similarly even Walt Disney had a rich variety of courses that he could draw from to make his cartoon versions of "Fantasia", "Steamboat Willie", "Snow White and the Seven Dwarfs" etc. This public domain has also often been referred to through the metaphor of the "Commons", resources that are not divided into individual bits of property but rather are jointly held so that anyone may use them without special permission. Think of public streets, parks, waterways, outer space, and creative works in the public domain - all of these things are, in a way, part of the commons.

Open / Collaborative Production

It is as a response to the shrinking of the public domain, through stronger enforcement of copyright laws, that the open source movement and the open content movement has emerged. What are some of the benefits of an open content model, and why would people want to license their works on an open content model, rather than relying on the traditional copyright model? There may be a number of reasons and advantages for wanting to do so.

• For most artists, authors, musicians or designers who are not already established, the easiest way to make a name for yourself is by ensuring that your work is seen by a large number of people, and by a wide range of audiences, as this helps to popularize your work, and establish your reputation. Open content licenses enables your work to circulate in a much wider manner than if there were restrictions on the work. Apart from making you more visible, this model of distribution also enables you to either obtain more shows, more work, sponsorship etc.
• Since the model of distribution relies, more often than not on a peer to peer system of sharing, it cuts out significant costs in terms of a middleman, an agent or a gallery who act as distributors. This is a system in which people can often contact the content creator directly rather than having to go through an institution or an individual who mediates on behalf of the content creator. Often creators who are struggling to establish themselves have no bargaining power with publishers, record companies, etc. since they do not have the ability to distribute on their own. The open content model combined with the powers of the internet are a great way for someone to establish themselves without having to rely on the big business model of authors and artists.
• More often than not, people do not create content only for monetary reasons. They do it to express themselves, to share their works, to get an idea across etc. In such cases, by licensing the work through an open content license, you have the ability to reach out to a much larger group of people as people can freely use your work, and distribute your work without the fear of violating your copyright. In an era where copyright litigation costs an average of $250,000* you can well imagine that people would feel more comfortable using freely available open content.
• But leaving aside the romance of altruism, assuming that you do want to make money out of your work, it is important to remember that free/ open content is not inconsistent with the ability for you to charge for your work. The licensing model allows enough flexibility for you to determine the manner in which you will license the use of your work. For instance while you may allow for academic uses and other not-for-profit use, (or even charge for them) you could reserve the right for any commercial usage, so that any person wanting to make commercial use of your work (for example bring out copies of a book, or use a design on a t-shirt or website, Thus you will still be able to charge for such usage.
• There are also cases of relatively unknown part time musicians such as Allan Vilhan from Slovakia, working under the name "Cargo Cult" who made their music available online for free, and receive donations from people who have enjoyed the music (this and many similar stories are available at the Creative Commons website http://creativecommons.org). Similarly Free Software developer Jaromil made photos that he had taken in Palestine available for free online, and has been approached by people who want to use them and were willing to pay for the usage. The internet model of distribution may seem like a disaster for large content companies or already established artists (even that is contestable) but for emerging artists or creators who do not have access to a great deal of capital investment, the internet is truly a godsend in terms of its ability to reach out to a large number of people at a relatively low cost.
• There have been some recent examples of how people make their works available for free online, and yet this has not affected their offline sales. Science fiction author Cory Doctorow took advantage of this trend when he released an online version of his book, "Down and Out in the Magic Kingdom" simultaneously with a print version of the book. The print version has done very well, and in fact it could even be argued that the print version has sold better as a result of the book having been distributed for free. It is very similar to allowing people to browse through a book in a shop before they decide whether they want to buy it. The lead was recently followed by Lawrence Lessig, the high priest of open cultures, who released a free online version of his book "Free Culture" along with the print copy. Within a few weeks, there were various adaptations of the work, in the form of posters, audio books etc which were also available for downloading.
• More and more people are realizing the value of collaborative content creation. By making their works available not only to a larger community of users but also a larger community of creators, they also realize that there is a value that is added to their work. Most open content licenses demand a detailed recording of the process of authorship, and every use of your work is also at the same time a record of your authorship. There is therefore a very significant attempt to move away from the binaries of originals and copies, to the idea of a rescension, a version or a re-mix which is neither a copy nor an original but instead a work that builds on existing work and yet has an autonomy of its own.
• Some people may want to use the open licenses model for distributing their content, simply because they are tired of the monopoly of the content industry and the limitations of the system of copyright. Thus the idea of being able to contribute to an intellectual commons may seem highly attractive. Some people may be attracted by the notion of others building upon their work, or by the prospect of contributing to an intellectual commons. This idealism has not inflicted just young people who are used to an age of access, but even established stars like George Michael, who recently announced that he was not going to produce any commercial music in the future and that all of his music in the future will be available for free via the internet.
• Very often we forget that a lot of content owners especially those in the world of academia or artists who benefit from endorsements grants from public bodies, are actually producing intellectual property using public resources. In such a case it is important for us to start thinking in terms of "public intellectual property for public money".

I will leave it to you to add to the reasons for choosing an open content model. But having chosen an open content model, the next question that obviously arises is what kind of a license should I use for my work. Thankfully the situation is not as difficult as in the free software world, where there exists a plethora of licenses to choose from. The open content model is still a relatively new development, and it has also had the fortune of having to learn from the experience of the free software model, and so the range of licenses are relatively manageable. Having said that for a layperson it can still be a little difficult to navigate through these various licenses.

This brief guide has been created to help you navigate through the world of open content licenses. Whilst the final decision will have to be yours, we hope that this little map helps in understanding the options and advantages of such a way of working.

[*] On the average cost of defending an IP suit - in the US and in other countries: There are conflicting statistics on the same, and there are a number of places where the numbers differ. For instance Dan Ravisher of the Public Patent Foundation is cited as stating that such a case costs one million dollars. (From: Robin Arnfield, "Linux Patent-Infringement Threat Surfaces", CIO Today, August 2nd 2004, http://www.cio-today.com/story.xhtml?story_id=26129). In "Free Culture", (pg 51) Lawrence Lessig states that copyright cases routinely cost $250,000.

-- RoshoLinux - 23 May 2006