Lesson 2.1 Introduction to Copyright and Open Licensing
According to the World International Property Organization, ‘Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.’ These works cannot be reproduced, performed, recorded, or adapted without written permission of the author. For educators, this has implications for which materials they can use and how they can use them.
The level and type of protection of copyright varies between countries. In general, copyright is territorial, which means that it does not extend beyond the territory of a specific state unless that state is a party to an international agreement. While many aspects of national copyright laws have been harmonised through international copyright agreements (see, for instance, the Berne Convention), copyright laws in most countries have some unique features.
Copyright is usually for a limited time. It subsists for a variety of durations in different jurisdictions. The length of the term can depend on several factors, including the type of work (for example, musical composition or novel), whether the work has been published or not, and whether the work was created by an individual or a corporation. In most of the world, the default length of copyright is the life of the author plus either 50 or 70 years.
Local and international laws and conventions assure that copyright applied in a country is recognised and protected in many others.
Copyright is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights-holders. These rights (also known as ‘authors’ rights’) secure protection of both the economic interests of authors – such as reproduction, control over derivative works, and distribution – as well as their moral interests (for example, protection against unauthorised use of their works).
Moreover, creators and authors might not be the only copyright owners of a given work. This has very important implications for educators, because in many cases their universities are also copyright owners of the works they produce as employees. In those cases, technically, the academics would need permission from their employers before being able to release their work under Creative Commons.
The world’s first copyright law was the Statute of Anne, enacted in England in 1710. This Act introduced for the first time in history the concept of the author of a work being the owner of its copyright, and laid out fixed terms of protection. Nowadays, each country has its own copyright laws. However, there are some international standards, most based on the Berne Convention. Under the Berne Convention, each country gives original works from any country the same protections, regardless of the laws of the country where they originated. For example, if you find an e-book online by an author from another country, it’s protected by the same copyright laws as a book by an author from your own country. The Berne Convention grants copyright protection to ‘every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression’. Therefore, what lies at the heart of copyright law is the distinction between artistic works and mere ideas.
Copyright law protects only the form of expression of ideas, not the ideas themselves. Using ideas expressed in a work does not represent a copyright violation. For copyright to be infringed, one has to copy the form in which the ideas are expressed.
It should be noted that copyright also protects ‘derivative works’ – such as translations, adaptations, and music arrangements – without prejudice to the copyright in the pre-existing work. In other words, an author of a translation needs first to obtain authorisation from the author of the work. Computer programs are protected under the copyright laws of a number of countries, including the EU, as well as under the WIPO Copyright Treaty. The same applies to databases.
With the coming of the digital era, copyright is facing several issues since restrictions on reuse do not always fit well with how we use and share information in the digital sphere; furthermore, society benefits most from certain types of content when they can freely circulate. To maintain a fair balance between the interests of users and rights-holders, copyright protection is subject to two types of limitations. On the one hand, works are protected only for a certain period of time, at the expiration of which they may be used freely. On the other hand, during the term of protection, a number of exceptions and limitations, allows for copyrighted works to be used without a licence from the copyright owner.
From the educational perspective, the main category of exception is the so-called ‘fair use’, and concerns particular acts of exploitation, normally requiring the authorisation of the rights-holder, which may, under strict circumstances, be carried out without authorisation. Examples of fair use include: quoting from a protected work, provided that the source of the quotation and the name of the author is mentioned; and use of works by way of illustration for teaching purposes and news reporting. Interestingly, exceptions and limitations have not been harmonised at the international level. Indeed, the right to quote is the only mandatory exception provided for by the Berne Convention. However, all national copyright laws grant exceptions and limitations based on the notion of ‘legitimate interest’ and which fall into four main categories: promotion of freedom of expression (quoting works for the purpose of criticism or parody); access to knowledge (for example, replacement of lost or damaged copies in libraries; the production of alternative versions in large print or braille of a copyrighted work for visually impaired persons); the requirements of justice and the functioning of the government (for example, official texts and court rulings); and finally, private or personal use.
Nonetheless, a rights-holder may also decide to abandon their exercise of the rights, wholly or partially (i.e., posting copyright protected material on the internet for a fee, or restricting the abandonment to non-commercial use) (http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/564380/EPRS_BRI(2015)564380_EN.pdf).
Free licences and Open licences
In answer to the current copyright challenges, open licensing movements have risen in recent years, with a significant impulse from the open software communities.
A public licence or public copyright licence is a licence by which a copyright holder as licensor can grant additional copyright permissions to any and all persons in the general public as licensees. Open licences are a novel use of existing copyright law to ensure a work remains freely available fostering openness and the free circulation of knowledge.
An open licence is a licence agreement that describes the conditions under which the holder of the intellectual property grants the users to perform a variety of uses for his intellectual or artistic works. Through open licences, authors grant permission for users to reproduce, adapt, or distribute the work, with the accompanying requirement that any resulting copies or adaptations are also bound by the same licensing agreement. Examples of such licences include the GNU General Public Licence – the first and most widely used software ‘copyleft’ licence – and Creative Commons Licences.
Free software licences are the legal tools that have been used since the 1980s to promote free software development and distribution: they are legal acts by which the author licenses copyrights (and patent rights) to allow users to enjoy the freedoms provided by the free software definition. Therefore, for a program to be free software, it is enough that the rights holder distributes it under the terms of a suitable licence: a free software licence.
In 1989, Richard Stallman wrote the first version of the GNU-GPL licence, unifying similar licences he used for earlier versions of his programs. Nowadays the GNU-GPL licence is adopted by a large number of projects and it is at the heart of the free software movement. Wide adoption of this licence is partly due to historical reasons (it’s the licence created by Richard Stallman, the founder of the Free Software Movement) but also to practical reasons: the engineering of this licence favoured for the spreading of free software. In fact, the GNU-GPL provides that the user is allowed to modify and redistribute software licensed under this licence provided that the modified version is in turn licensed under the terms of the same licence.
To put it briefly, open licences foster sharing: whoever wants to modify the content and distribute it (or, sometimes, allow its remote use) can do so provided that he in turn gives the users the same freedoms that were granted to him.