This blog post is part of my contribution to the open online course
Introduction to Openness in Education.
Copyright
At the heart of the various forms of “open” lies the concept of intellectual
property: who owns it, who can use it and for what.
A physical object, such as the computer I’m writing this blog post on, is in
one place at a time, and its ownership is pretty clear cut: I paid for it and
it’s in my house, and if you took it without my permission we’d call that
theft.
Things get trickier when you start talking about creative works. If I write a
piece of music and you make a copy, I still have the piece of music, but so do
you. I can take a photograph of a painting by Degas, and it stays hanging in
the gallery, but in some sense I have a copy that I can enjoy independently of
the original work.
If this situation goes unchecked, then there’s not a lot of incentive to become
an artist, or a composer, or a writer. Even if you charge for your work there’s
nothing to stop me buying one copy and then selling hundreds, for which you
would see no profit whatsoever.
Under most modern legal systems, the concept of copyright exists to right this
imbalance. It does this by allowing the creator of a work the opportunity to
exploit that work in whatever way they see fit, effectively creating a
monopoly.
As the creator of a work, it’s still possible to grant certain rights to third
parties, and this is done by the granting of licenses. This is the mechanism
which allows you to “sell” rights to a work in exchange for money or some other
consideration.
Fair use/fair dealing
If you were to film an interview in the high street of your town, you might
think that it would be difficult to infringe copyright in any way. If you’re
not infringing copyright, you don’t need to pay anyone for a license. Yet if,
say, a TV set in the background was showing reruns of The Simpsons, then you
could well be in from a visit from lawyers representing the Fox Broadcasting
Company.
Some jurisdictions include a concept of “fair use” (or fair dealing in the UK),
which permits such incidental reuses under a specific set of circumstances.
This can make documentary-making, for example, much easier.
However, many organisations (Fox being a common example) are quite happy to
threaten legal action and demand that you pay tens or hundreds of thousands of
pounds(/dollars/euros/etc.) for a license, even if you may in fact be covered
by fair use rules. They are able to do this because most people are unaware of
their legal rights, or even if they are do not have the money to fight the
ensuing lawsuit.
Even if the law gives you a fair use right to use some work or other, other
organisations to which you might sell your own work may not be so forgiving.
Because of the litigation culture surrounding copyright, a lot of organisations
take a very paranoid approach and insist on rights being cleared and licenses
purchased even if they’re not strictly necessary.
Orphaned works
The situation becomes worse when the holder of the rights that must be cleared
cannot be found. This usually happens when no contact details can be found for
the creator of a work, or when those that can be found are out of date. In many
cases, it’s impossible even to know whether the rights holder is still alive,
and works like this are referred to as “orphaned works”.
In the early days of copyright this would not have been a problem: for
copyright to exist it was necessary to the creator to explicitly assert their
rights, and to renew them periodically.
However it is now the case in the US and the UK that copyright automatically
exists for the lifetime of the creator and for 70 years after their death. If
the creator has passed away, their estate still owns the copyright, but may be
impossible to trace until they discover the breach.
For this reason, it is almost impossible to safely use orphaned works — if
you do, you do so at your own risk.
Open licensing
As you can see, copyright creates incentives to create, but the way it’s
currently implemented can also have a chilling effect on certain types of
creation, especially those that involve mashing up existing content.
There’s not a lot most of us can do about the depredations of Fox and their
ilk, other than lobbying our MPs for a change in the law. But thankfully we can
make it easier for others to make use of our own works.
Open licensing gives creators legal tools to relinquish some or all of their
rights over a piece of work, in the interests of supporting the creativity of
others.
Creative Commons was set up to provide a set of
open licenses which creators can use to make it very easy to understand what
can and can’t be done with their work.
The key terms which can be applied by the standard Creative Commons licenses
are:
-
Attribution: the creator of the work must be acknowledged in any works
which incorporate it; -
Share-alike: the work can only be used if the resulting work is
released under the same license; -
Non-commercial: the work may only be used if the user doesn’t profit
financially from doing so; -
No derivatives: the work may only be redistributed unchanged from its
original form.
By combining these terms, it is possible to specify exactly what rights you
want to retain on each individual work.
In higher education, we often find ourselves needing a photo or video to
illustrate a point in a class or at a conference, or increasingly in a blog
post (like this one). Thanks to Creative Commons, finding content to be used
legally in this way is as easy as doing a simple web
search — no more excuses!
Conclusion
This was intended to be a short blog post, and it’s already longer than I
intended! There are a whole raft of other important issues, such as the
creeping extension of copyright terms, which I haven’t had space to cover, but
hopefully I’ll come back to those some other time.
For now, I hope you’ve got a good idea of why open licensing is necessary and
how you can apply it to your own creative works. It’s worth noting that this
whole blog is released under a CC license — just scroll to the bottom!
In writing this post, I made heavy use of this open licensing
material, which I encourage you to
take a look at if you want to learn more.
Photo credit: Ioan Sameli via
Flickr