Opting Out of Berne

I’ve newly met a number of people at the annual family reunion that is Open Education 2009 (#opened09). And while you’re never supposed to single people out (esp. because doing so means you’re passing over many others), I must admit that meeting Dave Cormier has been one of the highlights of this year’s conference for me.

After the film screening tonight we got to talking… Warning: poor summary of Dave’s thinking coming up here:

Dave finds himself in a quandry – in order to share things with others he first has to claim ownership in order to assert his legal right to share (via an open license). Most of the things we “make” are really amalgams of so much that’s come before, can we even rightly claim ownership? The current system forces us to if we want to share. The fact that so many of us use an open license so readily just shows how subservient we are to the copyright overlords, and perpetuates and strengthens the very system we believe is so horribly broken.

Leigh made some related comments, but didn’t join us for our evening saunter across Van City.

Dave’s quandry got me to thinking… When your country is a signatory to Berne, everything you create is automatically copyrighted to the full extent of the law whether you desire that “protection” or not. That’s the law. Creative Commons acknowledges and accepts the law, and promotes a way of thinking that says, “Ok, you’ve copyrighted my work without my asking, and now I’m going to have to go to the trouble of formally licensing it so I can share it with others.” One person might see CC as a brilliant hack of the copyright / licensing system against itself; I can also appreciate the perspective that says our use of CC simply perpetuates the brokenness without making progress toward an improvement in the system.

But this whole problem is due to Berne. If the government didn’t automatically copyright my works for me – whether I wanted them to or not – I wouldn’t need a CC license. I could just share with people.

Now, in the US CC offers a public domain dedication (which is NOT a license). The dedication is a mechanism for undoing what Berne has done and placing your work back in an uncopyrighted state so that you can share it without the need for licensing agreements, etc. So it occurred to me tonight walking through Vancouver with Dave… if a person can undo Berne on a case by case basis using the CC domain dedication or a similar legal mechanism… couldn’t you do it with respect to all works you create from a certain point in time forward, indefinitely?

In other words, can’t an individual opt out of Berne?

What would a legal instrument that accomplished this opting out look like? Perhaps rejecting the (c) paradigm one work at a time (by CC licensing individual works) isn’t sending a strong enough message to the people who make policy. Perhaps if people rejected the entire paradigm by completely and permanently opting out of Berne someone would notice that we’re highly dissatisfied.

(Note: What would the unintended consequences be of opting out of Berne? Could the instrument that accomplished the opting out be written in such a way that, if a person occasionally decided they wanted copyright protection, they could still choose to receive it (e.g., by registering their work with the Copyright Office)?)

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  • Dave Cormier’s comment really did feel like a huge shift in thinking about copyright.

    I think that the consequences (for an individual) of opting out would not be huge. We would not have to register anything, just explicitly state that our content is licensed in a certain way.

    On the way home I was telling a friend about the session and he was stunned by the fact that work is automatically copyrighted! I think this is the view of the majority of people (at least in the Southern Hemisphere), Berne is a foreign concept to most that really has to be taught. I don’t believe that it is intuitive at all. People are creating works from a very, very young age without a thought to their IP (think about every school assignment out there).

    If you do come up with a way to opt out legally, I would gladly adopt it unintended consequences or not.

  • Sahm

    I disagree with the view that a CC license “places your work back in an uncopyrighted state”. To me CC is only a less restricted form of copyright, but nontheless someone still owns the material and has the power to decide who to share it with. If the argument that “most of the things we “make” are really amalgams of so much that’s come before” then one could not help but agree with the philosophical view of V. S. Prasad, Vice- Chancellor – Dr. B. R. Ambedkar Open University, India that knowledge is a collective social product and so it is also desirable to make it a social property. The notion of copyright to me emanates from individualistic societies. Within collectivist societies, knowledge has always been seen as a public good, rather than a source of private profit.Free must mean free in the total sense of the word and not just a limited sense.

    Sahm Nikoi

  • Your friend’s perspective is enlightening. At the same time, though, opting out of Berne would result in less freedom, not more. Your work could be co-opted by anyone, with no recompense, and could easily have a transformation or two applied to it to make it an original work — and, thus, copyrightable.

    A CC-By-Sa license, on the other hand, preserves your freedoms, not just to do what you like with your work but to have continued access to the common pool of community creativity. That’s because it mandates that those who receive also must give, and keeps things from being transformed and then copyrighted. If there is to be a default, I would prefer that it be this.

  • How do you identify an original thought? Are thoughts my ideas anyway, or just a remix and extension of the thoughts of others? If I do not publish my thought is it mine or the first person to publish it?

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  • Absolute pleasure having these conversations with you David. I’ve been thinking about this and re-reading it. It does feel like it makes more sense to opt in then to opt out on a case by base basis.

    I think this blends together with some of our other discussions re: the means of production. And, interestingly, the complexity of production. It does, in a sense, make sense for every novel to have some kind of license on it in the 19th century. The amount of work that went into publishing one and the lack of ability to track illegal copyists might make that necessary… i dunno. For now, the bar on production is very, very low. Opting in seems to make more sense.

    Huh. i need to do more reading on how they decided to do this in the first place.

    Formally opting out does sound appealing though.

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  • You seem to be chasing two distinct objectives, here, and I think they’ll have very different requirements and expectation of success.

    If it’s your goal to ensure that the things you yourself create are not “Berned,” I wouldn’t think it would be so hard, just some sort of blanket declaration of your intent, filed somewhere publicly. It would be nice, though, to repeat or reference the declaration within each work, just so people know where they stand, and doesn’t that get you pretty much right back into the CC space?

    If, on the other hand, it’s your goal to change the laws, to get the attention of those who make laws, then you’re going to have to do the politics: contribute the money and spend the time nagging the elected representatives, whip up the grass-roots support, sufficient to out-shout the publishing corporations who’ve always been the main creators, advocates, and beneficiaries of copyright. A tall order.

  • I’m glad you had a great time at OpenEd, and in your conversations with Dave Cormier, but it seems to have left you a little fuzzy on what copyright is and how it works.

    Firstly, as I understand it, no, an individual cannot “opt out of Berne”. However, IANAL, just an educated bystander.

    Berne is a convention where signatories agree to respect each others laws on copyright. The signatories are nations, not individuals.

    The copyright properties, while advocated in Berne, are actually established and enforced through the legislation of individual nations. Copyright is not the same from country to country, which is why there is a 70 year term in one place and a 50 year term for the same work in another.

    What Berne really does is establish a set of base principles that should inform the legislation of each individual country.

    To start with, copyright is the exclusive right to make copies of a work for a limited time, known as the term. This right is restrictive, in that it gives the creator of a work a period of time in which they may profit from their work and no-one else can without their permission. This permission may involve money changing hands, but that is not a requirement or mandated by any copyright regime I am aware of. There are some limited exceptions to this, usually around quoting small sections, and for educational purposes. The exceptions also vary from country to country, which is why you have Berne to serve as a bridge of understanding and mutual respect.

    Your understanding of Creative Commons also appears incorrect to me. Public Domain is not a creation of CC – it’s part of copyright. After the term of copyright expires, the work passes automatically into the public domain. What Creative Commons does is it allows you to set up permissions for your work during the term of copyright so that people know what they can do with it and what extent they can make use of it without having to bother you.

    CC is, as you say, an elegant hack on copyright but it’s a hack that requires the underpinning of copyright to work at all. You can’t apply a CC licence to a work that is already in the public domain (say, a novel like “Oliver Twist”) purely because the term of copyright in that work has already expired.

    The PD “licence” you refer to is, in fact, the author (or copyright holder, and they might not be the same person) “opting out” of copyright by publicly forgoing their right to exclusivity and control over a particular work, by placing it “in the public domain”. That means that I can pick the work up, publish it for money, and not pay a cent to the original creator of the work. The PD graphic available from CC is recognition of such a circumstance – but the right to create such a circumstance is inherent in copyright.

    Some people refer to CC enthusiast as anarchists who want to get rid of copyright. That could not be more wrong – CC needs copyright to exist, like a fish needs water.

    Next, an individual cannot opt out of Berne, because they are not in Berne. Copyright, for an individual author/songwriter/painter/etc., is part of the law of they country they live in. You can’t opt out of the law of the land (well, you can, but we call those people “criminals”).

    Berne is not the problem you seem to think it is. Copyright existed before the Berne Convention, in many countries and in as many systems. Berne was an attempt to bring some coherence to these systems. The United States was not a signatory to Berne until 1989, but still had a strong copyright regime. Its lack of adherence to Berne meant that US publishers could take works published in Europe and republish them in the USA without paying the European copyright holders a cent. It was not until the 1950’s when more published material was flowing out of America than was coming in, that US publishers started to want some of the Berne-based protections for themselves, and it took another 30 years to sort out how that might happen.

    The problem that we face, in the digital age especially, is that some corporations and individuals stand to make large amounts of money from works that were created many years ago, through licensing and merchandising (and, yes, I’m looking directly at you, Disney and the recorded music industry), and they pay and lobby lawmakers to extend the terms for works and make ever more punitive laws to protect their monopolies (e.g. DMCA). Copyright needs reform, yes, but it is in essence a good thing, in my opinion.

    Finally, copyright applies to individual works, not people. Each book, film or song is copyright the moment it is written down and it is from that date that the term begins. If an author continues to hold the copyright, the term may (depending on jurisdiction) extend a number of years after his death. If the author assigns his rights to a corporation (like a publisher), the term is reckoned from the date of publication, regardless of the lifespan of the author.

    So an individual cannot take a blanket “opt out” position – you must place each and every work in the public domain, if you want to do that. This is easily done – just include a statement in each work that it is in the public domain.

    Your friend Dave says “i need to do more reading on how they decided to do this in the first place.”

    Please, both of you – do exactly that. Start with Wikipedia, looking at the UK Statute of Anne 1709 (the first actual copyright legislation), and the Berne Convention, as well as the various copyright entries. Try not to talk about “intellectual property” – it doesn’t exist – copyright is not a property right. Look at copyright for what it is, rather than what you think it might be. Your column above is evidence of the latter, I’m afraid.

  • As with Anne and Berne, could it be possible that we might lobby for the original practice of copyright, that being to claim exclusive and restricted rights, one has to mark the work with C. Not making automatically projects the work into the PD?

    While I would like to reject copyright outright, the only practical step I see possible is to assign PD to everything. A nuisance, and still a gesture that has to recognise copyright as the norm (because I have to mark with PD).

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