Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Posts Tagged ‘public domain

LibreTea and Free Culture

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When I began blogging in 2009, this was my very first blog. It was the place I established as my home base to get my bearings as I tried to figure out what’s what — and what I was doing here.

Yueh Tung Chinese Restaurant - Libre TeaAlthough I’ve been known to refer to this as my “personal blog,” it has never been what most people would consider “personal,” because although I share my personal opinions and ideas, I try to be mindful of the privacy rights of others, so very little in the way of personal information finds its way in.

Early in my blogging career I began learning about copyright, and as the implications began to sink in, this blog began to morph into a Free Culture blog, although I’ve only just now definitively identified it as such by renaming it.

Last weekend I attended the first ever Libre Tea in Toronto. You might be wondering what a #LibreTea might be, and the best explanation I can offer is that a Libre Tea is a social gathering for people who work for and support the idea of freedom.

(And who am I to resist such a brilliantly apt pun?)

This LibreTea was a joint gathering for Ontario LibrePlanet, Ubuntu and CryptoParty folk — three groups of who share an interest in freedom.

Some of the freedom fighters who attended the gathering are pictured below;

LibreTea Toronto

FREE CULTURE FILM FESTIVAL

And this weekend I presented a Free Culture Film Festival as part of the local Software Freedom Day Celebrations put on by KWLUG and The Working Centre.

The films screened at The Free Culture Film Festival qualify as free culture either because:

  • they are in the Public Domain or
  • they have been licensed to share.

This means you can legally watch and share them as you wish. Each film title is the link that will take you to a page where you can watch and/or download the movie online:

Charade (1963) Cary Grant, Audrey Hepburn ~ Public Domain
Never Weaken (1921) Harold Lloyd & Mildred Davis ~ Public Domain
His Girl Friday (1940) Cary Grant, Rosalind Russell ~ Public Domain
Fleischer Studios animated “Superman” (1941) and “The Billion Dollar Limited” (1942)
Warner graciously made high definition copies of all of the the Fleischer Studios/Famous Studios Superman shorts online.
The Durian Movie Project: Sintel (2010) Creative Commons Attribution 3.0 License
Sita Sings The Blues (2008) originally released as Creative Commons Attribution Share-alike; now CC0

[It is not unheard of for media to be knocked off the Internet via specious DMCA Takedown notices. After all, such takedowns don't require any pesky evidence and there are zero consequences to the DMCA applicant if peoves to be incorrect. If any of these links doesn't work for you Drop me a line at laurel.l@russwurm.org]

FREE CULTURE FILM FESTIVAL poster - Charade (1963), Never Weaken (1921), His Girl Friday (1940), Fleischer Superman (1941, 1942)m Sintel (2010) and Sita Sings The Blues (2008)

Free Culture Film Festival #SFD

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Never_WeakenBANNER

cover2I’ve been asked to put together a Free Culture Film Festival as part of Waterloo Region’s Software Freedom Day Celebration this Saturday.  This year Software Freedom Day is brought to you by the KWLUG in co-operation with The Working Centre.
Approved for Free Cultural Works symbol
I wasn’t sure what I would be able to find, and as it turns out, my biggest problem wasn’t how little was available, but how much.

I wanted to present a varied selection of films that qualify as Free Culture for different reasons.

 

Rama drops Sita ~ from Nina Paley's brilliant "Sita Sings The Blues"amaSaturday, 20 September 2014 (iCal)
10am-4pm
The Working Centre
43 Queen Street South and 58 Queen Street South (Map)
Kitchener

For information about the #SFD Presentations, Workshops and Installfest visit the KWLUG Software Freedom Day page.
All activities are free of charge unless you are purchasing computer equipment during the Installfest.

 

 

FREE CULTURE FILM FESTIVAL

10:00am “Charade” (1963) ~ Copyright Never Happened

Cary Grant/Audrey Hepburn (113 min)
In 1963 American copyright required registration. One of the requirements was that any work to be protected by copyright had to be properly identified as such. What should have been the copyright notice included in the opening credits of the movie Charade failed to include the word “copyright” or the abbreviation “copr” or the © symbol, which meant Charade was inadvertently published directly into the public domain the moment it was released.
But although the film itself is in the Public Domain, any artwork and publicity material may or may not be, so for the purposes if this screening, it was safer for not to use an official movie poster, but to instead cobble together my own with images taken directly from the film. I have in turn released my poster directly into the Public Domain with the Creative Commons CC0 license.
My DVD copy of Charade was a bonus feature included with one of the the Charade remakes, The Truth About Charlie. Since Charade is in the public domain, no royalties would be required for a film that choses to do this. In fact, when I bought the DVD I had no idea if I would like the remake, but it was worth risking because to replace my Charade VHS with a DVD.

12:00pm Harold Lloyd: “Never Weaken” ~ Copyright Expired

Harold Lloyd, Mildred Davis ~ running time: 29 minutes
Silent screen film maker and movie star Harold Lloyd co-starring with his leading lady (and later wife) Mildred Davis in Never Weaken. This was the last short film he ever – all his subsequent films were feature films.
Harold Lloyd continued making films even when they started talking, and he retained copyright to his work. Lloyd’s films enjoyed only very limited re-release due to his stringent demands: he insisted his silent movies had to be accompanied by organ, not piano; he demanded $300,000 for 2 showings of his films on television. This had the effect of pulling his work out of the public eye, with the result his work is largely forgotten today.
American films released prior to 1923 have expired which is why all his early works are in the Public Domain. Lloyd was careful to keep all his work under copyright, so his subsequent work is protected by copyright for 95 years due to the Sonny Bono copyright extension.

12:30pm “His Girl Friday” ~ Cary Grant/Rosalind Russell (92 min) Copyright Expired

Cary Grant, Rosalind Russell ~ running time: 92 min
His Girl Friday is a derivative work; this is one of many remakes of the successful stage play, “The Front Page.” The original story was about two men; this version made Hildie and Walter an ex-wife and husband. Although it failed to be a huge hit, apparently because audiences thought Cary Grant too much of a light weight for the part, for me, this is the version I like best.

As a result, the studio couldn’t be bothered to renew its copyright. I think at least part of His Girl Friday’s later success on television, video and now DVD formats may well be due to urs Public Domain status. Judging by images on the Internet, it has also enjoyed no small success as a live theatre production. In many ways, this version resonates better with modern audiences.

2:00pm The Fleischer Animated “Superman” ~ Copyright Expired

Fleischer Studios animated Superman short ~ running time: 11 minutes
To my mind, the best film animation of the early part of the 20th Century was produced by the Fleischer Studios Inc., who were also responsible for technical innovations like the rotoscope and sync sound animation. Although Betty Boop and Popeye are their most famous creations, Brothers Max (producer) and Dave (director) Fleischer produced 9 Superman shorts in 1941 and 1942. Unfortunately there was a huge personal falling out between the brothers (ostensibly begun over Dave’s adulterous affair with a secretary) which resulted in their distributor Paramount taking over their business. With Dave Fleischer out of the picture, the remaining Superman films in the series were directed by Dan Gordon, I. Sparber and Max Fleisher’s son-in-law Seymour Kneitel and produced by the re-branded Famous Studios.

2:15pm Sintel ~ Creative Commons Attribution 3.0

The Durian Open Movie Project ~ running time: 14 min
Blender began as 3D animation proprietary software, but a few years ago the corporation that developed it decided to free the software, and they haven’t looked back since. Sintel is the third Blender film made to demonstrate the capabilities of the software. This one is my personal favorite, both because it’ gorgeous and I like dragons. Since the Blender software has benefited from emancipation, it is hardly surprising to find these films were released with a Free Culture license (Creative Commons Attribution 3.0) right from the start.

2:30pm “Sita Sings The Blues“~ emancipated by Nina Paley

Nina Paley‘s classical animation feature film ~ running time: 82 min
Nina Paley’s original vision for Sita Sings The Blues included the public domain recordings by Annette Hanshaw to form the musical score. As it turned out, big media driven “copyright reforms” retroactively extended the copyright term for the sync rights (the particular rights necessary when using recorded music in a film). The long and the short of it is that Nina Paley had to pay gigantic sums to acquire these rights to release her film.

“Having paid these extortionate fees, I could have gone with conventional distribution, and was invited to. I chose to free the film because I could see that would be most beneficial to me, my film, and culture at large. A CC-SA license does not absolve a creator of compliance with copyright law. The law could have sent me to prison for non-commercial copyright infringement. I was forced to borrow $70,000 to decriminalize my film, regardless of how I chose to release it.”
~ Nina Paley, “Correction

As Nina continued to question copyright, she decided to take it to the next level, and so she has since released this wonderful film into the Public Domain.

3:50pm Superman:“The Billion Dollar Limited” ~ Copyright Expired


Why we need Free Culture (in case you didn’t know…)

In the beginning human beings lived in a Free Culture world. If a writer published a play, or an author a novel, this new creative work left his private domain (his mind, home or working space) and entered the Public Domain. Anyone who saw the play performed was free to be inspired to remake it as a new creative work, or to mount their own production of it as is. Anyone who read a book could quote from it or copy it and even sell their own copies if they wanted to.

The grandmother of copyright law was the “Statute of Anne” enacted by Queen Anne in 1710. In spite of the name, “copyright” is a state imposed monopoly, not a “right.” In exchange for limiting the public’s right to copy, learn and share our culture, the copyright monopoly was supposed to encourage good creators to create works to benefit our culture. And maybe it worked that way once. Although originally limited to books, the scope of copyright has spread like cancer to nearly every form of human creativity, and the “limited” terms are so long most of my own culture will be “protected” until long after I am dead. And creators still can’t make a living from their work.

Today’s technology makes it possible for anyone to create our own digital work. Every cell phone is a camera, every school child has access to computers; that’s all you need to make movies. But the minefield of potential copyright infringement and criminalization is enormous. Copyright law is a tangled mess of law written differently in every country, and it can be used against anyone who uses any digital device. We must understand copyright basics for our own protection. Because today copyright law is used to “protect” our own culture from us.

Anything we are free to use as we like is all that remains of Free Culture; everything else is a legal risk. In today’s copyright mad world, creative works that have been Licensed To Share and works in the Public Domain are two sources of Free Culture that we can use legally.

 


UPDATE: I’ve provided links to all the Free Culture films I presented in LibreTea and Free Culture
 

WIPO and EU and Libraries ~ Oh My!

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Like most people, I’ve spent most of my life not actually thinking about copyright law. I bought into the idea that copyright “protects” creative works and encourages creativity. At least I did until I started actually thinking about copyright law when I sat down to write my submission to the Canadian Government’s Copyright Consultation. That was when I first began to question copyright. Over the years since, I have found less to like and more to dislike about copyright law.

A large part of the problem is that governments take advice and direction from copyright “experts” who represent the special interests that would benefit from perpetual copyright. So the industry that will benefit from increased copyright have been invited to the table, but for the most part no one is asking, let along listening to the public. Every expansion of the copyright monopoly comes at the expense of the public interest by eroding the public domain. Cultural works used to come into the Public Domain within our lifetimes, but that is no longer the case. When copyright terms extend for as many as a hundred years after the death of the creator, our own culture is increasingly outside our grasp.

copyright chainsBecause the public domain should be protected, and free culture should be shared, I very much support the work done by the good people involved in the OpenGLAM initiative (run by the Open Knowledge Foundation) that promotes free and open access to digital cultural heritage held by Galleries, Libraries, Archives and Museums. These institutions exist to promote art, culture, history and heritage, so it’s a big problem if copyright law prevents them from achieving their mission. In many respects, because these cultural institutions exist to serve the public, they are increasingly standing up for the public interest.

The recent trend of copyright maximalists has been to take copyright discussions away from lawmakers and out of the public view, instead cloaking international copyright negotiations in secret trade agreements. One of the stunning things about the secret ACTA negotiations was the exclusion of elected government representatives from even knowing the terms of the treaties being discussed. Once such treaties are signed, naturally lawmakers are pressured to rewrite domestic law to accommodate the treaty.

The International Federation of Library Associations and Institutions (IFLA) has been working to make sure the needs of Libraries are taken into consideration at WIPO. Unfortunately the EU seems more interested in supporting corporate special interests than the public interest.

EU flag“The EU made no attempt to address the wide range of problems, particularly relating to non-commercial cross-border activities, identified by library and archive NGOs. It seems to value only internal commercial interests, ignoring and its own interests in culture and research.”
— Mr. Tim Padfield, speaking on behalf of the International Council on Archives (ICA)

As Mr. Padfield suggests, the human rights and cultural needs of the world should be be addressed and protected, not cast aside to support commercial special interests.

The following is a press release issued by the The International Federation of Library Associations and Institutions (IFLA)

EU REJECTS INTERNATIONAL SOLUTION TO LIBRARY AND ARCHIVE COPYRIGHT PROBLEMS;
CAUSES COLLAPSE OF WIPO MEETING

Tuesday 6 May 2014

Discussions by the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright & Related Rights (SCCR) broke down in the early hours of Saturday morning 3 May, after the European Union (EU) attempted to block future discussion of copyright laws to aid libraries and archives fulfill their missions in the digital environment.

Library and archive delegations from Europe, Latin America, Australia, the United States, Canada and the UK attended the 27th meeting of the SCCR from 28 April – 2 May 3014, to push for an international treaty to help libraries and archives preserve cultural heritage, facilitate access to essential information by people wherever they are in the world.

The meeting ended in disarray at 1:30am on Saturday morning, after the EU tried to have crucial references to “text-based” work on copyright exceptions removed from the meeting conclusions – a move viewed by other Member States and library and archive NGOs present as an attempt to delay, if not derail, any progress on copyright exceptions at WIPO.

Dr. Stuart Hamilton, Deputy Secretary General of the International Federation of Library Associations & Institutions (IFLA) commented:

“For the past three years, Member States have been looking at draft texts on copyright exceptions for libraries and archives. The EU is now trying to pretend these don’t exist. We’re frustrated, and deeply disappointed. It appears the EU came to WIPO with one goal in mind: to kill the discussion.”

The EU’s attempt to sideline discussion of copyright exceptions at WIPO is particularly concerning in light of the ongoing review of copyright laws at the EU level.

Dr Paul Ayris, President of LIBER, the Association of European Research Libraries, expressed his disappointment:

“The position taken by the EU delegation in Geneva contrasts strongly with current discussions at European level, where it has been recognised that copyright exceptions for libraries are essential, and must be harmonised in order to facilitate international research and innovation in the age of Science 2.0. The conservative position taken at SCCR 27 in Geneva this week is therefore deeply disappointing. It does not support research and education and hampers European researchers in their use of new tools and services.”

The SCCR has been discussing a possible legal instrument to safeguard copyright exceptions and limitations for libraries and archives since 2009. It is due to submit recommendations to the WIPO General Assembly in September 2014.

“We must act now, and engage at WIPO to make sure the EU and other developed countries know just how inadequate copyright laws are for libraries and archives in the digital, global world,” said Dr. Stuart Hamilton.

Ellen Broad
Manager, Digital Projects & Policy (IFLA)

Book Shelf ~ Kelly Library

Additional quotes

“Libraries in developing and transition countries seek a level playing field to provide people with information needed for education, research and development. Talks at WIPO, where international copyright law is shaped, must urgently get back on track to advance the goal of equal access to knowledge for all.”

— Ms Teresa Hackett,
Electronic Information for Libraries IP Program

razor wire

“In Europe we have introduced a mandatory copyright exception specifically to enable and promote cross-border online access to library and archive collections, and yet the EU delegation at the WIPO negotiations repeatedly denied the need for such solutions within an international context. For many, the EU’s position will smack of hypocrisy and economic self interest.”
— Professor Ronan Deazley,
Copyright Policy Adviser to Scottish Council on Archives

These Doors Are Locked

“We had just spent a productive week discussing several specific examples of legal inconsistencies and ambiguities that block archival preservation and service across borders. After all that valuable dialogue, it was heart-wrenching to see an elite sector at WIPO obstinately thwart efforts at a global solution to a global problem. It is also disappointing that the United States is not ready to assume a leadership role in working with the delegations of Brazil, Ecuador, India, Iran, Kenya, and others to craft a compromise. Nevertheless, those delegations showed that progress will not happen through unbalanced compromises, but by forthright adherence to a treaty that serves the world’s knowledge needs through the service of archives and libraries.”

— William Maher,
The Society of American Archivists (SAA)

NO TRESPASSING

“The EU’s hostility to any substantive discussions that might lead towards an international copyright treaty for the benefit of libraries and archives is reminiscent of its opposition to a treaty for the benefit of blind, visually impaired and print disabled people for most of the five years of talks that concluded in the Marrakesh Treaty 2013. Ironically, the EU signed the Marrakesh Treaty at the same WIPO meeting last week where it sought to wreck discussions concerning libraries and archives.”

— Ms Barbara Stratton,
representative of the Chartered Institute of Library and Information Professionals (CILIP)

Don't Lock Up Our Culture!


Image Credits
With the exception of Nina Paley‘s copyright jail graphic (she has deeded to the Public Domain) that I remixed into my book jail, all images in this article are my own, and as such are released with a Creative Commons Attribution 4.0 International License.

Although WIPO Standing Committee on Copyright and Related Rights (SCCR) has a published Flickr photostream I didn’t use any of them, since all of these images are Copyright All Rights Reserved, not licensed to share.

Death by Copyright

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Aaron Swartz

No one should ever go to jail over copyright law.

It is inconceivable to me that anyone should ever die over it. Now someone has.

Aaron Swartz killed himself on Friday. He was 26. A legend in the tech community, probably a dotcom millionaire. He could have lounged around poolside sipping designer martinis for the rest of his days.

Instead he worked for the public good, fighting the copyfight, defending the internet and the public domain.

Sometimes people of principle feel the need to challenge unjust laws. And like many reformers before him, Aaron Swartz ran afoul of the law in trying to change the world.

A murderer might have to serve as many as seven years for taking a life.

But 26 year old Aaron Swartz faced perhaps more than 35 years in jail.  Over copyright.

Lawrence Lessig characterized it as bullying.

I seem to spend an awful lot of time writing about what’s wrong with copyright law. Since I started looking at copyright with new eyes, I can’t seem to avoid seeing the harm that it does.

Copyright law isn’t a right, its a government backed monopoly that supposedly promotes innovation. Aaron Swartz was certainly an innovator. He, too, was disturbed by the harm copyright does, and so he tried to push against it. But copyright law pushed back, and made sure he will innovate no more.

There is a great outpouring of agony across the Internet.  Having myself struggled with the demons of depression, Cory Doctorow’s eulogy makes me weep. Depression can seem interminable; I can’t imagine how much worse would it be looking at potential decades of imprisonment.

But what gets me is this comment made by someone I’ve never met on Lawrence Lessig’s blog:

No amount of IP will ever be worth a human life. I don’t care how you justify it. Putting Aaron away for 35yrs may be legally justifiable, just as sending slaves back to slave owners from non slave states once was. I however cannot begin to align the life of any human with imaginary property.”

Wayne Tedder

Aaron was only a little older than my own bright and principled child.  My heart aches for Aaron, and his family.  No family should have to endure this.  This is simply beyond acceptable. There is no harm greater than this.


Image Credit
Aaron Swartz, released under CC0 1.0 Universal (CC0 1.0) Public Domain Dedication by Cory Doctorow

Written by Laurel L. Russwurm

January 13, 2013 at 6:58 am

Stunning Copyright Declaration

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Copyright "c"

All material in this edition is protected by copyright, exclusively held by the author and the University of Virginia Press. Permission has been obtained by the Poe Society of Baltimore from Mr. Deas and the Rector and Visitors of the University of Virginia to provide this electronic edition for academic and research purposes only. The Poe Society of Baltimore asks all users of this material to respect these copyrights, and not to exceed what would typically be considered as fair use (generally interpreted as selective quotations and/or paraphrasing of only a small percentage of the total material, and with the appropriate attribution and citation).

Although many of the images have been previously reproduced, in various forms, the copyright of an image is usually considered as belonging to the holder of the physical original. Many of the reproductions in the current presentation are provided as a result of special negotiation, and we ask that they not be pirated. Violation of these copyrights may reduce our ability to present similar information in the future.

The Portraits and Daguerreotypes of Edgar Allan Poe (1989), title page and table of contents

[Note: the emphasis above is mine.]

This is simply incredible. Copyright is a monopoly law enacted by the state, not supposition. American copyright specifically alludes to limitation of copyright terms. Although the reality has been the American Congress bowing to the demands of the special interest group seeking infinite copyright — by granting term extension after term extension — when it comes to photographs of Edgar Allan Poe, that boat has sailed. Edgar Allan Poe died in 1849.

This resulted in extending the copyright monopoly to photographs

Photographs were not even covered by copyright prior to the US Copyright Act of 1870 (confirmed by the Supreme Court decision in Burrow-Giles Lithographic Co. v. Sarony in 1884).

Although I am not a lawyer, the only way any photograph of Edgar Allan Poe could be covered under copyright would be if it had never been published. It seems clear that some people and institutions have hoarded these images of the celebrated writer in the mistaken belief that:

“…the copyright of an image is usually considered as belonging to the holder of the physical original…”

Although the very word “copyright” implies that it is a “right,” in reality copyright is a state mandated monopoly. That’s why there are variances around the world. There have been a few cases when states have further usurped the cultural rights of citizens to grant copyright monopolies in perpetuity, like the Canadian Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada as well as the U.K.’s Peter Pan extension. Still, neither of these instances are in American law.

Copyright may be a difficult issue, but I would expect a university press to know better.

Copyright is not about ownership of the physical original; this monopoly concerns itself with what is now known as intellectual property rights. Once the original is published; from the moment it leaves the security of the private domain ~ in this case, the daguerreotype artist’s studio — when the work first appears in the world, fixed on paper, perhaps mounted in a matte or frame, in a newspaper, book, or the Internet, the clock starts ticking on the term of copyright. When the monopoly term ends, the intellectual property enters the public domain.

Had Poe been an obscure nobody, these images might never have been published, and so may not have entered the public domain. But that is unbelievable, as Edgar Allan Poe was very famous indeeed, and his death occurred at the height of his powers. There is no reason to suppose any of these images would not have been published at that time, because copyright did not then apply to photographs, so there was no benefit to suppressing Poe photographs.

Copyright law has become a complex mess as it tries to reward this person or that corporation for hoarding cultural treasures that deserve to be in the public domain. Many well meaning people and organizations fall into the morass of copyright misinformation, and make terribly inaccurate statements like the one above.

Although some of these works may have been lost without the efforts of those seeking to benefit from copyright, there is as great a possibility copyright would have done damage, as it often drives original works further and further into obscurity.

Over the last few decades, governments have enacted copyright “reforms.” These have have resulted in onerous draconean punishments being slammed down on individuals who have engaged in copyright infringement of a personal nature, to make “an example.” The intent is clearly to scare everyone else into not committing non-commercial copyright infringement. (What we used to call “sharing” when I was a child.)

As far as I know, this type of infringement was never even prosecuted even thirty years ago. Back then, good law abiding people thought nothing of backing up their record collections on cassette tape, or making a mix tape for a private party. But today, non-commercial and commercial infringement are routinely painted with the same brush of piracy. Personally I think this is ludicrous, because it is the non-commercial sharing and remixing that helps to keep a culture vibrant and growing. Locking it up with copyright means you end up reading the same book and watching the same movie over and over again . . .

Still, it is the law. Since copyright is not a natural right, but a monopoly, it is whatever the lawmakers say it is.

Currently lawmakers are interested only in protecting the special interests of “rights holders,” as they have a great deal of wealth and influence to fuel lobbying efforts around the world.

Although there are exceptions to the Canadian copyright law (“fair dealing”) and American copyright law, (“fair use”), the interpretation of these exceptions are both broad enough and imperfectly understood enough that it is much safer for those of us without a legal staff (aka, the public) to simply not avail ourselves of these exemptions.

Which is why the public and the public domain are not protected from copyfraud at all. There is no legal recourse to prevent statements like the one referenced.

Public domain works belong to all of us… the public. You me and our kids. This is our culture, our heritage.

This type of misinformation effectively prevents most of us from making legally allowed use of public domain works. That is called “copyright chill.” It stifles our use of creative works, and prevents us from using them to create new works, which might be anything from a personal greeting card, a high school history assignment, an original web comic, or a documentary film.

The worst is that, although that misinformation can be identified as copyfraud, no copyright law in the world moves to stop it. The public domain doesn’t have expensive lobbyists to go to court on its behalf, so the public rights are simply trampled by copyfraud.

Copyfraud is piracy.

When the public domain is eroded, we all lose.

You Can’t Copyright the Public Domain

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I sent the following email to a museum today. I’ve removed identifying information because I think that the problem is really one of copyright confusion, and I truly hope that they will change their policy.

Your museum sounds quite interesting, and it is creditable to see its commitment to sharing Canadian history online.

I’m writing to inform you of a fairly serious copyright issue. While it is true that [the museum] owns physical copies of the work in its collection, that does not confer copyright ownership. Although I have not looked at your online offerings exhaustively, the one example I looked at closely shows the Museum has licensed at least one public domain work Attribution-NonCommercial-NoDerivs 2.5 Canada (CC BY-NC-ND 2.5).

This license could be considered liberal if the Museum actually owned the copyright in the work. Since Canadian Copyright Law places anonymous work in the public domain fifty years after publication, this work should clearly be in the public domain. Which makes the Creative Commons license you have chosen not a liberal permission, but rather an extraordinary restriction that effectively locks Canadians out of our own history. Further, the Non-Commercial No-Derivatives restriction prevents Canadian made cultural works.

Creative Commons Zero or Public Domain logo

Utilization of Creative Commons licenses is usually good, because they lift onerous copyright restrictions — but not when they are affixed to works in the public domain. Public domain work should more properly be labelled CC0 or assigned a Public Domain Mark.

If [The Museum] expects branding public domain work © [The Museum] will ensure accreditation, it does not. It is more likely to inspire people to not credit you, for fear of copyright infringement consequences. Case in point: the image that ultimately brought me to your site today was shared online with no accreditation at all beyond the museum’s name stamped on the side.

The only right copyright grants the Museum is the ability to sue people who copy images so designated ~ if they infringe copyright. Of course, whether a court would subsequently uphold any museum claim to copyright of public domain work remains to be seen.

Even if the museum would win a lawsuit suing Canadians for using part of our heritage ~ cultural and historic work that is in the public domain ~ even commercially ~ would hardly endear your organization to the public. Further it may well curtail future donations of historic work to the [The Museum] Collection.

Employing the Creative Commons NoDerivatives clause will prevent Canadians from using [The Museum] Collection work in celebration and sharing of our own history through the creation of our own remixes and art, and the NonCommercial restriction further prohibits the same for commercial uses. Both of these restrictions belie [The Museum's] stated mission which suggests it “celebrates our past and present life — our history, our people, our communities” but these provisions will instead crush any attempt to use [Museum] works in any “contemporay and interactive” manner.

There is nothing wrong in selling physical copies of collection works in the public domain. If anyone wants to make commercial use of any of the photographs in the museum collection, they would likely still seek out high quality copies or access to the original work. Individuals wanting to frame prints for themselves would similarly prefer the high quality copy that the museum already sells. If I wanted to publish a history book, I would get the best quality copies available.

Creative commons double c enclosed in a circle, with black text at right reading Creative Commons and in red dot CA

Copyright law has become quite complex, and so I would recommend reading Lawrence Lessig’s book Free Culture and Jason Mazzone’s book Copyfraud in hopes the Museum will reconsider its policy. Screening the NFB film RiP! A Remix Manifesto would be helpful too. You can also contact Creative Commons Canada directly for more information.

I’m not a lawyer, just a Canadian fiction writer with an interest in history, copyright and free culture, and you should be aware that I will be publishing a version of this email in my blog. As I am hopeful that [the Museum] wants to fulfill its stated objectives, I will first remove identifying references from this article. I do very much hope that your museum rethinks this issue that is so important to us all.

Regards,
Laurel L. Russwurm

Written by Laurel L. Russwurm

August 31, 2012 at 3:35 pm

C-11 ~ Criminalizes TPM circumvention without Warning Canadians

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Before making it illegal to circumvent TPMs, shouldn’t Canada make it mandatory for manufacturers to warn Canadians that the media and devices we buy use TPMs?

Especially since most Canadians don’t know what TPMs are?

Canadians don’t recognize TPMs.

    • We think we are doing something wrong when we are prevented from copying digital photos we have taken of our own kids, with our own digital camera, to the hard drive on our own computer. We can’t tell if there is something wrong with the camera, the cable, the flash drive or the computer. It would never occur to us that the software has decided we are infringing copyright — especially since we aren’t.  Our ability to copy our own digital content can be prevented accidentally or deliberately with TPMs (Technological Protection Measures).
    • We don’t know the reason we have so much trouble trying to burn our home movies onto a DVD for Granny is because TPMs prevent the software from working properly.  When TPMs (more commonly called “DRM” or “digital locks”) are added to our media and our devices the functionality is often degraded. In other words, to protect the intellectual property from consumer customers, TPMs that may break the thing are often considered an acceptable risk.
    • We don’t know that our legally purchased DVD won’t play in our own DVD player because it is region encoded for a different region, another deliberate TPM.   Consumers accept “region encoding” as a natural limitation of the technology, because we knew it was a physical limitation on VHS and PAL videotape formats.  But the reality is that a DVD would play in any machine except that region encoding TPMs artificially prevent consumers from playing the DVDs we purchase on the device of our choosing.
    • We don’t know that the DVD we legally purchased will not play on the digital device we own if it has a Free Software Operating System (gnu/linux) without first utilizing a player like VLC to circumvent the manufacturer’s TPMs — DRM or “digital locks.”  Bill C-11 will make software like VLC illegal because it can be used to circumvent TPMs.
    • We don’t know that we can’t save the YouTube video letter our grandchild uploaded for us because YouTube’s TPMs prevent this.
    • We don’t know that when we’ve upgraded the hardware on our computer one too many times, the reason that our “improved” computer suddenly became a brick and simply will not work any more is because TPMs prevent it until we buy a new copy of the software. Bill C-11 will make it possible to prevent consumers from installing free software on our own computers.
    • We don’t know that the Nineteen Eighty Four eBook we bought from Amazon disappeared from our Kindle because Amazon was simply exercising a is a deliberate TPM (Technical Protection Measure), more commonly called DRM or “digital locks.”
    • We don’t know that the printer ink cartridge isn’t actually empty, but that the TPM has decided it is.  Sometimes because we have made a certain number of copies, or maybe because there is a TPM which tells the printer that the cartridge can no longer be used after a certain date.  So some printer cartridges can’t be refilled without resetting that date – which constitutes circumventing TPMs.
    • We don’t know our scanner isn’t scanning those photographs because they have been “copy protected” with TPMs.  Even though the photographer has (a) died (b) gone out of business or (c) long ago deleted the content from their drives.   Further, we don’t realize that if we do find a way to scan the only copy of that milestone photograph of our loved one we will be circumventing TPMs, which will be illegal once Bill C-11 passes into law.

Not all TPMs are digital.

Some devices are assembled using specialty screws that can’t be turned with standard screw drivers.  So you must possess the proprietary screwdrivers just to open it up.   With Bill C-11 these screw drivers can be considered TPM circumvention devices, which will become illegal if Bill C-11 passes. Computer recycling depots, AV departments in schools and libraries, and of course repair shops across Canada will have to be very careful not to repair or refurbish any device with TPMs.  It will be safer to throw many goods out rather than risking breaking the law to make repairs.

The Copyright symbol is a TPM.  Overlaying the words “Do Not Copy” or some other kind of watermark on an image is another kind of TPM.  Very often both of these TPMs are used in the commission of copyfraud.   Creative work that was never “protected by copyright” (like the works of Shakespeare) or that have already entered the public domain (like the works of Oscar Wilde) are not subject to copyright.   Anyone can use them, because the monopoly has expired.  But there are a very large number of websites set up to sell copies of public domain art etc that claim copyright to which they have no right.

If copyright infringement is theft from the copyright holder, then copyfraud is theft from the public.  Making copyfraud an offence would actually modernize Canadian copyright law, but as it stands, Bill C-11 will actually protect copyfraud, at the expense of Canadians.

TPMs effectively allow machines authority over human behaviour, and there is no appeal.  How do you convince the hardware or software that it is in error?

No one tells us these things even *have* TPMs.

A great many of the problems we currently experience with our digital media and devices are caused by TPMs/DRM or “digital locks.”

Manufacturers place Technical Protection Measures on our media and devices in order to control our use of these things we own.  They don’t want to draw attention to this; if they did, consumers might choose not to purchase the goods.  As you can see from the examples shown, TPMs are capable of far exceeding “copy protection” and in many cases TPMs are currently employed to artificially impair the media or device to force consumers to upgrade or buy a new one.  Which sounds rather like fraud to me.

What most consumers see is that something is broken.  Some of us will take the digital goods back to the retailer, who will do their job and sell us a new one.  Never mind that adding material that might be repaired but for Bill C-11 — perfectly good digital equipment — to our landfills is hardly in the public good.

Before Bill C-11, if the TPMs manufacturers added broke the goods we purchased, we could repair them.  If the TPMs prevented us from accessing media that we were legally entitled to access, we could circumvent them. Or get someone who knew how to circumvent or repair them for us.  Bill C-11 will make this illegal.

You can’t see most TPMs with the naked eye, so we can’t even tell if it is there because most TPMs are hidden.  Which is why:

Bill C-11 Must Add Warning Labels

Citizens must be told:

  1. that TPMs are present, and
  2. what they do

Citizens can not be reasonably expected to follow the digital lock provisions of Bill C-11 without the inclusion of mandatory warning labels informing/explaining TPMs to consumers on “protected” media, including:

      • movies,
      • music,
      • games,
      • software,
      • eBooks,
      • images,
      • services,
      • etc.

and on “protected” digital devices such as:

      • Computers,
      • DVD players,
      • CD players,
      • game systems,
      • eReaders,
      • cell phones,
      • cameras,
      • digital drives,
      • scanners,
      • etc.

C-11 criminalizes circumvention of TPMs we don’t know are there

If Bill C-11 is passed without also mandating manufacturer warnings that inform consumers of the existence and parameters of the TPMs that we may not legally circumvent simply in trying to make our own digital media and devices work,

Bill C-11 will make all Canadians into inadvertent criminals

There is still a tiny bit of time left to contact our MPs and let them know we don’t want them to pass this Bill C-11 as it is There is still time to say “No”

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