[OpenGLAM] Wellcome

[Sam Leon]

Dear All,

I would like to thank you all for contributing to such a lively and
interesting debate.

This is just to let you all know that the OpenGLAM Advisory
Board<http://openglam.org/advisory-board/>will be meeting remotely to
discuss the issue of CC-BY licenses for public
domain content with the hope of offering some guidance and leadership on
this front.

Please do continue to share your thoughts on this thread!

All the best,
Sam


On 27 January 2014 02:07, heath rezabek <heath.rezabek at gmail.com> wrote:

> I am guessing that, so long as institutions and organizations continue to
> dedicate resources (staff time and effort, mainly) to the process of
> rendering a pd artifact into a form useful for others not holding the
> object, they will be compelled to seek ways to justify that expenditure.
>
> Applying a license to their rendering which directs recognition of the
> effort back to the organization is perhaps not ideal, but until the world
> is run by robots, free from human priorities or external pressures, (some
> say soon!) this muddling-along may well continue.
>
> I am guessing.
>
> I still think that an annual award given to organizations doing it ideally
> would be the best approach.  A version which had a Gold/Silver/Bronze
> depending on whether the effort passed on PD status or used a more
> compromising license could be nice, though a 'Winner Takes All' approach
> could highlight the ideal you're championing most fully.
>
> - Heath
>
> On Friday, January 24, 2014, Laurel L. Russwurm <laurel.l at russwurm.org>
> wrote:
>
>>  *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
>>
>>
>
> --
> Heath Rezabek // labs.vessel.cc
>
> Long Now Foundation (Intern) // Manual for Civilization Project //
> longnow.org
> Open Knowledge Foundation // Texas Ambassador for the OKFn // okfn.org
> Icarus Interstellar // FarMaker Team // icarusinterstellar.org
>
>
>
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-- 

*Sam LeonProject Manager  | skype: samedleon  |  @Noel_Mas
<https://twitter.com/noel_mas>The Open Knowledge Foundation
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