The Digital Public Domain E-Book

Juan Carlos De Martin (Editor)

• Herausgeber: Open Book Publishers
• Kategorie: Fachliteratur
• Sprache: Englisch
• Veröffentlichungsjahr: 2012

Beschreibung

Digital technology has made culture more accessible than ever before. Texts, audio, pictures and video can easily be produced, disseminated, used and remixed using devices that are increasingly user-friendly and affordable. However, along with this technological democratization comes a paradoxical flipside: the norms regulating culture's use—copyright and related rights—have become increasingly restrictive.This book brings together essays by academics, librarians, entrepreneurs, activists and policy makers, who were all part of the EU-funded Communia project. Together the authors argue that the Public Domain—that is, the informational works owned by all of us, be that literature, music, the output of scientific research, educational material or public sector information—is fundamental to a healthy society.The essays range from more theoretical papers on the history of copyright and the Public Domain, to practical examples and case studies of recent projects that have engaged with the principles of Open Access and Creative Commons licensing. The book is essential reading for anyone interested in the current debate about copyright and the Internet. It opens up discussion and offers practical solutions to the difficult question of the regulation of culture at the digital age.

Leseprobe

THE DIGITAL PUBLIC DOMAIN

Melanie Dulong de Rosnay is a researcher at the CNRS Institute for Communication Sciences and associated researcher at CERSA (CNRS University Paris 2) where she is Creative Commons France legal lead. In 2011 she co-founded Communia international association on the digital public domain, which she currently chairs. She works on comparative public policies for open access and on transformation of regulation introduced by distributed architectures.

Juan Carlos De Martin is a Faculty Fellow at the Berkman Center for Internet & Society at Harvard University and co-director of the NEXA Center for Internet & Society at the Turin Polytechnic (Politecnico di Torino), Italy, which he co-founded in 2006. He is a Professor of Computer Engineering, with research interests focusing on digital media processing and transmission. De Martin also serves as a member of the Scientific Board of the Institute of the Italian Encyclopedia Treccani and of the Biennale Democrazia.

The Digital Public Domain:Foundations for an Open Culture

Edited by

Melanie Dulong de Rosnayand Juan Carlos De Martin

Open Book Publishers CIC Ltd.,40 Devonshire Road, Cambridge, CB1 2BL, United Kingdomhttp://www.openbookpublishers.com

© 2012 Melanie Dulong de Rosnay and Juan Carlos De MartinThe articles of this book are licensed under a Creative CommonsAttribution 3.0 unported license available at

http://creativecommons.org/licenses/by/3.0/

This license allows you to share, copy, distribute and transmit the work; to adapt the work and to make commercial use of the work. The work must be attributed to the respective authors (but not in any way that suggests that they endorse you or your use of the work).

As with all Open Book Publishers titles, digital material and resources associated with this volume are available from our website:

http://www.openbookpublishers.com/product/93

ISBN Hardback: 978–1-906924–46-1ISBN Paperback: 978–1-906924–45-4ISBN Digital (pdf): 978–1-906924–47-8ISBN Digital ebook (epub version): 978–1-906924–75-1ISBN Digital ebook (mobi version): 978–1-906924–76-8

Typesetting by www.bookgenie.in

The cover image by John Pryere Coleman is also licensed under the Creative Commons Attribution 3.0 unported license. His work is available at: www.flickr.com/photos/26628378@N03

The book was funded by the European Union under the eContentplus framework project ECP-2006-PSI-610001

All paper used by Open Book Publishers is SFI (Sustainable Forestry Initiative), PEFC (Programme for the Endorsement of Forest Certification Schemes) and Forest Stewardship Council (FSC) certified.

Printed in the United Kingdom and United States byLightning Source for Open Book Publishers

Contents

Contributors

Foreword

Charles R. Nesson

Introduction

Melanie Dulong de Rosnay and Juan Carlos De Martin

The Public Domain Manifesto

I.Introducing the Digital Public Domain

1. Communia and the European Public Domain Project: A Politics of the Public Domain

Giancarlo Frosio

II.Legal Framework

2. Consume and Share: Making Copyright Fit for the Digital Agenda

Marco Ricolfi

3. Evaluating Directive 2001/29/EC in the Light of the Digital Public Domain

Lucie Guibault

4. Building Digital Commons through Open Access Management of Copyright-related Rights

Giuseppe Mazziotti

III. Developments and Case Studies

5. Contractually-constructed Research Commons: A Critical Economic Appraisal

Enrico Bertacchini

6. Social Motivations and Incentives in Ex Situ Conservation of Microbial Genetic Resources

Tom Dedeurwaerdere, Per M. Stromberg and Unai Pascual

7. Open Knowledge: Promises and Challenges

Rufus Pollock and Jo Walsh

8. Science Commons: Building the Research Web

Kaitlin Thaney

9. The DRIVER Project: The Socio-economic Benefits of a European Scientific Commons

Karen Van Godtsenhoven

10. CC REL: The Creative Commons Rights Expression Language

Hal Abelson, Ben Adida, Mike Linksvayer and Nathan Yergler

11. The Value of Registering Creative Works

Roland Alton-Scheidl, Joe Benso and Martin Springer

Select Bibliography of Resources Cited

A. Websites

B. Reports, Conference Papers and Working Papers

C. Books, Papers and Newspaper Articles

Contributors

Hal Abelson is Professor of Electrical Engineering and Computer Science at MIT and a founding director of Creative Commons.

Ben Adida is Tech Lead on Identity and User Data at Mozilla and a technical advisor to Creative Commons.

Roland Alton-Scheidl is founder of the Public Voice Lab, a Board Member of the International Media Association co-operative and Vice President of the Creative Industries Association in Austria. He teaches at the Vorarlberg University of Applied Sciences where he has recently established courses on media and business ethics. He can be reached at [email protected].

Joe Benso is a professional music manager, member of the International Media Association and founder of OneLoudr.com. He is teaching at Southern Illinois University and is based in Dornbirn and Nashville. He can be reached at [email protected].

Enrico Bertacchini is a researcher at the Department of Economics “Cognetti De Martiis”, University of Turin, and Fellow of the Nexa Center for Internet & Society, Turin Polytechnic (Politecnico di Torino). He can be reached at [email protected].

Tom Dedeurwaerdere is Professor at the Université Catholique de Louvain, Director of the BIOGOV Unit at the Centre for the Philosophy of Law (CPDR) and Research Associate of the National Foundation for Scientific Research, Belgium (FSR-FNRS). He can be reached at [email protected].

Giancarlo Frosio was serving as the Chief Editor and author of the Communia Final Report from 2010 to 2011, and is the Assistant Director of the LLM in Intellectual Property jointly organized by WIPO and the University of Turin. He can be reached at [email protected].

Lucie Guibault is Assistant Professor at the Institute for Information Law, University of Amsterdam. She can be reached at [email protected].

Mike Linksvayer has served as Vice President and CTO at Creative Commons. He can be reached at [email protected].

Giuseppe Mazziotti worked as an attorney and then as counsel with Nunziante Magrone in Rome from 2007 to 2011. From 2009 to 2011 he was Assistant Professor of intellectual property law at the University of Copenhagen. He is now a Fellow at the Berkman Center for Internet and Society at Harvard Law School and can be reached at [email protected].

Charles R. Nesson is the William F. Weld Professor of Law at Harvard Law School, and Founder and Faculty Co-Director of the Berkman Center for Internet & Society. He can be reached at [email protected].

Unai Pascual is Senior Lecturer at the Department of Land Economy, University of Cambridge and Professor (Ikerbasque) at the Basque Centre for Climate Change (BC3) in Bilbao. He can be reached at [email protected]

Rufus Pollock was a Director and co-founder of the Open Knowledge Foundation and Mead Fellow in Economics at Emmanuel College, University of Cambridge (until September 2010). He is currently a Director of the Open Knowledge Foundation, a Shuttleworth Foundation Fellow and an Associate at the Centre for Intellectual Property and Information Law, University of Cambridge. He can be reached at [email protected].

Marco Ricolfi is Professor of Intellectual Property at the Turin Law School and co-Director of the LLM in Intellectual Property (jointly organized by WIPO and the University of Turin), and of the Nexa Center for Internet & Society, Turin Polytechnic. He is also a Partner at Tosetto, Weigmann & Associati and can be reached at [email protected].

Martin Springer is a research manager based in Berlin and was active for Semantic Copyright Standardisation at IEEE. He is also a member of the International Media Association and can be reached at [email protected].

Per M. Stromberg is Visiting Research Fellow at the Institute of Advanced Studies, United Nations University, Yokohama. He also works as an economist at the Policy Analysis Unit of the Swedish Environmental Protection Agency. He can be reached at [email protected].

Kaitlin Thaney managed the science division of Creative Commons, formerly known as “Science Commons”, from 2006 to July 2010. She is now the Manager of External Partnerships at Digital Science, and can be reached at [email protected].

Karen Van Godtsenhoven was working on the DRIVER project at Ghent University Library and is now curator of the Fashion Museum (www.momu.be) in Antwerp. She can be reached at [email protected].

Jo Walsh has been on the Open Knowledge Foundation Board and is Project Manager at EDINA, University of Edinburgh.

Nathan Yergler is Senior Software Engineer at Eventbrite and was previously CTO at Creative Commons. He can be reached at [email protected]

Foreword

Charles R. Nesson

The public domain is the sovereign space of all citizens of the world. Like the air we breathe, it is free for all people to use, without restriction, no rights reserved. Our public ownership of this domain of knowledge should be understood as a fundamental human right to access our shared knowledge, the use of which is not the result of a grant by any specific government.

In this book, the members of Communia not only articulats this positive conception of our public domain, but also seek to make the European public domain actionable. The book defines the public domain of the European nations and studies the environment in which it operates. Most importantly, it recommends a set of actions to build and make use of that domain as an environment of shared intellectual property and multifaceted cultural heritage.

This book could not come at a more important time. In a little over a decade, technological developments have shifted information production and distribution methods throughout the world. The way we interact with information has changed radically. Names like Wikipedia, Google, YouTube and, increasingly, Europeana speak for themselves. Our public domain is a wellspring of common wealth that provides ways to share that were inconceivable just a short time ago. The potential for growth that a free and accessible public domain presents to a networked Europe, rich in cultural heritage and with such a highly educated populace, is incredible. Yet the immediate implications can be hard to grasp, and policy interventions, quite often driven by special interests, painfully myopic.

Communia bucks this trend. Each recommendation in this book addresses a genuine long-term concern. Their principle objective is to ensure a strong, free and accessible public domain. Any intervention concerning intellectual property laws will have an impact on innovation, education and economic growth for decades into the future. Communia’s proposals offer benefits for innovation, creation and societal enrichment that are not only immediate, they also grow with the passage of time. These proposals are designed to further propel the creative revolution that has been rising in the networked economy, providing the people of Europe with competitive advantage among developed nations.

Seen from the perspective of users of the public domain, the greatest legal constraint on dissemination of public knowledge is from the threat of copyright litigation. This report recommends the action of developing a digital registry for intellectual works. This is, in my view, the single most important Communia recommendation, and I would like to expand upon it.

A legal system of intellectual property in cyberspace without a digital registry makes no more sense than would a legal system of property without a registry of deeds. From a user’s viewpoint the cyber world offers access to three kinds of works: public domains works, which are legally free to use but it is up to the user to make the legal determination that the work is in the public domain; copyrighted works including information sufficient to allow the user to find the copyright holder and negotiate legal permission to use; and copyrighted works, orphaned by the absence of tracking information and therefore legally unusable. Determining the status of most works is a task beyond the vast majority of people, and can even be challenging to lawyers. For many individuals and institutions, even a 99% certainty that a work is in the public domain is not comforting, if there is still a 1% chance that use of the work could subject them to financially crippling litigation.

This ambiguity regarding the copyright status of countless works, compounded by the threat of crushing litigation if one makes a misjudgment, blights our shared common domain and cries out for a better system. To the extent that we want to have an open and accessible public domain, which is to say, to the extent that we want our public domain to be usable, a reliable digital registry is a necessity.

Communia proposes that each country — helped by Europeana and the great universities of Europe — sets up a registry by legally curating works in their nation’s public domain. Each registry should be backed by legal strength to defend its declarations. Each registry should be linked with other national registries and accessible to all countries. When aggregated, the registries will form a global consortium in support of our public domain in cyberspace, and hence a coherent force to hold litigation at bay.

Cyberspace is structured by law and engineering. Communia seeks to build its national parks. The recommendations of this report are timely, wise and important. They should be carefully studied and then adopted.

Introduction

Melanie Dulong de RosnayJuan Carlos De Martin

In a context of extension of copyright duration and scope, the public domain is at risk, and with it, the vibrant expression of our culture and democracies. A group of academic and think-tank researchers, librarians, government representatives, museum curators, copyright and human rights activists, information technology entrepreneurs and non-profits worked between 2007 and 2011 to understand the notion of the public domain. Often lacking a positive definition, this concept has been poorly represented in the public debate. The political scene, since the expansion of the Internet in the last couple of decades, has been giving a larger space to concepts of piracy, cybercriminality, technical protection, lawsuits and internet filtering, forgetting that lawful and peaceful creative activities can only take place if an unregulated space remains available around copyright protection.

A reason for the public domain to be forgotten is that copyright—initially developed in the eighteenth century as a temporary and limited monopoly granting exclusive rights to authors in order to provide them an incentive to create and disseminate their work within society—has been increasing and undermining the potential of members of the public, who can also be creators and inventors, to produce cultural wealth and economic value for the society as a whole when reusing works.

The project around this book intended to revert the definition and put back the public domain at its original position: “the public domain is the rule, copyright protection is the exception”. The foreword of this book by Charles Nesson recalls the simple yet powerful idea that the public domain belongs to the public and that no private interest should undermine it.

The citations in this introduction have been extracted from The Public Domain Manifesto, which is reproduced in full later in this volume. The Manifesto was produced within the context of Communia, the European Thematic Network, which was funded by the European Commission.1 The Communia project had several developments that were not initially planned in the grant agreement. At its beginning, neither the coordinators nor the members could have imagined the number and the nature of the activities, many of which went well beyond the scope of organizing conferences and publishing papers. As the project progressed, partners decided to work on a voluntary basis between conferences to perform public outreach.

The most emblematic output of the Communia project is The Public Domain Manifesto, which was translated in over twenty languages. In particular, it takes a broad definition of the public domain:

The public domain, as we understand it, is the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection, either because it is free from any copyright protection or because the right holders have decided to remove these barriers. It is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The public domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction—close to zero—and that all members of society can build upon it.

The Manifesto defines the public domain as including not only works for which copyright restrictions have expired, but also the space where copyright does not apply because the law foresees some exceptions and limitations. It also includes resources which are part of the commons, either because they were not subjected to copyright (such as facts, ideas, information and data) or because their authors decided to freely share them by publishing them under free and open licenses, such as Creative Commons licenses.

Another outcome of the project is that legal scholars changed their mind during the course of the almost four years of common work to define the nature of the public domain and how it could and should be protected. Librarians self-organized activities for the annual Public Domain Day which celebrates the books which have joined the public domain because copyright restrictions have ended (more or less seventy years after the death of their authors).2 The copyright term is difficult to calculate due to complex and unharmonized legislation varying among jurisdictions. Therefore, researchers and developers of the network gathered to produce Public Domain Calculators, partnering with major actors of the field, namely the Open Knowledge Foundation and Europeana, the European Digital Library Portal.3 These simple web-based applications are designed to allow the public to evaluate whether a work is in the public domain. After almost four years of activity, many members willing to pursue the activities of the network decided to form an international association based in Brussels in order to continue to educate about, advocate for, offer expertise and lead research on the public domain in the digital age.4 As a network, Communia has published hundreds of news posts and publication items on its website. Another academic book was also initiated during the course of the project, as most of its editors and authors were members of the consortium.5

This book does not intend to constitute the proceedings of a European project. On the contrary, it aims to present how a vision has been built internationally along the course of four years of meetings and collaboration among interdisciplinary experts. Starting with The Public Domain Manifesto, Communia defends a European vision of the public domain and presents concrete policy proposals to protect the public interest. Most of the subsequent chapters had a first version which was published on the project website. Some have been updated, and others have been kept in their original version, mostly from 2007 or 2008, as a testimony of the project as a process which reached the conclusion presented as the starting point of the book. Chapters were selected to support and justify the Manifesto and its policy recommendations. They demonstrate how the project developed and outline the most valuable lessons that were learned along the way. The book attempts to capture the most structured part of the output of Communia in the hope that it will represent the foundations for a new awareness in Europe and elsewhere of the role of the public domain for cultural, civic and economic development in the twenty-first century.

The first chapter by Giancarlo Frosio investigates the state of the digital public domain in Europe, and recommends policy strategies for enhancing a healthy public domain and making digital content in Europe more accessible and usable. The second chapter also contains academic articles building the legal framework of the public domain. With his Copyright 2.0 proposal, Marco Ricolfi makes concrete proposals for changes in copyright legislation to fit the digital environment in the context of the i2010 strategy. Lucie Guibault presents an evaluation of the Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the digital information society in the light of the recommendation on digitization and accessibility of material preserved by libraries, archives and museums. Giuseppe Mazziotti seeks to explore how the implementation of open access licences onto recordings and other forms of digital performance of creative works which have entered the public domain, complements the notion of digital commons.

The third section gathers developments and case studies. The first two papers of this section analyse the research commons in biological sciences. Enrico Bertacchini surveys the main economic issues concerning the emergence of contractually-constructed research commons, with a particular attention to the field of biological/genetic resources and biotechnologies. Tom Dedeurwaerdere, Per M. Stromberg and Unai Pascual study the social motivations and incentives in ex situ conservation of microbial genetic resources.

The three next chapters describe the founding principles of key institutions and projects engaged in promoting the digital public domain within research and society. Rufus Pollock and Jo Walsh present some of the concepts underlying the work led by the Open Knowledge Foundation, while Kaitlin Thaney introduces how Science Commons helps building the “Research Web”. Karen Van Godtsenhoven presents the European DRIVER project (Digital Repository Infrastructure Vision for European Research), a portal for open access scientific communication. The last two chapters present technical developments implementing the digital public domain. Hal Abelson, Ben Adida, Mike Linksvayer and Nathan Yergler developed Creative Commons Rights Expression Language (CC REL), the standard recommended by Creative Commons to the W3C for machine-readable expression of copyright licensing terms and related information. Roland Alton Scheidl, Joe Benso and Martin Springer describe good practices for online registration services of creative works.

1Communia’s project website is available at http://www.communia-project.eu; The Public Domain Manifesto is also available at http://www.publicdomainmanifesto.org.

2See the Public Domain Day website: http://www.publicdomainday.org.

3Background at http://wiki.okfn.org/Public_Domain_Calculators; application at http://www.publicdomainworks.net/api; see also http://outofcopyright.eu.

4See http://www.communia-association.org/home.

5Intelligent Multimedia: Sharing Creative Works in a Digital World, ed. by Danièle Bourcier, Pompeu Casanovas, Melanie Dulong de Rosnay and Catharina Maracke (Florence: European Press, 2010), available at http://creativecommons.fr/wordpress/wp-content/uploads/2011/05/CCiBook_printedversion_IntelligentMultimedia1.pdf.

The Public Domain Manifesto

Le livre, comme livre, appartient à l’auteur, mais comme pensée, il appartient—le mot n’est pas trop vaste—au genre humain. Toutes les intelligences y ont droit. Si l’un des deux droits, le droit de l’écrivain et le droit de l’esprit humain, devait être sacrifié, ce serait, certes, le droit de l’écrivain, car l’intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous.1

Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a public domain of freely available material than they do on the informational material that is covered by property rights. The public domain is not some gummy residue left behind when all the good stuff has been covered by property law. The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture.2

The public domain, as we understand it, is the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection, either because it is free from any copyright protection or because the right holders have decided to remove these barriers. It is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The public domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction—close to zero—and that all members of society can build upon it. Having a healthy and thriving public domain is essential to the social and economic well-being of our societies. It plays a capital role in the fields of education, science, cultural heritage and public sector information. A healthy and thriving public domain is one of the prerequisites for ensuring that the principles of Article 27 (1) of the Universal Declaration of Human Rights (“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”) can be enjoyed by everyone around the world.