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Assymetry, Hypocrisy, and Public Domain

Thousands of people complain that the term of copyright is too long. They point out that documents like the US Constitution make it plain that the term of copyright should be finite, and that it is absolutely critical that copyrighted educational content and other cultural artifacts eventually enter the public domain. This was recently demonstrated by the way people rallied around Lessig’s challenge of the Sony Bono Copyright Extension Act in the US.

However, it seems that – deep down – some people don’t really value the public domain. When given the option of placing works in the public domain early (ahead of when their copyright would expire), they will instead say:

The public domain lets people make and commercialize derivative works which aren’t placed back in the public domain. This is bad. Therefore, we should instead be glad of long copyrights and copyleft our works for the full term of copyright instead of placing them in the public domain. We need to protect our works from commercialization by others by keeping them out of the public domain as long as possible.

The copyleft mentality exemplified in the snippet above is already showing up in responses to the Open Education License draft. I never thought I would say this, but: The best thing about copyright expiring may be that copyleft will expire, too. I’m reminded of Lessig’s comments:

We are where we are because most people don’t believe in the public domain. Most people don’t even understand it. We live in a time when the public domain is more than 75 years old. Yet for most of our history, the public domain was no more than 30 years old. If ordinary people could see the creativity that would be inspired if the 1960s were in the public domain, they would understand again the importance of limiting the regulation that copyright law has become.

Because left and right are opposites, it is easy to fall into the trap of thinking that copyleft is the opposite of copyright. It is not. Copyleft is a kind of copyright that prevents people from exercising certain rights with regard to content. The public domain is the opposite of copyright. If you have any question about how valuable the public domain is, please read Pollock’s excellent The Value of the Public Domain.

The critical importance of the public domain is one reason for the new Open Education License draft. Why not simply create a mechanism for putting works in the public domain? Again, quoting Lessig:

We have no direct license that you can link to so as to place your material in the public domain. This is not because we wouldn’t like to offer such a license. It is instead because the law does not make such simplicity possible. While for most of our history, there were a thousand ways to move creative material into the public domain, most lawyers today are puzzled about whether there is any way to move work into the public domain. We have tried to build a way, but it is not automatic. If you follow this link, there are a number of steps you can take to put material into the public domain. We believe that if you follow these steps, then your work is in the public domain. Again, there’s no way to be certain about this. But this is our best guess, given the murky state of the law.

The first draft of the OEL granted licensees all the rights they would enjoy if the copyright on a work had expired – it was a license that operationally put a work in the public domain. However, it turned out that this approach would not work in the EU legal context, and so we arrived at a draft that grants licensees all the rights for which they would need a license under current, applicable law. I think this is as close to the public domain as we can come using a simple, internationally viable licensing mechanism.

Others will continue to think that noncommercial and copyleft restrictions are necessary, and I won’t argue with them. Licensing should be a matter of personal choice (another reason I don’t like copyleft). I continue to believe, however, that as people become familiar with the idea of openness many will follow a “path of enlightenment” that begins with something like CC By-NC-ND, advances to BY-NC-SA, evolves to BY-SA, then to By, and eventually arrives at the OEL.

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