Open licenses depend on copyright

The Commonwealth of Learning recently released a chapter on open licenses for an upcoming book. However, there is one statement in the very first paragraph that leapt out at me.

Some, disliking the business practices of commercial software suppliers and publishing houses, want to replace copyright with open licences. Some want to allow anyone to profit from the work of others without even telling them they are doing this. Despite the resistance to copyright by some open licence supporters, open licences are legal tools that use copyright law to achieve their objectives. It follows that for understanding open licences legal analysis is at least as important as ideological commitment.

The implication of the first sentence is that some people who support open licenses want to do away with copyright. I’ve met hundreds of people who support and even evangelize the use of open licenses, but I’ve never met one who thinks that it should be legally impossible for authors to protect their creative works.

It is true that many supporters of open licenses think that there are fundamental problems with copyright law that need to be fixed. Many feel that the Berne Convention requirements for the automatic copyrighting of all creative works the moment they are fixed in ‘tangible’ form should be reversed. When you count ~all~ the “creative works” in the world – including things like children’s crayon drawings – it is clear that the vast majority of creators never intend to protect or commercialize their works. So the majority of creators are burdened for the sake of the minority of creators. If my creative works weren’t automatically, unavoidably “protected,” I would be able to share them as part of the public domain without needing to resort to legal machinations. It says something disappointing about our civilization that hoarding is the assumption and sharing is assumed so rare that a lawyer’s help is needed to do it.

However, the more subtle point that I believe the rest of the paragraph is trying to make is that without copyright protection open licenses are meaningless. Licenses only work in the context of copyright law. Saying that you want to replace copyright law with open licenses is like saying you want to replace a fish tank with a fish. The fish can’t live without the tank, and open licenses don’t function outside the context of copyright law. I wish more people understood this point… Perhaps OER supporters who are serious about these issues will sign up for UOC’s Master in International Copyright law…