Fair Use, Public Domain And Creative Commons: They're Not All The Same

from the important-differences dept

Here's the latest excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. We're running a bit late with these, and will have one more excerpt next week. If you want to see the first excerpt and the second excerpt, go check them out.

Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.

This particular excerpt discusses the differences between fair use, the public domain and Creative Commons


People who are well aware of how copyright ownership weighs on new creators often confuse fair use with efforts to recover and recreate the public domain, or material not (or no longer) bound by copyright ownership. Sometimes they even think these efforts are in competition. In fact, they are complementary ways to address the same general problem, as David Bollier has noted. Furthermore, enthusiasm for public domain work sometimes leads people to believe that fair use is not as useful as it is. This is because they have been drawn to public domain work by their frustration with copyright ownership restrictions, and have associated all of copyright with copyright ownership. They have not yet become aware of the flexibility and power of the fair use doctrine, and they see one side of copyright as the only side. Sometimes they simply do not have faith that copyright imbalance can be righted.

Creative Commons (CC) is possibly the best-publicized of the efforts to create an artificial public domain to compensate for the badly eroded zone of copyright-free work. It was launched by legal scholar Lawrence Lessig, who indeed was dismissive, even contemptuous, of the potential of fair use to address copyright imbalance. However, CC was not an attempt to supplant or be better than fair use. Rather it was an attempt to solve a different problem: how to allow people to give away or condition their long and strong copyright. CC licenses use the strength of owners’ rights to allow owners the leeway to release their works into an artificial public domain.

So CC creates a zone inside copyright ownership for owners who want to be generous and give their works away. All CC licenses impose some conditions, and some impose more than others. (Some people ignore this; owners of CC licenses sometimes complain that people do not honor the conditions.) This makes CC a copyright-light zone rather than copyright-free zone, and of course it does nothing (and doesn’t pretend to) to loosen long and strong copyright policy—rather, it depends upon it.

A CC license, intended to promote circulation of work, may limit it to the alternative CC world it was born into. This is precisely because it is designed to be an alternative to rather than a feature of the copyrighted environment. Many CC licenses forbid the use of digital rights management (DRM), which is standard to all commercial DVD contracts. Thus, a CC license may kill a distribution deal. Even people who depend upon CC licenses, such as the makers of open educational resources—scholarly materials of all kinds, available free on the web—still sometimes need fair use. That is because most new work refers to existing culture. When that happens, people need to exercise their right of fair use, because most work is not in the copyright-light, fenced-in zone.


Reader Comments (rss)

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    ECA (profile), May 30th, 2012 @ 9:16pm

    Who wants a big battle?

    TCM has a world of old movies.
    Anyone want to try and RIP them from their ownership??

     

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      Anonymous Coward, May 31st, 2012 @ 5:05am

      Re: Who wants a big battle?

      Actually, quite a few TCM-shown films are Public Domain!
      However, by doing "restored" versions (usually with additional footage), TCM can establish a copyright on the "new" version.
      The old, unrestored versions are still out there, and are still PD.
      But, who wants a scratchy, badly-spliced version when a restoration is available?

      Fritz Lang's Metropolis is a great example of just such a restoration!

       

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    Anonymous Coward, May 30th, 2012 @ 9:24pm

    CC0 ?

    Creative commons CCO licensing does not "impose some conditions". It's a relatively late addition to the CC licensing suite, I admit.

     

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      Karl, May 30th, 2012 @ 9:43pm

      Re: CC0 ?

      Actually, CC0 does impose the attribution restriction. They don't have a choice; most countries have "moral rights," and this condition cannot be waived, even voluntarily.

       

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        Mike Linksvayer (profile), May 30th, 2012 @ 10:51pm

        Re: Re: CC0 ?

        CC0 does the best it can to waive attribution. It certainly doesn't *impose* attribution. At worst, it doesn't successfully get rid of it. I recommend reading https://creativecommons.org/publicdomain/zero/1.0/legalcode

         

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          Karl (profile), May 30th, 2012 @ 11:25pm

          Re: Re: Re: CC0 ?

          It certainly doesn't *impose* attribution. At worst, it doesn't successfully get rid of it.

          True, but legally, "imposing" and "not getting rid of" are essentially the same thing.

          I was not trying to rag on CC, in case anyone was wondering. I fully support what they're trying to do. Just pointing out one little inaccuracy in the article. (There are many, but I'm reserving them for another comment.)

           

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            Mike Linksvayer (profile), May 31st, 2012 @ 12:01am

            Re: Re: Re: Re: CC0 ?

            Actually I think imposing (more accurately, conditioning permissions upon) restrictions are quite the same thing as granting permissions (successfully or not). Conditions can be things not inherent in copyright. DRM conditions discussed in other comments being an example. A bit more on this at http://gondwanaland.com/mlog/2012/01/31/copyleft-regulates/

            Also, I look forward to the day when someone uses a work under CC0 without attribution and gets sued by the CC0 licensor/affirmer in Europe. Really, it'll be a curiosity.

            (And I realize you're not trying to rag on CC, but don't mind if anyone does, and does so well.)

             

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              Karl (profile), May 31st, 2012 @ 12:18am

              Re: Re: Re: Re: Re: CC0 ?

              Conditions can be things not inherent in copyright.

              If those things are not "inherent in copyright," then the copyright holder has no legal basis to impose it as a condition. For example, you can't legally demand a license for a public domain work.

              But that's getting way off track.

              I look forward to the day when someone uses a work under CC0 without attribution and gets sued by the CC0 licensor/affirmer in Europe.

              Yeah, I don't see that happening either. I just wanted to make it clear what CC actually does.

              If someone thinks they can outright plagiarize a CC0 work, then it's up to people like us to set them straight. They may not get sued (and probably shouldn't), but they should at least know what they're doing is not legally allowed. Unfortunately, there's so much misinformation out there about CC, that it's not surprising that these people would be confused.

               

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                Mike Linksvayer (profile), May 31st, 2012 @ 10:25am

                Re: Re: Re: Re: Re: Re: CC0 ?

                If those things are not "inherent in copyright," then the copyright holder has no legal basis to impose it as a condition.


                Exactly why "impose" is the wrong way to think about it. Permissions can be conditioned on things that aren't inherent in copyright. That's exactly what conditions on no DRM, or requiring source revelation (GPL) do.

                If someone thinks they can outright plagiarize a CC0 work, then it's up to people like us to set them straight.


                No attribution does not always equal plagiarism, depends on context. Just to set the record straight. :)

                 

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                ChrisH, Jun 3rd, 2012 @ 11:48pm

                Re: Re: Re: Re: Re: Re: CC0 ?

                If those things are not "inherent in copyright," then the copyright holder has no legal basis to impose it as a condition.

                The legal basis comes from the fact that copyrighted works can't be redistributed without permission. The CC license grants this permission. In exchange they can attach whatever conditions they want. If you don't accept the conditions, you have no legal basis for distributing the work and you've then infringed copyright.

                For example, you can't legally demand a license for a public domain work.

                This is a different case. A public domain work is not restricted by copyright. There's no reason for you to agree to any licensing conditions because you already have all the rights that the license could possibly grant you.

                 

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          Anonymous Coward, May 31st, 2012 @ 7:31am

          Re: Re: Re: CC0 ?

          Just goes to show govt BS in action when you can't willingly give up attibution rights.

           

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        Karl (profile), May 30th, 2012 @ 11:22pm

        Re: Re: CC0 ?

        That's me, by the way, posting from my phone. Apparently Techdirt's ability to claim content has some bugs to work out.

         

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    Anonymous Coward, May 30th, 2012 @ 10:11pm

    DRM restrictions in CC license?

    The precise language this refers to is:

    When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License. This Section 4(a) applies to the Work as incorporated in a Collection, but this does not require the Collection apart from the Work itself to be made subject to the terms of this License.


    It doesn't seem to me that this ought to prevent inclusion of a CC licensed work on a DVD with the usual DRM, as long as the original unDRMed CC work is also included (e.g. on a separate data track). Are there actual examples of this killing distribution deals?

     

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      LDoBe, May 30th, 2012 @ 10:30pm

      Re: DRM restrictions in CC license?

      I don't know about whether this situation has come up. But it seems to me to be a fairly useless workaround. If CC requires a non drm copy included with drm copy then it destroys the entire point of drm altogether (delightful IMHO). And I'm nearly certain no distributor who requires drm would never allow a simultaneously transmitted copy in the clear.

       

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        Mike Linksvayer (profile), May 30th, 2012 @ 10:56pm

        Re: Re: DRM restrictions in CC license?

        CC licenses thus far don't permit DRM so long as non-DRM version is included. This is known as a "parallel distribution" option and has been rejected, but there's some small chance could be tweaked in version 4.0 of the licenses which are being developed now, see http://wiki.creativecommons.org/4.0/Technical_protection_measures

        In any case, CC licenses are non-exclusive, so the DVD publisher could get different terms from the copyright holder/licensor.

         

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          Anonymous Coward, May 30th, 2012 @ 11:52pm

          Re: Re: Re: DRM restrictions in CC license?

          You seem to be assuming that there's only one CC-licensed work involved (in which case I don't see how there could be any issues with a distribution deal in the first place).

          Suppose that someone created a commercial movie that incorporated (with proper attribution) several (CC BY)-licensed works in various ways (and let's assume not all of them are fair use). You are saying that they would not be able to commercially distribute their movie in the usual DVD format, not even if they included separate copies of all the CC BY source material? If so, please justify this based on the text of the CC BY agreement.

           

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      Karl (profile), May 30th, 2012 @ 11:30pm

      Re: DRM restrictions in CC license?

      It doesn't seem to me that this ought to prevent inclusion of a CC licensed work on a DVD with the usual DRM

      In fact, the language only states that DRM cannot be used to prevent activities that are allowed in the license itself.

      For example: if you released a DVD, encoded with the (required) DRM, you would have to make it explicit that circumventing the DRM would be legal if that circumvention is for the purposes of any activities allowed in the license. In other words, you would have to say explicitly that the DRM could be broken if you're sharing the movie non-commercially.

      Whether that holds up in court is another matter. I'm actually not even sure it's legally allowed (in the U.S.) for copyright holders to grant exemptions of the DMCA's anti-circumvention procedures.

       

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        ltlw0lf (profile), May 31st, 2012 @ 9:47am

        Re: Re: DRM restrictions in CC license?

        For example: if you released a DVD, encoded with the (required) DRM, you would have to make it explicit that circumventing the DRM would be legal if that circumvention is for the purposes of any activities allowed in the license. In other words, you would have to say explicitly that the DRM could be broken if you're sharing the movie non-commercially.

        I don't have it in front of me at the moment, but I believe this is what the 2600.org folks did when they released Freedom Downtime on DVD. If I remember correctly, the packaging said that you could circumvent the DVD encoding to copy the video for non-commercial purposes. I don't believe they added anything other than the DVD encoding that already existed as part of the authoring process.

         

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          Mike Linksvayer (profile), May 31st, 2012 @ 10:38am

          Re: Re: Re: DRM restrictions in CC license?

          There's two issues: the copyrighted work restricted by DRM, and the DRM system itself. Often the entity that can give permissions around the first doesn't control the second. But I think it is socially responsible to give whatever permissions one can to circumvent DRM given the horrible policy environment. If you look closely at GPLv3 it addresses both cases as best it can (2nd if someone is silly enough to use GPLv3 code in a DRM implementation). See section 3 of https://www.gnu.org/copyleft/gpl.html ... hopefully CC 4.0 licenses will do something along these lines as well.

           

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            ltlw0lf (profile), May 31st, 2012 @ 3:07pm

            Re: Re: Re: Re: DRM restrictions in CC license?

            There's two issues: the copyrighted work restricted by DRM, and the DRM system itself. Often the entity that can give permissions around the first doesn't control the second. But I think it is socially responsible to give whatever permissions one can to circumvent DRM given the horrible policy environment. If you look closely at GPLv3 it addresses both cases as best it can (2nd if someone is silly enough to use GPLv3 code in a DRM implementation). See section 3 of https://www.gnu.org/copyleft/gpl.html ... hopefully CC 4.0 licenses will do something along these lines as well.

            I don't believe the DVD in question had DRM beyond the easily broken DVDCSS which was required by the encoding. I am not sure though. They didn't use any DRM at all on the Freedom Downtime VCR tapes, and I seem to remember some discussion at the time (though I cannot find it with a cursory search now,) on the part from Emmanuel Goldstein about releasing it to DVD and dealing with the DVDCSS encoding as a result. They were happy to have people copy it, and even made the video available to watch online. I had bought two copies of the DVD and one copy of the VCR tape, because I wanted to let folks borrow them, as I often do, and was happy that 2600.org didn't restrict this activity when they released them (I just watched Freedom Downtime not to long ago, and the video is not dated at all...the problems discussed in the documentary are as important now as they were at the time. A good watch for anyone who is interested in the backstory of Kevin Mitnick and the government's prosecution of "cyber terrorists."

             

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    Mike Linksvayer (profile), May 30th, 2012 @ 11:15pm

    CC and other public licenses do loosen policy

    This makes CC a copyright-light zone rather than copyright-free zone,


    It's worth mentioning that CC0 gets as close as legally possible to a copyright-free zone.

    and of course it does nothing (and doesn’t pretend to) to loosen long and strong copyright policy—rather, it depends upon it.


    CC licenses only depend on copyright to the extent one views them as not contracts, which is the preferred view, but one Europeans tend to violently disagree with, and more substantially, to the extent one views their conditions as more important than the permissions they carve out. Granted without copyright or similar, those permissions would be superfluous, but in the way a bandage is superfluous if one is not wounded -- great, hardly a critique of the bandage.

    Furthermore, only under a narrow and unimaginative interpretation of doing something to influence copyright policy can CC licenses (and other public licenses mostly used for software) be said to be doing nothing. The whole policy environment isn't just the letter of copyright and related law. Public licenses (more directly, projects that use them) are evidence in favor of loosening copyright, and give policymakers easy choices for effectively loosening copyright in specific areas, eg products of public funding by mandating such projects be released under public licenses, as is happening increasingly.

    A CC license, intended to promote circulation of work, may limit it to the alternative CC world it was born into. This is precisely because it is designed to be an alternative to rather than a feature of the copyrighted environment.


    CC licenses are non-exclusive and I'm not sure how they supposedly depend on copyright (see above) but are not a feature of the copyrighted environment.

     

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      Mike Linksvayer (profile), May 30th, 2012 @ 11:41pm

      ps

      It was launched by legal scholar Lawrence Lessig, who indeed was dismissive, even contemptuous, of the potential of fair use to address copyright imbalance.


      I'm sorry to hear that.

      I've interacted with lots of the people involved in CC and the range of opinions on fair use (and other exceptions & limitations; it is a global project) from respect to fangirlism. Personally, I'm for fair use maximalism. :)

      Even people who depend upon CC licenses, such as the makers of open educational resources—scholarly materials of all kinds, available free on the web—still sometimes need fair use. That is because most new work refers to existing culture. When that happens, people need to exercise their right of fair use, because most work is not in the copyright-light, fenced-in zone.


      Indeed. For reasons similar to those that make most people using public licenses for software oppose software patents, people using public licenses for other works need to demand broader fair use -- otherwise publicly licensed works must be impoverished with workarounds.

       

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    Karl (profile), May 30th, 2012 @ 11:46pm

    CC misconceptions

    I'd like to point out some inaccuracies in the article. They are understandable confusions, but unfortunately, some of the CC opponents have managed to exploit this confusion to act against CC itself.

    For example:

    Creative Commons (CC) is possibly the best-publicized of the efforts to create an artificial public domain

    This is not even close to what CC was intended to do. By labeling it an "artificial public domain," you're implying that it is without copyright; thus, artists could not e.g. restrict commercial reproduction, or limit derivative works. Of course, this is not remotely true - the vast majority of artists use NC licenses of one degree or another, and quite a few don't allow derivative works (or place limits upon them). This is certainly not placing works in the public domain.

    Rather it was an attempt to solve a different problem: how to allow people to give away or condition their long and strong copyright.

    Again, this is completely inaccurate. Most CC licenses are not designed for artists to "give away" their copyright. "Condition," perhaps, but they're still pretty strong conditions.

    People who put out CC music can still join collection societies like ASCAP or BMI (or Jamendo, which actually collects for their artists). Record labels are still legally required to give them royalties. They are still owed royalties from radio stations. They can still demand money (or outright block) some car company that wants to use their art in a commercial.

    Creative Commons is not looking to take away any of the many, many ways artists can exploit revenue streams. The only thing a CC artist can't do is sue ordinary users for sharing their art non-commercially.

    By presenting it as an "artificial public domain," you're simply providing ammo for people like George Howard at TuneCore. Considering that TuneCore is usually on the ball about these sorts of things, I'd say getting over this preconception should be of the utmost importance to CC artists.

    And considering how this article was primarily about how much the public domain and CC are not the same, I'd say it's a very glaring oversight.

     

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    Greevar (profile), May 31st, 2012 @ 12:20am

    Faith? Balance?

    "Sometimes they simply do not have faith that copyright imbalance can be righted."

    I don't need faith to conclude that copyright can be balanced, because it can't and it never was. Copyright is unnecessary, inherently impotent, and detrimental to the arts and education. Through alternative business models, artists can make a living from works that are wholly independent from copyright monopolies. The copyright law flies in the face of the fact that copying is ubiquitous and the existence of this law can never make copying any more difficult than it is today; it actually will only get easier as time goes on. No matter what balance you try to strike between the good of the public and the incentive to authors, it will never be balanced so long as authors can restrict access to works. Every instance where a work cannot be experienced by someone because price was a barrier to accessing it, is a loss for human progress. The more knowledge and culture we can disseminate to the world, the more fit we are to tackle tomorrow's obstacles and expand our understanding of ourselves. There are instances in history that show that a lack of copyright, not the existence of it, actually led to greater prosperity (e.g. Germans became better engineers through freely shared text books for nothing more than the cost of printing). http://owni.eu/2012/03/08/copyright-patent-monopoly-stifle-innovation-falkvinge/

    Some would argue that copyright is necessary to encourage authors to create valuable works that can serve to benefit us, but that's just not the case. People have been creating valuable works for centuries without one scrap of copyright protection. If people feel the need for certain expressions to exist or knowledge to be discovered, they will pursue it with or without copyright. They have before and they will again, over and over. YouTube is a strong example of how much effort people are willing to put in without any expectation of compensation. They do it purely for the need and love of it. Why did man invent the wheel? Was it because he could turn a profit (no pun intended)? No, it was because it was needed. As Thomas Edison said, "Necessity is the mother of invention." as it is with creativity too. If it is needed, it will be created. People will express themselves to fulfill a need to express. Culture and knowledge will continue despite the existence or lack of copyright laws.

    Copyright really only exists for one purpose; that purpose is to prevent anyone from gaining prosperity the same way the incumbents did, which was making heavy use of other people's works. Copyright is used by the incumbent industry to stop people from utilizing their works as a platform for new works the same way they did to get where they are today. They use up public domain sources to create their content and then they leverage copyright to prevent other entrants from using the incumbents works in the same manner (e.g. Disney's entire library works are either copied wholesale from the public domain or licensed from the original author). It's a tool to control the market and any upstarts that try to compete with the incumbents. Just like Steve Cooksey and his entanglement with North Carolina licensing, these industry regulations are often used to raise the barrier to entry and limit the number of competitors. http://www.techdirt.com/articles/20120529/10203219114/north-carolina-tells-blogger-that-providing-di etary-advice-is-illegal-blogger-tells-nc-to-read-1st-amendment.shtml

    So, to sum it up, I find compelling reasons that make me strongly believe that copyright can neither be balanced nor beneficial to society and society's progress would be best served by its extinction.

     

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      Anonymous Coward, May 31st, 2012 @ 12:58am

      Re: Faith? Balance?

      Wow, how does one address all that you said that is just plain wrong?

      Let's start at the bottom: What you can "barriers to entry" are really public safety laws. You don't want unqualified people to offer health or medical advice. It's not a barrier to entry, it's common sense. It's the same reason your taxi driver needs a special license, why airplane pilots are trained and licensed, and your doctor spent all that time in school.

      It's not a barrier to entry, it's common sense - and for the common good.

      "Copyright really only exists for one purpose; that purpose is to prevent anyone from gaining prosperity the same way the incumbents did, which was making heavy use of other people's works"

      Do tell! Are you suggesting that individuals and production companies who went into your precious public domain and used characeters and situations written about a hundred or more years ago are somehow blocking your enjoyment of those public domain works?

      Are they someone blocking your ability to make new "art"?

      Sorry, but your rant comes off mostly as a sorry creed from somone who just isn't very creative, and needs to lean on the actual performances of others to accomplish anything. That's pretty sad.

       

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        Greevar (profile), May 31st, 2012 @ 1:45am

        Re: Re: Faith? Balance?

        Let's start at the top: Public safety is a poor excuse to form licensing laws. The fact that they preclude anyone from getting into a certain field without one makes it very much a barrier to entry. What's more, is that it doesn't guarantee the quality or proficiency of the provider in question. It would be just as effective to provide a tracking system that keeps public records of a provider's performance and any legal action taken against them (similar to the BBB system). It's delusional to think that such regulation provides any actual certainty of the quality of service you will get from a licensed provider. Those that wouldn't violate the client's trust and rights regardless don't need the license and those that comply only because of the license law shouldn't have one.

        "Do tell! Are you suggesting that individuals and production companies who went into your precious public domain and used characeters and situations written about a hundred or more years ago are somehow blocking your enjoyment of those public domain works?"

        You're so off base it's not even in the ballpark. This has nothing to do with my enjoyment of the works in question and everything to do with people being able to form new works derived from current works. If you had actually read what I said rather than skimmed it and jump to a false conclusion, you'd realize that. What happens is person A makes use of public domain works and transforms it into new works. Then, person A goes to the government and lobbies to get protectionist laws in place to make sure that person B can never transform person A's works into new works in the same way person A used public domain works to launch their career. In other words, it's okay for person A to copy other people's works and profit from it, but person B best not dream of doing the same with works that person A created, as that would be unconscionable! Disney made heavy use of public domain works and then went to the government to make damn sure that it was illegal for anyone else to utilize Disney material for new works in the same way Disney utilized the public domain. That is what's wrong with copyright, among many other things.

        The only thing wrong with my comment was your inability to utilize divergent thinking. By the way, creativity is a process where one uses sum of their knowledge and experiences to transform what they know into a new expression. It is not a latent ability that only an elite few possess; it is a dedication to finding new and innovative perspectives on the world around them and to spend the time to explore those possibilities. Your inability to see the point of my comment makes clear that you yourself lack an inclination to use your creative resources to see the implications inherent in the message.

         

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          Anonymous Coward, May 31st, 2012 @ 8:55am

          Re: Re: Re: Faith? Balance?

          I for one am very happy that there is a barrier for entry into the medical field. Perhaps you get your medical help from Bob out back by the dumpster, but I prefer to deal with a licensed professional. That you would even try to argue differently shows how much you are wrapped up in all of it.

          All your A-ing and B-ing comes to the same thing: You can use the public domain work, same as they did. Their NEW work, as well as your NEW work would both be protected by copyright. But it didn't snatch anything out of the public domain. You cannot use Disney work - but you can use the same SOURCE material they did.

          Divergent thinking? How do you explain that you cannot understand the difference between a public domain work and a copyright performance or rendering? Can you not understand that a performance recorded today by an orchestra of classical music is copyright - ON THE PERFORMANCE ITSELF, NOT THE WORK.

          I see the point of your comment. You are wrong, but I see the point. Learn the difference in the various types of copyright, and you might stop ranting and start moving forward in life.

           

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            ltlw0lf (profile), May 31st, 2012 @ 10:33am

            Re: Re: Re: Re: Faith? Balance?

            I for one am very happy that there is a barrier for entry into the medical field. Perhaps you get your medical help from Bob out back by the dumpster, but I prefer to deal with a licensed professional. That you would even try to argue differently shows how much you are wrapped up in all of it.

            What do you call the guy who graduated last in his class in Medical school?

            Oh, yeah..."Doctor."

            Just because someone graduated from medical school doesn't mean they are any good as a Medical Doctor, nor any other line of work. I agree with Greevar, licensing does not make good Doctors, good Doctors make good Doctors. In my line of work, those who have certifications are actually at a disadvantage, because we tend to look at them and think "that guy is really set in his ways," or "can she think outside of the box when we need her to?" They give out those certifications like candy, and just because someone takes a test doesn't mean they know what they are talking about, especially with the quality of tests for certification (I've had people who wrote whitepapers or the software the certification authority asked a question on refute the question/answer with the authority, and in most cases, the authority says...you may be the expert in the field, but we're always right even when we are wrong.

            Licensing does not help public safety...in most cases it makes subjective restrictions on what the person in charge wants for a job, and not the objective of making sure the best person is in the job.

            I see the point of your comment. You are wrong, but I see the point. Learn the difference in the various types of copyright, and you might stop ranting and start moving forward in life.

            In your opinion (since you never provide facts or proof to back anything up,) he is wrong. However, most of us disagree. Once you give up on copyright and become a human being, you might stop ranting and start moving forward in life too.

             

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            Greevar (profile), May 31st, 2012 @ 3:10pm

            Re: Re: Re: Re: Faith? Balance?

            You missed the point again. The point is, that if people can only use what is already in the public domain and never from a more current work, then progress of the arts cannot move forward. That is my point. Art can't evolve if we're restricted to only use what is in the public domain and since the public domain hasn't expanded with new works in nearly a century, art will begin to stagnate. In fact, I think it already has begun to stagnate.

             

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    identicon
    Anonymous Coward, May 31st, 2012 @ 1:00am

    I have an issue with the term "reclaim fair use", because the levels of fair use in the US are at an all time high. The courts have permitted more and more fair use (Google thanks them for supporting their image system). We have more fair use now than any time in the history of copyright.

    What exactly are you trying to "reclaim", except perhaps to reverse the betamax case so that you can lose those fair use rights too.

     

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      Leigh Beadon (profile), May 31st, 2012 @ 6:46am

      Re:

      We have more fair use now than any time in the history of copyright.

      Sure - and also WAY more copyright than any time in the history of copyright. From opt-in 14 years on books, maps and charts to automatic 100+ years on virtually everything. Yeah fair use has expanded too - just at nowhere near the same rate.

       

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        Anonymous Coward, May 31st, 2012 @ 8:56am

        Re: Re:

        How the heck do you have more copyright? The copyright laws have not be expanded to cover more, they haven't added more than wasn't covered in the past. Time ranges have shifted, but copyright hasn't expanded.

        Can you quit lying about this?

         

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          Karl (profile), May 31st, 2012 @ 10:37am

          Re: Re: Re:

          How the heck do you have more copyright? The copyright laws have not be expanded to cover more, they haven't added more than wasn't covered in the past.

          That's exactly what they did. Prior to 1976, if you didn't register a copyright, it didn't exist; you didn't have any sort of copyright protection on your work at all. It was an "opt-in" system. After 1976, all works are covered by copyright from the moment of creation.

          And, just recently, they took material out of the public domain. See Golan v. Holder.

          They've also included things under copyright which were not covered before: architectural drawings, hull designs, etc.

          And, of course, they've expanded the definition of what constitutes infringement. One of the biggest mistakes that Congress made was criminalizing noncommercial infringement.

          So, if fair use has expanded, it's only because it needed to expand.

           

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          ltlw0lf (profile), May 31st, 2012 @ 10:48am

          Re: Re: Re:

          How the heck do you have more copyright? The copyright laws have not be expanded to cover more, they haven't added more than wasn't covered in the past. Time ranges have shifted, but copyright hasn't expanded.

          Take a look at: History of copyright law. In particular, Copyright did not exist before 1501 (beforehand, authors put curses in their books to prevent copying, which worked about as effectively.) The Statute of Anne is when modern copyright first came into being, and that was limited to 14 years. Over time, the copyright laws have expanded from 14 years to 95 or author's life +70. Also note that Copyright was a series of state laws before the Federal laws expanded it. Originally copyright covered books, maps and charts.

          Please, can you spend some time just reading the material available to you freely on line? That way you'll know that Leigh is not lying.

           

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          Leigh Beadon (profile), May 31st, 2012 @ 7:28pm

          Re: Re: Re:

          The copyright laws have not be expanded to cover more, they haven't added more than wasn't covered in the past

          Heh. Hehehehe. Hahahaha!

           

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          Jeroen Hellingman (profile), Jun 1st, 2012 @ 2:11am

          What about GATT restoration and scope creep

          In the US, the GATT restoration has put a huge body of (foreign) works under copyright that wasn't before, many of these even public domain in their country of origin. Scope creep has pushed under the copyright regime that before weren't (and that is what this article is all about, scope creep taking away fair use a snippet at a time)

          In the EU, retro-active extensions have actually brought back under copyright a lot of work that were already public domain -- and mostly put that in the hands of publishers, not the original authors.

           

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        ECA (profile), May 31st, 2012 @ 12:11pm

        Re: Re:

        So,
        What is the USA of copyright holders for HOLDING onto movies that are degrading in vaults. The USA has LOST hundreds if not Thousands of Older videos and audio tracks from the past.
        Mostly due to NO CARE/NO UPDATING the material components of their making.

        The BBC TRIED to make a Compilation of the 'Dr. Who" series. They had LOST much of the series over the years. They Had to search the World for COPIES. They had lost about 300 episodes. 1960-80's.. IF you can find a LOST copy you could make a small fortune, FROM THE COPY.

        The movies and Videos should be PUT TO USE and readily available to ANYONE that wishes to see them..They arnt.
        ---------------
        there are tech advances out there, that will NEVEr be used. mostly because of COPYRIGHTS. including parallel processing for consumers. INTELL wanted to make the 86' series multi- processing in the 90's and MS said NO.. MS dont know HOW to write/create a language to DO multi processing.
        ----------------
        If you really want to express copyright from the past...Every product thats been created with have PENNIES upon pennies Lumped on every thing made.. Every resistor, capacitor, tuner, restrictor from components to FULL circuits. You will be paying an additional $100 for every computer device for less then $1 worth of parts.

        Lets go there and see if YOU can afford a country that admits ALL copyrights from every nation, corp, person for the last 100 years.

         

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    Jeroen Hellingman (profile), May 31st, 2012 @ 1:56am

    DRM on CC-works

    I am strongly against DRM and have released some of my own works under a CC license. If CC would allow others to place those works under DRM, I would not use CC, and I would instead draft my own license that prohibits it and also prohibits the suggested work-arounds like putting them twice on the medium. DRM on my works is just a big "NO", as it is the equivalent of a declaration of war against the people you wish to communicate with.

     

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    Ninja (profile), May 31st, 2012 @ 3:51am

    Enlightening to say the least. I would say that CC is the future of copyright. Clear, transparent copyright rules and with defined duration (I foresee artist lifetime). Public Domain will always exist, inside and outside CC and fair use will still have to be applied to some more strict CC licenses. In the end, the thing we need desperately in copyright (and patents, trademark) is BALANCE.

     

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    identicon
    Anonymous Anonymous Coward, May 31st, 2012 @ 9:23am

    Declare Public Domain

    Why can't a creator just declare their product public domain? Does copyright prevent this? I understand that one loses the no commercial use and/or attribution restrictions, but if someone was actually following the 'be more awesome' paradigm, why would they care? The creator could just point out how others are taking advantage, and thank them for marketing their product.

     

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      Jeroen Hellingman (profile), Jun 1st, 2012 @ 2:17am

      Re: Declare Public Domain

      In many jurisdictions, you just can't get rid of copyright, even on your own work. You may promise not to enforce it, but your heirs might change that after you're gone, and if you (or they) ever go bankrupt, the executioner may even try to revoke the CC license you've placed upon it.

      In the Netherlands, you can even be forced to pay mechanical reproduction royalties to a collecting society for playing your own self-composed and self-recorded music at a public event.

      Probably the best you can do is to follow medieval authors and put a highly potent curse on such behavior.... copyright wasn't written for authors in the first place.

       

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    Ophelia Millais (profile), Jun 2nd, 2012 @ 2:10pm

    owners of CC licenses sometimes complain that people do not honor the conditions
    I'm not sure why this was mentioned. Certainly it's not a complaint limited just to owners of CC licenses! Copyright owners often complain that people do not honor the conditions of their traditional licenses: handing over money (and, increasingly, privacy), to whatever degree the owner demands.

     

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    ChrisH, Jun 3rd, 2012 @ 11:27pm

    CC licenses use the strength of owners’ rights to allow owners the leeway to release their works into an artificial public domain.

    So CC creates a zone inside copyright ownership for owners who want to be generous and give their works away


    Please use the correct term "copyright holder" (or author, producer, etc.) instead of "owner". I own Stargate but I'm not its copyright holder. Using the word "owner" plays right into the hands of the MPAA and their quest to redefine a purchaser as a licensee and infringement as theft.

     

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    identicon
    Rowena, Jul 6th, 2012 @ 7:28am

    Fair Use, Public Domain And Creative Commons: They're Not All The Same

    Thanks a lot for the post on Fair Use, Public Domain And Creative Commons: They're Not All The Same. This is very helpful for a newbie like me.

     

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