Culture Vs. Copyright - On Licensing in Cultural Affairs

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Authoright Notice

Anatoly Volynets: Contents

Sasha Willins: Graphic Design & Editing

Ilya Volynets-Evenbach: Technical Support & Structure

Permission is hereby granted to anyone to use, copy, redistribute, or create derivative works from all the materials on the site and the site design and its elements for any purpose, as long as proper attribution in reasonable form is given to respective authors, clearly stated that all the materials are used under Authoright license, and functional link to this site and respective material on it provided.

The full text of Authoright License located at Dialogue of Cultures

On Licensing in Cultural Affairs

An author may get money in different ways. Normally all these ways work fine when the artist is famous. In other words, when the artist is widely exposed. Exposure is that magic tool, which really turns an author’s work into money.

Hence, the question really is in what way does licensing help to expose an author?

Let’s see what we have on the plate today.

Possible License Features

Today an author or another rights owner can relinquish some or all of rights granted by law and thus to license a work for the following:

• To be used freely

• To be used noncommercially

• To be used with attribution to its author or rights owner

• To be used with notification of its author or rights owner

Just as easily, these uses can be denied and respective rights kept. It is important to note that today all possible rights of use can be traded for money or sold altogether. As of today, there is no legally enforced perpetual rights although existing ones granted for rather long periods of time.

An additional feature of a unique license is licensing of the license itself. The license can be considered by its author as usable on some open terms, particularly as a basis to build upon by other authors, or it can be restricted to the highest degree possible within a copyright law.

Any license in the fields of culture known to me is a set of different features from the above list.

Effects of License Features

Thanks to the dialogues between the first graders, I got a pretty clear understanding of the real effects of the features listed above, which are as follows:

• Restrictions in use of a work (in reality, either via censorship or via publishing monopolies, patents, and other exclusive rights) shrink the market for it, put its author in a completely dependent position, limit the work’s spread, and twist its normal function in culture and society. It is particularly important to note that a work which is restricted to be built upon cannot be followed thus is effectively excluded from further development of culture until restriction term expires. All these are equally applicable to the situation when an author and his publisher are the same entity.

• Noncommercial use, if allowed, does provide some spread of the work. However, the degree to which it can do so is naturally far smaller than that of commercial use.

• Requirement of notification of use is just a light form of restriction of use.

• Unrestricted use of a work provides the most possible exposure to it. In order to translate this exposure to its author’s fame, it must be combined with mandatory attribution.

All listed-above restrictions or so-called rights can be sold, and this is the way to get money by the great majority of creators as of today. However, said sale bring considerable material incentives to a selected few. The selection least of all depends on “talentness” of the work.

Attribution, in my view, is the one and only one requirement that must be kept forever and supported by law for it is a natural and unalienable right of an author. Attribution in no way prevents any use of a work. Public use without it is an absolutely ugly practice. It is the only real stealing which may happen in the field of culture. It is neither normal nor fair, regardless of its legality and all other circumstances, including material incentives to the author.

Legal Standing

Virtually, all open licenses known to me are claimed by their developers to be based on copyright laws. These laws are extremely restrictive in terms of the use of a work of art. A rights’ holder, having all these restrictions backed by law, can relinquish some of them at will. Thus, any use of a work under an open license in a way causes the user to enter into a contract with the rights’ holder on somewhat different terms than copyright. There are some weak points in described legal positioning:

• Any license based on a copyright law lasts as long as the copyright does.

• Copyright laws provide quite a different scope of rights and restrictions in different countries.

• Cultural affairs are not regulated by copyrights only. There are about a dozen of related laws, acts, and rulings in the U.S. only.

Hence, a license, which is supposed to support the normal existence of a work of art, should somehow adjust to the above listed limitations in order to function. It seems necessary to provide backing for such a license today through some legal flexibility and put it in the very license body. This idea is reflected in the Authoright license.

Very Basic Analysis of Some Open Licenses

The above text provides a logical framework for analyzing licenses to manage cultural affairs. It is necessary to stress that the framework does not address music, songwriting, or any other specific area, but it does address, in my view, different fundamental culture-related issues. It is important for more than one reason particularly, because today, arts, sciences, and even engineering interlace each other to such a degree that it is often hard to distinguish between fields, genres and, in the end, laws applicable to a single work.

Licence Art Libre or Free Art License

Location: http://www. artlibre.org/licence.php/lalgb.html

Excerpts

Knowledge and creativity are resources which, to be true to themselves, must remain free…

This work of art is subject to copyright, and the author, by this license, specifies the extent to which you can copy, distribute and modify it…

You can freely distribute the copies of these works, modified or not, whatever their medium, wherever you wish, for a fee or for free, if you observe all the following conditions: – attach this license, in its entirety, to the copies or indicate precisely where the license can be found, – specify to the recipient the name of the author of the originals, – specify to the recipient where he will be able to access the originals (original and subsequent). The author of the original may, if he wishes, give you the right to broadcast/distribute the original under the same conditions as the copies…

This license is subject to French law.

Comments

The Open Art License contains the following major necessary features for normal functioning of a work of art:

• Freedom of use: creative, commercial, and non-commercial

• Mandatory attribution to the author

• It is not limited to a specific cultural area.

• It automatically applies to derivatives of a work licensed under Free Art License.

• If the rights to a work are bought from the author, the Free Art License becomes invalid (though this is not openly stated in the license).

• The license text itself is not copyrighted thus can be freely used to build new licenses upon it in all countries where copyright is not automatic.

Limitations embedded in the license are as follows:

• The legal basis for this license is copyright law only.

• It relies on French law only.

• It does not offer incentives to a publisher and sponsor of the work and, consequently, limits the author’s incentives.

EFF Open Audio License

Location used to be at: http://www.eff.org/IP/Open_licenses/eff_oal.php, but the license text is not there anymore. Here is an archive page referring to the license: http://w2.eff.org/effector/HTML/effect14.08.html#II

Excerpts

EFF’s Open Audio License provides a legal tool… providing freedom and openness to use music and other expressive works in new ways. It allows artists to grant the public permission to copy, distribute, adapt, and publicly perform their works royalty-free as long as credit is given to the creator as the Original Author…

The aim of this license is to use copyright tools to achieve copyright’s stated objectives of spreading knowledge and culture while preserving incentives for the author…

Original Author irrevocably and perpetually grants to the public authorization to freely access, copy, distribute, modify, create derivative works from, and publicly perform the work released under this license in any medium or format, provided that Original Author attribution be included with any copies distributed or public performances of the work, as well as any derivative works based on the work, as further described below.

Civil Liberties Unrestricted. Nothing in this license is intended to reduce, limit, or restrict any fair use, the first sale doctrine, or the public side of the copyright bargain under copyright law, or to in any other way limit any rights bestowed under consumer protection or other applicable laws…

Comments

The following are some advantages of the license:

• Freedom of use. Although, it is not directly expressed within the license, a work under it is not restricted to commercial or noncommercial use.

• Mandatory attribution to the author.

• It is not applicable to a rights’ holder that is not the author. However, sale of rights is not directly forbidden.

• The license text itself is not copyrighted thus can be freely used to build new licenses upon it in all countries where copyright is not automatic. This means, you cannot fearlessly build another license upon it in the U.S.

• It relies not only on copyright laws (country unspecified) but on fair use, first sale, and free speech doctrines, and, supposedly, on all legalities behind thereof. On the other hand, it is important to remember that such legalities can be null and void in countries other than U.S. Regarding support of the freedom of speech, it is mentioned in the aims of the license developers but not openly expressed in the “Terms and Conditions of Use” section. They may have been implying it in the fragment “or other applicable laws,” but since this is unclear, their backing of freedom of speech in this license is in question.

The following are limitations of the license:

• It is limited to a use in music-related areas only.

• It does not offer incentives to a publisher and sponsor of the work and, consequently, limits the author’s incentives.

• There is a contradiction in the text when the license grants perpetual rights to the public while it can only last as long as copyright does.

GNU General Public License

Location: http://www.gnu.org/licenses/gpl.html

Excerpts

Copyright © 1989, 1991 Free Software Foundation, Inc.

Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed.

GNU General Public License is intended to guarantee your freedom to share and change free software — to make sure the software is free for all its users…

When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish)…

We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software…

Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that re-distributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone’s free use or

not licensed at all…

This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License…

Activities other than copying, distribution, and modification are not covered by this License; they are outside its scope…

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License…

Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions…

If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License…

If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License…

This General Public License does not permit incorporating your program in proprietary programs.

Comments

The following are advantages of the license:

• Freedom of use. Commercial and noncommercial without notification of use is directly expressed.

• Mandatory attribution to the author and rights holder. This, in fact, translates into incentives for authors and their sponsors as well.

• The license automatically applies to virtually all derivatives from GPL-licensed work, which ensures advantages to the public and right holders to spread.

The following are the limitations of the license:

• It is limited to use in software production only.

• It is based primarily on a copyright law although acknowledges possible interference with other laws, mostly with patent laws.

• It does not, in fact, distinguish between an author and his sponsor but legally protects a rights holder, following, in this respect, copyright entirely.

• The license text is copyrighted itself and thus cannot be freely used to build other licenses upon it.

Open Publication License

Location: http://www.opencontent.org/openpub/

Excerpts

The Open Publication works may be reproduced and distributed in whole or in part, in any medium physical or electronic, provided that the terms of this license are adhered to, and that this license or an incorporation of it by reference (with any options elected by the author(s) and/or publisher) is displayed in the reproduction…

Commercial redistribution of Open Publication-licensed material is permitted…

Any publication in standard (paper) book form shall require the citation of the original publisher and author…

The copyright to each Open Publication is owned by its author(s) or designee…

If any part of this license is found to be unenforceable in any jurisdiction, the remaining portions of the license remain in force…

All modified versions of documents covered by this license, including translations, anthologies, compilations and partial documents, must meet the following requirements:

1. The modified version must be labeled as such.

2. The person making the modifications must be identified and the modifications dated.

3. Acknowledgment of the original author and publisher if applicable must be retained according to normal academic citation practices.

4. The location of the original unmodified document must be identified.

5. The original author’s (or authors’) name(s) may not be used to assert or imply endorsement of the resulting document without the original author’s (or authors’) permission.

The author(s) and/or publisher of an Open Publication-licensed document may elect certain options by appending language to the reference to or copy of the license. These options are considered part of the license instance and must be included with the license (or its incorporation by reference) in derived works.

A. To prohibit distribution of substantively modified versions without the explicit permission of the author(s). “Substantive modification” is defined as a change to the semantic content of the document, and excludes mere changes in format or typographical corrections…

B. To prohibit any publication of this work or derivative works in whole or in part in standard (paper) book form for commercial purposes is prohibited unless prior permission is obtained from the copyright holder…

Open Publication authors who want to include their own license on Open Publication works may do so, as long as their terms are not more restrictive than the Open Publication license.

Comments

The following are advantages of the license:

• Freedom of use. On the other hand, the license sets freedom of choice by an author above freedom of use of his work by the public thus giving an author the right to limit use. Thus, we have “freedom to put limitations” on use, and this feature may be considered as “limitation of the license.”

• Mandatory attribution to the author.

• Mandatory attribution to the publisher. This feature makes the license attractive to a publisher and, consequently, potentially more fruitful for an author.

• The license is not limited to a specific area of culture and can be applied to any form of publication.

• It automatically applies to derivatives.

The following are limitations of the license:

• As we mentioned above, the license may be extended to be more restrictive. It is interesting to note that the license allows an author to extend it by any unique features that put no additional restrictions on use of the work. Thus, the license allows for extra nonrestrictive features and extra restrictions as well, which is a contradiction.

• It is based on copyright law only.

• It is limited to publication activity only.

Creative Commons Licenses

Location: http://creativecommons.org/license/

Excerpts

Until 1976, creative works were not protected by U.S. copyright law unless their authors took the trouble to publish a copyright notice along with them. Works not affixed with a notice passed into the public domain. Following legislative changes in 1976 and 1988, creative works are now automatically copyrighted. We believe that many people would not choose this “copyright by default” if they had an easy mechanism for turning their work over to the public or exercising some but not all of their legal rights. It is Creative Commons’ goal to help create such a mechanism.

An idea is not diminished when more people use it. Creative Commons aspires to cultivate a commons in which people can feel free to reuse not only ideas, but also words, images, and music without asking permission — because permission has already been granted to everyone…

The free software and open source software communities have inspired what is sometimes called “open content.” Some copyright holders have made books, music, and other creative works available under licenses that give anyone permission to copy and make other uses of the works without specific permission or a royalty payment. Creative Commons hopes to build on the work of these pioneers by creating a menu of license provisions that people can combine to make their work available for copying and creative reuses…

With a Creative Commons license, people can copy and distribute your work but only on the conditions you specify here. Do you want to:

• 1.Require attribution?
• 2.Allow commercial uses of your work?
• 3.Allow modifications of your work?
• 4.Or choose the following:
• 5.Public Domain
• 6.Sampling
• 7.Founders’ Copyright
• 8.CC-GNU GPL [Brazil]
• 9.CC-GNU LGPL [Brazil]

Comments

As we can see, Creative Commons offers many different licenses to choose from. Those who intend to use a CC-tagged work should truly learn which exact license is under the tag. CC developers put freedom of choice for a copyright holder above all. We just have to realize and remember what this freedom means: it is the freedom to invent and enforce or relinquish all kinds of restrictions. Thus a CC license may barely differ from copyright on one end of a license spectrum and offer ultimate, public–domainlike freedom of use on another.

The following are advantages of the licenses:

• Some freedom of use, depending on specific license. It looks like the only common feature of all exclusively CC licenses is free noncommercial use of a work of art, but this is never directly stated, so it is in question.

• It is not limited to specific cultural area.

• It looks like (but is never expressed directly) that CC licenses themselves are CC licensed thus, presumably, can be used to build other licenses upon them. However, it is not said what kind of CC license is applied to the CC license texts.

The following are limitations of the licenses:

• They can but do not necessarily require attribution to an author.

• They can but do not necessarily require attribution to a publisher.

• They can but do not necessarily allow creative use of a work, such as modifying, building upon, sampling, performing, etc.

• They are based on a copyright law only.

• They do not prevent the sale of rights.

Public Domain

Works in the public domain undergo a treatment as if there is a total Self-tuning out there. No entity using a work in the public domain owes nothing to anyone in terms of money and attribution. That is, legally, anyone can rewrite the Bible word by word nowadays and announce it his own creation. The concept of public domain is as twisted as copyright is. It is just another side of the same coin called misconception of culture.

Authoright

Location: www.culturedialogue.org/drupal/en/authoright

Excerpts

The quintessential law of the nature of culture is “Ultimate Freedom.

Essentially, a work of art is a message to everyone. This is its very nature and driving force.

Culture is the only reality where humanity develops.

Authoright License may be based on and enforced within, but not limited to the existing copyright law. Any other law or contract, whichever singularly or in conjunction with is found suitable, may be used by the author(s) to support Authoright.

Authoright License covers the use of any and all cultural phenomena.

Any cultural phenomenon may be freely used by any entity for any known or currently unknown purpose, creative, commercial or non-commercial, without limitations, permissions, control of any kind from any individual, organization, government or international agency, and so forth.

Any and all public uses of a cultural phenomenon require attribution, when applicable, to all of the following:

• Original author (s)

• Source

• Original source

• Sponsors

Comments

The following are advantages of the license:

• Ultimate freedom of use of a cultural phenomena―creative in any way, public, commercial, any other unlisted or not yet invented.

• Mandatory attribution to an author, or authors, if used publicly and/or commercially.

• Mandatory attribution to a source and original source, when possible, if used publicly and/or commercially.

• Mandatory attribution to sponsor(s).

The following are limitations of the license:

• The license was designed so that it does not bear any limitations on normal functioning of cultural phenomena.