Thursday, November 17, 2011

Just how public is Public Domain? and other thoughts about copyright

This piece came about in a roundabout way. I was searching for a conceptual topic for my next major post, as my current topics are mostly transit-oriented, photo-based posts of a historical rather than conceptual nature. I was then recently contacted by a fellow blogger, Tyler of I Ride The T, to write a guest post about my thoughts on public domain images, et voilà a conceptual topic was born.

Due to the differing copyright laws between the United States and other countries, I will focus on the laws of the former, because it is with them that I have familiarity.

Most intellectual property that you come across is copyrighted. The books you read, the television you watch, and the music you listen to are, with few exceptions, copyrighted by their creator. You cannot claim their work as your own, and you cannot make copies for your own profit. The originality of their work - not merely "sweat of the brow", but original intellectual or creative work - allows them to own it just as they can own a house or the deed to a plot of land. (For example, the Supreme Court ruled that a telephone directory, as simple information, could not be copyrighted.1)

But that is merely the legal situation. There is more to heav'n and earth than is dreamt of in that legal philosophy. Moral and ethical issues must factor into decisions about reuse as well. (I use "reuse" here to indicate "placing the image, in original or modified form, onto a personal site or a public site like Wikipedia").

Even if sweat of the brow is not sufficient to establish legal protection, it still can represent a substantial amount of work on the part of the person who created a work or made it available. Should there not be a "moral copyright" to recognize their work?

To properly address this question requires a more complete understanding of the legal situation in all its complications, including the various grades of copyright and lack thereof.

Limited use of copyrighted material is allowed in "fair use" situations, such as quoting a line or a paragraph from a book, or sampling a song. To qualify for fair use, a reuse must have certain value, use only part of the original, and fit certain criteria (like being for educational or personal entertainment use, and not substantially detracting from the commercial value of the original). For example, a teacher may show a video from Youtube that includes a useful lecture, or you may show a cat video to a few friends. There is no absolute standard on fair use; the United States Code only includes certain guidelines for judges to weigh in court cases.2

Additionally, some people (like myself) choose to release their work under so-called "copyleft" licenses, where a copyright still applies but reuse can be freely made under certain restrictions. A content producer can specify, for example, that they only allow noncommercial reuse; Wikipedia's license requires reusers to attribute content to Wikipedia and to release any derivatives under an identical license.3 Creative Commons, a nonprofit, is perhaps the most popular outlet for creating such free-use licenses.
The GNU Project was the first major online use of free licenses, but Creative Commons has been the most successful in bringing the idea to the public through such outlets as Wikipedia and Flickr.4

This brings up an important note: there are two types of freedom. There is gratis, where something is available for no charge. A copyrighted book, for example, can be read freely at your local library. With the exception of newspapers and porn sites (both of which often reside behind paywalls), almost everything on the internet is gratis. Libre is a much stricter meaning usage: available not only for no charge, but with no (or almost no) restriction on its use.

Some content, however, is not eligible for copyright. You can't copyright ordinary words (not that some people haven't tried), nor can you copyright a fundamental physical or mathematical equation, nor something as simple and functional as a fork or wheel. Such common, shared ideas are in the public domain; anyone is free to use them for any purpose. A person can also release their work into the public domain (in most countries), thus giving up all ownership of it forever. But the most interesting controversy is that of old works.

Under United States copyright law, almost anything published before the beginning of 1923 is now in the public domain. Thus, for example, I can take screenshots of photographs from my digital copy of an 1898 Boston Elevated Railway (BERy) publication and freely upload them to Wikimedia Commons.


1898 plan of Scollay Square Station (now the Green Line level of Government Center). Like all images on this page, this is linked from Wikimedia Commons.

That BERy annual report is completely public - it's available on Google Books as well as at the State Transportation Library. The work to make it available was done by a public agency and a corporation for the explicit purpose of making it available to all. Not only am I on solid legal ground in adding the century-old images to Wikimedia Commons, but no one is going to complain when I use the pictures. But what if an image, while in the public domain, was not published for that purpose?

Take, for example, the following picture: a 1916 map of the streetcar loop at Braves Field (now Nickerson Field here at BU):


Because the map was first published in 1916, it is in the public domain in the United States. Even though it was made available through the (presumably copyrighted) Brighton-Allston Historical Society web page, I am by law allowed to do anything I wish with it. In this case, I uploaded the image to Wikimedia Commons and added it to two relevant Wikipedia pages. But was it ethical to do so? Is it fair to take an image, one that somebody had to take the effort to scan and upload, without asking permission? Such ethical issues arise surprisingly often with public domain images.

Certain rights persist to a creator even if they have sold or transferred their copyright (with some exceptions for works released into the public domain). Authors retain such "moral rights", including the right to be attributed (or to use a pseudonym) and the right to control whether or not derivative works may be made. For example, the Monty Python troupe once successfully sued to prevent re-edits of their episodes on the grounds that they misrepresented the group's theatrical philosophy.5

In the United States, moral rights are relatively limited. The Visual Artists Rights Act of 1990 established moral rights, but only artists who create visual artworks like paintings. Its protections also ends after the author's death, unlike copyright which persists for 75 years or longer afterwards.6 They are also forfeited if the author releases the work into the public domain, or if they waive their moral rights in a contract.6

Thus, for any image in the public domain - whether by age, release, or other reason - I have full legal right to do with it whatever I want. I can make a million copies on my hard drive or my blog. I can photoshop in Jesus, Hitler, or my goldfish. If I understand the relevant legalese correctly, I could even claim it as my own.

Clearly, the last two examples are not ethical behavior. But what if it's a generally ethical activity, like adding the image to Wikipedia? Say I come across this post on Tyler's blog. He has several images scanned in from public domain sources, including that 1898 Transit Commission report. What if I didn't have access to my own copy and wanted to reuse his pictures? By law, they're free for the taking. But he put them up on the internet; do I owe him anything?

As a regular contributor to Wikipedia, I believe that the best possible free information should be available to the most people. If the primary use of an image is for such educational use, than I will upload the image without asking permission from the image hoster. If they didn't understand public domain laws or had a grudge against Wikipedia, they might take their image down, preventing it from being used on Wikipedia. (Knowing Tyler already from a hobbyist forum, I might have asked him personally if he had a higher-resolution version I could upload; however, this is an exception.) Wikipedia and Wikimedia Commons require image uploaders to specify both the author and the source, so proper credit would be given to the person who first placed it on the internet.

If the image is for my personal use, like on my blog, then I will sometimes ask permission first. Although my primary purpose is to educate, my blog does also draw attention to myself. If someone took the time to scan an old map or photograph a Da Vinci, then they deserve my respect. I certainly would not host the image myself unless they didn't want me inadvertently using their bandwidth. Instead, I would link the image so that clicking it would bring a visitor to the original host's site, and in the caption I would credit them alongside the original author. I feel that this solution combines a relative lack of difficulty for me with a tip of the hat towards the person who took the time to make the old image available.

I believe this is a moral choice to be made, and as such I am more inclined to ask permission from an individual than a group, than from a government agency. A single person is likely unaware of the concept of public domain, whereas a historical society may or may not be. The federal government, however, is perfectly aware that any document made by a federal employee during their duties is public domain unless a specific justification is given otherwise. A professional document rehoster, like a academic journal provider, will also be acutely aware of copyright law. Hence, I do not attempt to ask for any sort of permission when using a government-produced image, like this one that I took from an EPA document:



My view here is certainly not the only view. In the spectrum between the pro-copyright and anticopyright diehards, I fall in the middle, though towards the latter end. I respect an author's copyright and attempt to avoid violating it during their lifetime; however, I do not hesitate to take public domain images, and I believe that copyright should end at the author's death rather than persisting 75 years to benefit the corporate owners of their work. I strongly agree with the creator of Creative Commons and the Free Culture movement, Laurence Lessig, when he says that "This is a bastardization of the Constitution's requirement that copyright be for 'limited times,'" particularly when one considers that in 1791 the copyright lifespan was just 14 years.7

Those on the anticopyright side have a variety of views, but they center around the idea that copyright is designed to benefit publishers rather than creators and thus is fundamentally malevolent. Some, in the copyriot movement, pirate works not to save money but as conscious anticommercialism that they reasonably believe is moral.8 Their views are extreme, but certainly not unusual when considered in the context of the internet culture that, in the words of John Gilmore (GNU project co-founder and internet activist), " interprets censorship as damage and routes around it."

The copyleft movement and Creative Commons, as I discussed above, have attempted to provide a balance between public domain and full copyright. They allow creators to allow reuse of their works in different forms, thus letting them retain full credit as well as certain optional controls. I personally use a CC-BY-SA license for my blogs and images; this way, anyone can make the best use of my work as long as they properly credit it and allow others to make similar use of their work that uses mine. A major moral victory for the free-use movement occurred a few years ago when Flickr started offering the option for Creative Commons licenses on all uploads. As of right now, 207 million images on Flickr have such licenses, of which 48.6 million have licenses without noncommercial or no-derivatives terms and are thus truly free-use images. Free-use Creative Commons licenses also solve my thorny conceptual problem for images that aren't in the public domain; by using such a license, an author is giving permission to reuse without asking.

Creative Commons has been criticized by the anticopyright movement because it utilizes traditional copyright rather than working against it.8 I believe that copyright is not inherently bad, but that in its current state it hinders creativity due to the excessively long posthumous copyright extension.

I also believe that an important step towards a reduction of the ridiculous 75-year after-death period would be the voluntary relaxation of that by creators. For example, a Creative Commons-style license could be made where the piece goes into the public domain after the creator's death. However, true copyright reform is unlikely, as it must come from Congress, which has a habit of pandering to corporate interests on the subject.

Like the rest of this blog, this post is released under a Creative Commons Attribution-Sharealike-3.0 license.

Cited sources


Feist v. Rural. 499 U.S. 340. Supreme Court of the US. 1901. FindLaw. Accessed 17 November 2011.

"US CODE: Title 17,107. Limitations on exclusive rights: Fair use". Cornell University Law School / Legal Information Institute. Accessed 17 November 2011.

User:Eloquence (Erik Möller) et al (15 May 2011). "Terms of use". Wikimedia Foundation. Accessed 17 November 2011.

MNQ (3 October 2011). "Creative Commons, Lolcats, and the New Copyleft". Yale Law and Technology Blog. Accessed 17 November 2011.

Monty Python, v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir 1976). Harvard University School of Law. Accessed 18 November 2011.

"Waiver of Moral Rights in Visual Artworks". Library of Congress. 10 January 2003. Accessed 17 November 2011.

Lessig, Laurence (December 2001). "May the Source Be With You". Wired Magazine. Accessed 18 November 2011.

Joanne Richardson (Anne.Nimus), 2006. "Copyright, Copyleft and the Creative Anti-Commons". Multitudes. Accessed 18 November 2011.

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