[OpenGLAM] FW: Wellcome
Laurel L. Russwurm
laurel.l at russwurm.org
Fri Jan 24 06:34:43 UTC 2014
*There is no question about it: any decision to apply CC BY to Public
Domain material is wrong. **
*
I think most (all?) of the other people on this list are connected with
GLAMs in some way. But not me... I'm on this list because I have
become a free culture advocate over the last few years, and I like to
help spread the word when GLAMS make public domain works available to
the public. I myself am merely a member of the public who happens to be
both a creator and user of creative works.** I have spent the last
several years learning about copyright and the public domain that I
think it would be valuable to share here.
Because the Public Domain is in jeopardy, both directly (copyfraud) and
indirectly (copyright expansion, sometimes retroactively) it is terribly
tempting to fall into the trap of thinking the Public Domain can be
protected by restricting it with copyright law. But this is a faulty
argument very similar to the one that suggests free speech can be
protected by the judicious application of censorship. I am quite
concerned about the slippery slope this conversation seems to be heading
down, so my response has grown into something like an essay (which I
will probably publish after a bit more work, possibly in installments,
in one of my blogs). **
**
*Copyrighting the Public Domain*
Copyright is not a right, it is a state granted and enforced monopoly.
This is why copyright law is not uniform, and why its terms can change
and are different from country to country-- it is whatever the
government says it is.
The Mona Lisa was created long before copyright existed, so it is
unquestionably in the public domain. Anyone in the world has the right
to make reproductions or remixes of this most famous portrait, whether
for their own amusement or to sell. Just because the Musee du Louvre
owns the physical work does not mean it owns the Intellectual Property
rights. It doesn't. The public owns the IP rights because Mona is in
the Public Domain. The Louvre owns the physical work, and so has the
right to decide whether or not Mona Lisa will be displayed to the
public. The Louvre can manufacture and sell it's own copies of Mona
Lisa. But it has no legal right to prevent any one else from doing so,
or to charge royalties for any of the reproductions or remixes that have
been made over the years:
http://lunaticadesnuda.blogspot.ca/2008/08/many-incarnations-of-mona-lisa.html
http://design-milk.com/mona-lisa-remixed/
http://en.wikipedia.org/wiki/Mona_Lisa_replicas_and_reinterpretations
http://www.trendhunter.com/trends/fine-art-dolls
http://artsnapper.com/famous-artworks-emojis/#
http://www.marcelduchamp.net/L.H.O.O.Q.php
While the Louvre can not legally copyright Mona Lisa, artists who create
Mona Lisa derivative artworks are legally entitled to copyright them.
Only a rightsholder can legally assert a claim to the copyright of any
cultural work. Creative Commons licenses (and every other kind of IP
license) are built upon the foundation of copyright law. Anyone who
applies a CC license to a work is asserting copyright ownership; only
someone who holds the copyright on a creative work can give it a
Creative Commons License.
Just as the Musee du Louvre can not legally claim copyright on Mona
Lisa, other GLAMS are not legally entitled to claim copyright on the
less famous Public Domain works in their holdings. When anyone claims
rights to which they are not entitled it is wrong.
*Copyfra**ud*
When anyone claims ownership of work to which they do not own the
rights, by applying any kind of licensing restriction (including CC BY)
it is called copyfraud. The problem is there doesn't seem to be any
penalty at all for copyfraud in any copyright law in the world, which
means there are no legal consequences to those engaging in the the
practice. Unlike those who profit from the copyright monopoly, the
Public Domain does not have lobbyists.
*Public Domain*
Works in the public domain are free of copyright protection. There is no
question that the public domain is valuable resource; the Intellectual
Property rights of works in the Public Domain belong to the public.
Although differences in copyright terms dictate when modern works will
enter the public domain, works in the Public Domain exist outside the
purview of copyright law.
When the brothers Grimm collected public domain folk tales together in a
volume, the were well within their rights to apply copyright to their
remixed use. This did not entitle them to sue other people who told the
same folk tales in their own words because the original folk tale
remained in the public domain. When Disney makes a movie of the public
domain Snow White folk tale, the original folk tale remains in the
public domain.
*The Public Domain preserves and expands humanity's cultural holdings*
The public domain has traditionally been a valuable resource for
publishers and creators. Small publishers who could not afford to
publish big name authors can publish their works royalty free when they
fall into the public domain. Snow White's royalty free status was
certainly a factor in the young Walt Disney's decision to gamble years
of his fledgling company's efforts on producing the first feature length
animated film.
Back when copyright terms were reasonable, many creative works that
would otherwise have been lost were republished by startups. I own an
exquisitely illustrated picture book of Oscar Wilde's "The Nightingale
and the Rose" which might never have made it into print in spite of the
artist's talent, but for the fact that Wilde's work is safely in the
public domain. Of course it is the publisher's right to copyright this
volume, but that does not extend to suing others who create their own
books using Wilde's public domain prose.
*Attribution**and the Public Domain*
Besides copyfraud, the only thing that you can't do with public domain
work is misattribute it. Attribution does not require copyright law.
If I tried to pass off a painting by Vincent Van Gogh as my own, I would
be committing fraud.
*The Freedom of the Public Domain*
The point of the public domain is that the works in it have either never
been encumbered by copyright or they have been emancipated from
copyright. The public domain means anyone can copy, use or reuse the
work in any way they wish.
*Licensing*
As both consumer and creator, I have come to believe the copyright
monopoly would not exist in a perfect world. Since it does exist in
this one, I have decided to release my own novels under CC BY-SA
licenses in self defense. CC BY-SA has the advantage of ensuring no one
else can appropriate my work and copyright it (there is nothing more
abhorent to me than being denied access my own work by copyright law).
Licensing is built on a foundation of copyright law. In the absence of
the monopoly conferred on copyright holders by copyright laws,
Intellectual Property licenses would have no force in law.
*Attribution Licensing*
Although CC BY is understood to be the most liberal of the CC Licenses,
when I publish a work with a CC By license and someone uses or reuses my
work without properly providing attribution, the legal recourse open to
me is the full force of copyright law. Any failure to honor IP license
terms effectively breaks the license agreement; the aggrieved party is
at liberty to sue the infringer just as though the work had never been
licensed at all.
Attribution might not seem like much, it might seem like just a little
thing, but it is a restriction, and it can be onerous. J
*CC BY vs CC BY-SA*
I recently made a 2 minute film (including credits) which required sound
effects I did not have that I found on the Freesound Project. I
deliberately selected CC0 sound effects, even when there were better
ones with CC BY licenses. I did this because CC BY licenses would have
required onscreen credit, which is far too onerous for a 2 minute film.
I did in fact give the 7 creators credit on my own web page, and on the
you tube web page, because I believe that it is always important to give
accreditation, even for public domain work. But by using CC0, I relieve
anyone who shares the film from the requirement to do so. My film
itself is released with a CC BY license because that is the only free
culture license choice available on YouTube at this time. Once the
translations are complete, I will post links to my reuse on the pages
where I found the sound effects so the creators can access (and
download) the film for themselves if they like.
*Attribution Share-Alike**Woes*
In celebration of (and to promote) free culture and free software, this
year I made a digital "Happy GNU Year" card by remixing two pieces of
art that had been released under CC BY-SA licenses,. So I posted my
work on my blog, only to discover through the comments that one of the
works had been mislicensed CC BY-SA; turns out it had originally been
released under the Free Software Foundation's GPL Share-Alike License.
You would think that two Share-Alike licenses would be compatible, but
apparently these two Share-Alike licenses are currently mutually
exclusive. So now, having published the work (in multiple places) I am
now in the process of trying to reach the originating artist to request
permission to use his work in this way. The artist may well decline, in
which case I will need to break with netiquette and take down my blog
post, else I will be left in a position of infringing copyright,
something I will not knowingly do. As you can see, CC BY-SA licenses
can be quite restrictive.
*Copyfraud of Copyrighted Work*
Independent Musician Edwyn Collins was victimized when one of the music
company giants laid claim to his own independent hit song; the Music
Company had Edwyn's work taken down from his own MySpace page. MySpace
accepted the Music Company's claim and Collins had to fight to reclaim
the right to distribute his own work. Collins himself paid for the
copyfraud committed against him with his health, while the music company
(which had never had any kind of relationship with him) suffered no
repercussion at all for this case of copyfraud.
*Commercial Public Domain Copyfraud*
There are plenty of fraudsters setting up websites where they claim to
own copyright on public domain works. There was even one claiming to
represent the works of Edgar Allan Poe and Oscar Wilde... writers whose
works are well in the public domain.
*Rights and Royalties*
Possession of a physical work does not confer copyright ownership of a
work. When Terry Pratchet's publisher chose to use "The Night Watch"
for the cover of his novel of the same name, it may have reached some
accommodation with the owner of the physical painting to get a
reproduction of sufficient quality for printing, but they should not
have had to pay any royalty for the privilege (I don't know if they
did). Using a classic work in this manner helps to expose the new
generations [like my own child] to such public domain works.
*Protecting the Public Domain*
Applying license restrictions to public domain works does not protect
the Public Domain, it diminishes it. Any license applied to a public
domain work attacks the freedom of the Public Domain.
The best way to protect the public domain would be to abolish copyright,
but that isn't likely to happen anytime soon. The next best way is to
ensure that works in the public domain are firmly identified as Public
Domain works.
*
**Copyfraud and Creation*
Although primarily a writer, I also create and reuse and remix visual
artwork for various ends. Sometimes to illustrate a blog when I don't
have or can't make an appropriate image, sometimes when designing a book
cover, and sometimes just because its fun. I am one of the people who
can be hurt by GLAMS that engage in copyfraud.
For my first novel serialization blog I created character pages for many
of my characters, so I wanted to include portraits of my characters, but
they live only inside my mind. I played around with different
techniques, and finally settled on creating composite images by
combining faces from classic public domain paintings with my own
photographs.
If Museum X has applied a CC BY license to one of the public domain
works I have remixed in this way, then finds my work online (and I make
it easy for them to find me, because I always attribute the work to the
artist if it is known), Museum X can issue a DMCA takedown notice, and
force me to take down the image (and possibly my whole blog).
Even worse, because Museum X has claimed the status of copyright holder
by asserting the CC License, it could very easily sue me for my alleged
copyright infringement. Even though Museum X would be committing
copyfraud in this scenario, even though my work is legally allowed, even
though I am in the right, I would likely be bankrupt before I was able
to prove the right of it in court.
*
**Copyright Chill**and Creators*
Like the vast majority of creatives, I don't have a legal department at
my beck and call. Nor do I have the economic resources to take on an
Intellectual Property court battle that might last days, let alone years.
It doesn't make the slightest difference to me at all whether it's
Disney or the MET who decides to sue me for infringement.
Either way, they are more likely to believed because they are famous,
and I am not. But the clincher is that their pockets will always be
deeper than mine. This is why creators must always be mindful of
copyright chill.
This is also why it is terribly important that GLAMS are not supported
in believing copyfraud is ever acceptable. It's not.
That's my take on it. I hope it helps.
Regards,
Laurel L. Russwurm
On 01/23/2014 03:59 AM, Merete Sanderhoff wrote:
>
> Thanks for this input, Joris. You are totally right, SMK would not
> have been able to consider applying PD labelling without first testing
> the consequences of CCBY.
>
> I agree very much with using a pragmatic approach, combined with
> patiently communicating the fundamental principles of PD as the goal
> we are working towards.
>
> We have an internal meeting about licensing policy at SMK now, and all
> the many great comments in this string will be highly valuable for me
> to bring to the table. So thanks y'all!
>
> Merete
>
> *Merete Sanderhoff*
> *Museumsinspektør/Curator*
>
> T+45 2552 7226
>
> M +45 5074 3974
>
> Follow me on Twitter @MSanderhoff
>
> Statens Museum for Kunst
> Sølvgade 48-50
> DK---1307 København K
> www.smk.dk <http://www.smk.dk/>
>
>
> ------------------------------------------------------------------------
>
> *Fra:*open-glam [mailto:open-glam-bounces at lists.okfn.org] *På vegne af
> *Joris Pekel
> *Sendt:* 21. januar 2014 19:41
> *Til:* Jacob.Wang at natmus.dk
> *Cc:* open-glam at lists.okfn.org
> *Emne:* Re: [OpenGLAM] FW: Wellcome
>
> About CC-BY for Public Domain material. I think this is an incredibly
> difficult discussion for a number of reasons. The main one being
> copyright not being 100% clear on this, differences in countries and
> multiple interpretations.
>
> Fundamentally I agree with what has been said that it should not be
> possible to claim some form of copyright on digital representations of
> public domain works. If you agree with putting a (CC-BY) license on
> it, you also have to agree with putting a more restrictive license on
> the copy. At the same time I greatly appreciate the 'open approach'
> more and more institutions are taking. As Merete Sanderhoff's example
> shows, CC-BY was their first move into openness, leading to many more
> discussions and now a Public Domain dedication is actively discussed.
> I can not speak for Merete her institution, but I would guess this
> move towards Public Domain would have been almost impossible without
> this first step (correct me if I'm wrong).
>
> I also understand the fact that institutions really like to be
> attributed for their hard work, and that attribution even greatly
> increases the value of the public domain work as you know as a re-user
> it comes from a trusted source (see the Yellow Milkmaid case studie
> [1]). DPLA director Dan Cohen has made a great contribution to the
> debate around Public Domain/CC0 and attribution which I would all
> recommend you to read [2].
>
> In the end I would favour celebrating the open approach more and more
> institutions are taking and help them doing it right, in stead of
> opening the can of worms around vague copyright law and tell them they
> are doing it wrong. There is still a long way to go and by scaring
> people off I think the process will take much, much longer.
>
> Just my 2c in this discussion.
>
> Joris
>
> [1]
> http://pro.europeana.eu/documents/858566/2cbf1f78-e036-4088-af25-94684ff90dc5
>
> [2] http://www.dancohen.org/2013/11/26/cc0-by/
>
> 2014/1/21 <Jacob.Wang at natmus.dk <mailto:Jacob.Wang at natmus.dk>>
>
> Just to chime in.
>
> Our board of directors have just agreed to make cc-by-sa the default
> license for material that we hold the rights to and that don't fall
> into CC0, which we'll use too.
>
> I agree on this license to be the best of the cc licenses.
>
> Full steam ahead! Expect huge amounts of free content from up north -
> soon :-)
>
> Jacob R. Wang
> Head of digital
>
> National Museum of Denmark
> +45 41 20 60 25 <tel:%2B45%2041%2020%2060%2025>
> jacob.wang at natmus.dk <mailto:jacob.wang at natmus.dk>
>
>
> On Jan 21, 2014 2:50 PM, heath rezabek <heath.rezabek at gmail.com
> <mailto:heath.rezabek at gmail.com>> wrote:
> Having somewhat randomly sampled around, it indeed looks like they're
> using a range of licenses: I've spotted CC BY-NC-ND, CC BY-SA, and CC
> BY. Presumably they're trying to arbitrate either the amount of
> effort they've put in or the amount of worth they deem the images to
> possess. But it also seems fairly arbitrary.
>
> On a philosophical level, I agree that these sorts of images should be
> decreed CC0. On a pragmatic level, I accept that worktime and nominal
> resources were invested into conversion of the work, adding value
> which they're choosing to license. On a personal level, I see CC
> BY-SA to be the best of the CC licenses, and the others to be either
> unacceptably restrictive or unacceptably loose.
>
> But one thing is clear; another large body has been released with
> heterogenous CC licensing, which adds weight to that precedent for
> future organizations deciding what to do.
>
> - Heath
>
>
>
>
> On Tue, Jan 21, 2014 at 7:39 AM, Paul Keller <pk at kl.nl
> <mailto:pk at kl.nl><mailto:pk at kl.nl <mailto:pk at kl.nl>>> wrote:
> i do not think that i would agree that this is a good thing, but i do
> not really need to since the works are available under CC-BY and not
> CC-BY-SA
>
> see
> http://blog.wellcomelibrary.org/2014/01/thousands-of-years-of-visual-culture-made-free-through-wellcome-images/
> for the announcement and here for an example:
> http://wellcomeimages.org/indexplus/image/V0002158.html
>
> also it appears that for some of the images such as the one featured
> on the announcement page they have however chosen a more restrictive
> license (CC-BY-NC-ND) such as the image featured on the announcement
> page. see at the bottom of this image page:
> http://wellcomeimages.org/indexplus/image/L0019305.html
>
> if you accept the argument that they have copyright in the
> reproductions then you need to accept any license. this is the problem
> with being ok with them applying a cc-by license. if you accept that
> then you accept that they have copyright in the reproduction and then
> you should also be ok with CC-BY-NC-ND or © all rights reserved.
>
> /paul
>
> On 21 Jan 2014, at 14:28, heath rezabek <heath.rezabek at gmail.com
> <mailto:heath.rezabek at gmail.com><mailto:heath.rezabek at gmail.com
> <mailto:heath.rezabek at gmail.com>>> wrote:
>
> > Whatever the reason, given that PD remain subsequently open to being
> re-locked in, I am actually glad to see CC BY-SA used. At the least,
> the SA licenses are the only ones to even attempt to ensure that the
> material continues to be adaptable.
> >
> > Disney turned an early career at re-locking PD folktales into a
> media empire. They wouldn't touch something that was CC BY-SA.
> Purity aside, that thought experiment comes up in favor of CC BY-SA
> to me.
> >
> > - Heath
> >
> >
> >
>
> > On Tue, Jan 21, 2014 at 6:58 AM, Paul Keller <pk at kl.nl <mailto:pk at kl.nl><mailto:pk at kl.nl
> <mailto:pk at kl.nl>>> wrote:
> > Dear Doug,
> > thanks for the quick reply! i have heard this a number of times, but
> i have also heard a number op people disputing this. Now i am not
> really familiar with UK law (and how 19th century court cases
> influence things like copyright) but it would really great if someone
> give a fuller explanation
> > of why there is copyright in these reproductions (or point us to one).
> >
> > That being said the fact that the welcome library has these rights
> does not mean that they need to license them (in the form of a CC-BY
> license). Instead the could apply a CC0 statement that would strip the
> reproductions of the rights that apply to the resolution and put them
> into where they belong: in the Public Domain.
> > best, Paul
> >
>
> > On 21 Jan 2014, at 13:53, Doug Rocks-Macqueen <doug at landward.org
> <mailto:doug at landward.org><mailto:doug at landward.org
> <mailto:doug at landward.org>>> wrote:
> >
> > > Sorry should have sent this to the list-
> > >
> > > It might be a weird quirk of UK copyright law. If someone, for
> example a Museum or Library, takes digital photos of painting that is
> in Public Domain they technically own copyright to the photo. Even
> though that photo is an exact replication of the painting.
> > >
> > > It is from an 1800s court case about the "sweat of the labour" and
> the effort one takes to make a replication.
> > >
> > > This means in the UK museums own the copyright to hi-res images of
> works that they have taken.
> > >
> > > So they technically they are adding CC to the digital works not
> the under lying images.
> > >
> > > That might explain why they needed to add CC, for UK copyright
> because they are in the UK.
> > >
> > > It is also more clear to people who don't know about copyright and
> might not know that an image is in Public Domain.
> > >
> > > Doug
> > >
> > > > Date: Tue, 21 Jan 2014 13:41:43 +0100
>
> > > > From: mathias.schindler at wikimedia.de
> <mailto:mathias.schindler at wikimedia.de><mailto:mathias.schindler at wikimedia.de
> <mailto:mathias.schindler at wikimedia.de>>
> > > > To: jpekel at gmail.com
> <mailto:jpekel at gmail.com><mailto:jpekel at gmail.com
> <mailto:jpekel at gmail.com>>
> > > > CC: open-glam at lists.okfn.org
> <mailto:open-glam at lists.okfn.org><mailto:open-glam at lists.okfn.org
> <mailto:open-glam at lists.okfn.org>>
> > > > Subject: Re: [OpenGLAM] Wellcome
> > > >
> > > > 2014/1/21 Joris Pekel <jpekel at gmail.com
> <mailto:jpekel at gmail.com><mailto:jpekel at gmail.com
> <mailto:jpekel at gmail.com>>>:
>
> > > > > Dear all,
> > > > >
> > > > > For those of you not on Twitter, yesterday the Wellcome
> Library announced
> > > > > yesterday that they have made over 100,000 high resolution
> images of
> > > > > manuscripts, paintings, etchings, early photography, and
> advertisements
> > > > > available using a CC-BY license.
> > > >
> > > > Thanks for the link. I am still a bit unsure how a CC-license can
> > > > apply to works that are already in the public domain. In practice,
> > > > people might feel obliged to attribute the source by their own
> > > > editorial standards.
> > > >
> > > > Mathias
> > > > _______________________________________________
> > > > open-glam mailing list
>
> > > > open-glam at lists.okfn.org
> <mailto:open-glam at lists.okfn.org><mailto:open-glam at lists.okfn.org
> <mailto:open-glam at lists.okfn.org>>
>
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> >
> > --
>
> > Heath Rezabek // labs.vessel.cc <http://labs.vessel.cc><http://labs.vessel.cc>
> > Long Now Foundation (Intern) // Manual for Civilization Project //
> longnow.org <http://longnow.org><http://longnow.org>
> > Open Knowledge Foundation // Texas Ambassador for the OKFn //
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> >
>
>
>
>
> --
> Heath Rezabek // labs.vessel.cc
> <http://labs.vessel.cc><http://labs.vessel.cc>
> Long Now Foundation (Intern) // Manual for Civilization Project //
> longnow.org <http://longnow.org><http://longnow.org>
> Open Knowledge Foundation // Texas Ambassador for the OKFn // okfn.org
> <http://okfn.org><http://okfn.org/>
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