Why We Still Can't Really Put Anything In The Public Domain… And Why That Needs To Change
from the make-it-happen-now dept
More than five years ago, we wrote about just how difficult it was to actually put something into the public domain legally. For years, we’ve said that all of our Techdirt posts (where we have the right to do so) are subject to a public domain dedication, but there’s nothing specifically in the law that says how or if you can really put something into the public domain. While you can make a public domain dedication or (more recently) use the Creative Commons CC0 tool to do so, there’s no clear way within the law to actually declare something in the public domain. Instead, the public domain declarations are really more of a promise not to make use of the exclusionary rights provided under copyright.
On the “public domain day” of Copyright Week, Public Knowledge has pointed out that it’s time that it became much easier to put things into the public domain. Specifically, the PK post highlights that thanks to the way copyright termination works, even someone who puts their works into the public domain could pull them back out of the public domain after 35 years.
As you may recall, termination rights cannot be signed away, and they were designed to allow copyright holders the ability to take back their work from whomever they licensed it to for the second half of the copyright’s term. We’ve long pointed out why this is a stupid concept (while finding it amusing to see the legacy copyright industry — mainly in the music space — desperate to try to pretend that copyright termination doesn’t really exist). But they do exist and they make a true public domain declaration effectively impossible:
Copyright termination means that any license, including a perpetual public license, can be revoked. This means, for example, that contributors to projects like Wikipedia (where an original contributor continues to own the copyright to her work, but licenses that copyright under a liberal license) can revoke that license. It also means that people who transfer actual ownership of their copyrights to stewards like the Free Software Foundation can claw back that ownership.
This might be tricky in practice, particularly when it comes to licenses, since the law requires that the original author give notice to all “grantees.” Does that mean everyone who has a copy of the work, and when does the thirty-five year clock start ticking for each of them? This could be very difficult to figure out when it comes to, for example, some popular free software projects. But it introduces an unnecessary degree of uncertainty to FOSS software projects generally, to Creative Commons-style licensed works, and so on, particularly those that use a formal transfer of copyright title, where there is only one grant to terminate, instead of potentially millions.
Public Knowledge is suggesting a rather simple fix: simply eliminate termination rights for public domain licenses, and also for other types of royalty free licenses like certain CC licenses or open source licenses:
But it would be easy to fix this. One way would be for Congress to eliminate termination for “public domain” licenses, and perhaps also for some kinds of public, royalty-free licenses like the Creative Commons licenses or the GPL. This path, rather than a full-on statutory acknowledgement of copyright abandonment, would allow authors to continue dual licensing while making a public domain license identical to the public domain in all other respects. It thus provides the benefits of a dedication to the public domain without taking away all of the benefits termination is supposed to provide (in the classic case, protecting artists who sign exploitative contracts with companies because they have so little bargaining power).
This is a simple fix, and because it’s so simple, don’t expect it to happen. In the meantime, more and more culture gets locked up, even when people like us try to add to the public domain.