Of Copyright, Copyleft and the Unique Creative Commons Needs of PLEI

Unlocking Intellectual Property

Last May, Vancouver Foundation, Canada’s largest community foundation, announced it would develop and adopt an open licensing policy. This is a big deal for an organization that spends over $50 million yearly on its grantees and programs. The right policy could amplify the impact of the Foundation’s spending, and create knock-on benefits shared by other groups working for good causes. On the flip side, a flawed one could dilute the incentives (real or perceived) for grantees expected to share success, credit and perhaps even intellectual property with unknown others.

Meanwhile, Clicklaw Wikibooks, a project I administer through Courthouse Libraries BC (in collaboration with others in the justice sector), is also evaluating its open licensing framework. Our Creative Commons license meets many needs, but with the able assistance of Jon Festinger QC—a media lawyer with unique credentials for this sort of thing—we are now looking to craft a custom set of policies (terms of service, copyright policy, and Creative Commons licensing) along with better communication around open licensing, expectations, and best practices for open licensing in the public legal education and information (PLEI) sector.

While there are complexities to both Vancouver Foundation’s and our own missions, there is certainly some low hanging fruit. Vancouver Foundation’s first announcement about their own initiative offered candid reflection on some of the silliness around copyright—especially copyright notices. It cited a typical, miserly boilerplate copyright notice:

“None of the materials provided on this web site may be used, reproduced or transmitted, in whole or in part, in any form or by any means, electronic or mechanical, including photocopying, recording or the use of any information storage and retrieval system, except as provided for in the Terms and Conditions of Use, without permission in writing from the publisher.”

If you really sit with it a moment, you’ll appreciate just how sour and demoralizing that sentence is. To a layperson, it translates:

  • OK, you thought “copyright” was about “copying”. For sure that means no “reproduction” or “transmission” … but let’s be clear. You also can’t “use” the stuff here.
  • Um, no. Not even “part” of it. So that blurb you were eyeing is off limits. Copy and paste is a slippery slope!
  • Oh, and no tricks. No tracing your iPhone screen hoping we didn’t think of that. We did. See the word “mechanical”? That includes onion skin, graphite, pinhole cameras… get it?
  • OK, wait. We need to be clear here. Also no sculpting in wax or recreating this PDF in some kind of tricky beadwork… we said “any form” and “any means”. So yes, that about covers it… it’s probably safest if you clasp your hands and close your eyes until the screensaver kicks in. Then quickly unplug your computer.
  • No, wait. You’re still reading, right? Yeah, I know this is a 60 word sentence and it can feel a bit long, but here is the “…except” part and it’s a total cliffhanger!
  • Yes, there are two exceptions. OK, I won’t say they’re “Yes” exceptions exactly, but more like “Sorta maybe” exceptions. So don’t get too comfortable.
    • One is probably hidden in this here Terms of Service link (no, I’m not going to give you a clue… find it yourself, sneaky user!). OK yes, I guess the TOS is hard to read. Wait, a Gunning-Fog score of 16.3 for our license clause isn’t a good thing? (Readability scores are not really what we do here.) OK…. the TOS didn’t really say that you could do much anyway so try this next one.
    • Ask our permission. Here’s a link to a form. But get it in writing! Trust me, you’ll want to keep that parchment in a safe place in case we ever drop a writ on you.
  • Fair dealing exceptions? Not my department, sorry. I think there’s a pentalogy of Supreme Court of Canada cases out there if you want some further reading. Or try this 478 page book for the talking points.

In fairness, not many charitable groups are so severe in their warnings, but trying to cut through the “process and doubt” around copyright notices is a noble start. Vancouver Foundation hopes it will create, in their words, “opportunities for innovators and creators to access these works and realize the full potential of the content we create, in ways we’ve never anticipated, and from allies we’ve never met.” The new policy launches in January 2017, and already this month (August 2016), Vancouver Foundation has ramped up their messaging to talk at length about the specific processes advisors, staff and grantees are engaged in as the new year comes into view. 

Our work with Jon Festinger QC will tackle a curious question particular to the realms of legal information, but also health information and any other sector where inaccurate information can cause serious hardship. That concern is, “how can an organization that releases work under Creative Commons ensure that the sensitive information in that work stays up-to-date with changes in the law/research/other critical domain?”

Open Source v. Copyright Rationale

Copyright, licensing and terms of service might not be top of mind for some, but it’s important for organizations that seek to share information and amplify effects of funding to consider the consequences of a bad set of policies.

Typical copyright language can be terribly legalistic for a charitable organization who publishes only with a social aim, rather than a profit aim. I do not suggest a conventional copyright approach is inherently wrong if the organization is actually commercializing content. Reserving the right to reproduce and sell copyrighted works is sometimes necessary to continue charitable work. In such cases, the utilitarian rationale of copyright has its place. But when the rationale for copyright protection is no longer utilitarian… when the economic incentive is absent… when the purpose of a pamphlet, help guide, research study, infographic, data set, website, etc. is so clearly to be shared widely, freely and liberally… then it’s strange to have warnings that hoard copyright.

So what are the pros, cons or other factors to consider in open licensing over straight copyright controls?

It’s helpful to look at what other areas have adopted. From engineering to literature, software to music, creators in a range of human pursuits have sought to balance self-interest and public good:

  • For scientific data sets, waiving as many rights as legally possible (using CC0) makes sense for the goals of research.
  • In literature, the choice lies further right along the “copyleft” spectrum, preserving at least attribution—the right to receive credit as the original author.

In the non-profit PLEI sector it might help to have an open licensing clause that ensured the longer-term accuracy of any legal information taken from a source. But how would that work exactly? As it stands, a Creative Commons license is essentially irrevocable so long as the initial criteria was met. This means that outdated information written by and visibly attributed to one organization could be posted indefinitely to another organizations website for the world to rely on. Can an obligation to update materials for accuracy within a reasonable period be built around a Creative Commons license? Alternately, the legal code of Creative Commons licenses are also open source, so do we write an entirely new license? Or is that asking too much of contracts and licenses? Is the “freshness” of legal information a challenge better answered through technology that ensures the information is always presented dynamically (e.g. RSS or via API)?

For those who don’t know, the Creative Commons license regime is a very popular open license model. Creators who want to liberate their works are asked a number of questions about what components they need.

  1. Is attribution of the original author/creator required?
    • If no, the license is “CC0”, and released into the public domain (or near enough). End of steps.
    • If yes, the “Attribution” icon and letters “BY” are added beside the “CC” mark. Go to step 2.
  2. Do you want to stop adaptations (derivative, non-verbatim versions of your work) from being shared?
    • If no—and you don’t care at all how adaptations they’re shared—no further icon or letters are added. Go to step 3.
    • If no—but you want adaptations to be shared under an identical license to your original (i.e. not a more restrictive one)—the “Share-alike” icon and letters “SA” are also added. Go to step 3.
    • If yes, the “No Derivative Works” icon and letters “ND” are also added. Go to step 3.
  3. Do you care if others use the work or remix it for commercial purposes?
    • If no, no further icon or letters are added. End of steps.
    • If yes, the “Non-commercial” icon and letters “NC” are also added. End of steps.

The website for Creative Commons has an online tool for tailoring licenses. It asks the questions and produces the visual mark and links to the resulting legal code for each combination of license terms. The actual “legal code”, rather than the summarized terms, for each licence possibility are:

A visual representation of these licenses looks like this:
Creative commons license spectrum

Find Nate Russell on Twitter @nrusse


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