Der folgende Artikel ist für bessere internationale Diskussion auf Englisch verfasst.
Abstract
An important question in the discussion about the new copyright, is the actual duration. Pirate Parties all over the world fight for its drastic reduction. While this goal is still desirable, there is a particular form of »collateral damage«. The licensing of free content, especially free software, often includes a so called »copyleft clause«, which implies that derivative works have to be published under the same license. This copyleft clause expires with the copyright which again especially implies a conflict with the open source philosophy. This article shows an actual copyright duration model which can solve this problem.
The duration of copyright is way too long. This is what all pirate parties agree about. The actual duration is still widely discussed. The politic platform of the German pirate party so far only implies the reduction of copyright duration to far less than in the TRIPS treaty. Most of the members agree that this means a decoupling of copyright duration from the lifetime of the author. The notion of copyright is to create a possibility for the author to make an economic profit with his work. There is no reason why a young author should have a longer time to do so than an old one. The coupling of copyright duration to the authors lifespan is only a relic of the outdated notion of »intelectual property« (sic!).
But how long should the actual duration really be? While speaking with pirates from different countries and even while speaking with different German pirates, durations from 3 to 50 years where mentioned. The mass of answers however was located from 5 to 15 years. This discussion was influenced by the appearance of Richard M. Stallman on the mailing list of the international pirate parties. I had the chance to speak with him on a protest march in Munich and I will now try to summarize the problems of the free software movement with our policies on short copyright duration.
Copyright and Copyleft
The licensing of free content – especially free software which I want to focus on from here on – often includes a so called »copyleft clause«, which implies that derivative works have to be published under the same license. The goal of this clause is to ensure that free software or parts of it are not used in proprietary software. A part of free software is the open source philosophy, which states that the source code of the software has to be freely available for everyone. That way everyone can contribute to make new and/or better software out of the existing. An important part of the philosophy is that these advancements in the free software also have to bee free. So the notion of the copyleft clause is to ensure that proprietary software cannot be made out of free software.
The problem now is, that the copyleft clause expires with the copyright, i.e. everyone can include the freely available source code into his software once the copyright expires. But even if the right to freely copy the resulting software package is given by law, the source code to this software does not have to be freely available anymore. So when the copyright expires after five years, proprietary software can use the code of free software without publishing its own code.
Stepwise Copyright Duration
One attempt to solve the problem is to establish different copyright durations for different types of software. The basic notion is, that an author publishing his work under a license granting more rights than »all rights reserved«, gets more copyright duration for his work, to have longer time make profit with it. Or applied the other way round to be more understandable for pirates, a free license should be the standard, if someone wants a more restrictive license he has to accept shorter durations. For specifing these granted rights the copyright holder issues a general license for the whole public.
We will now see an actual implication of this model. Let’s say the basic copyright duration for »all rights reserved« (Level 0) is 8 years. The following rights granted in the general licensing[1] expand the copyright duration:
- Granting the free non-commercial use and copying of the work
- Granting the free commercial use and copying of the work
- Granting the free right to make derivative works
- Publishing the sources to the work
Each of these bullet points increases the level of copyright duration by one. Copyleft can be included in any of these levels but would not make sense without the right to make derivative works. The actual duration as well as a licensing example is given in following table.
Stepwise copyright, other demands of the pirate party platform and natural restrictions
Some might argue, that this form of stepwise copyright duration breaks with current pirate party platforms, since we already demand the right for free non-commercial copying. Furthermore some aspects are good for software, but hardly applicable to other forms of work, like publishing the sources of a painting.
For the first aspect it has to be made clear, that the level thresholds can not only be passed by licensing, but also by legal or natural restrictions. After the free non-commercial copy becomes law, all works automatically get to level one. If the published work already equals the source, for example plain ASCII Test, there also can be no level zero works.
Forms of work, where one of the thresholds is not applicable cannot get to the corresponding levels. This might sound harsh at first, but these forms of works normally profit from the natural restrictions. One might not be able to publish the source code of a painting but nobody can make an exact copy of it, too.
Summary and conclusion
Stepwise copyright duration serves two purposes. The first one is to break with the notionof »intellectual property« and applying the actual granted rights to the duration. Thesecond one is to preserve copyleft clauses, since free content is always licensed with a wide range of granted rights and benefits from long copyright duration. In the authors opinion this could be a great step in the development of the pirate party politics.
[1] roughly drawn like in the GPL and the Creative Commons license models
Andis Blog 
10 Kommentare
2010-10-29 um 2:36 pm
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2010-10-29 um 4:05 pm
Boris Turovskiy
Ahoi,
firstly, I’ve constantly claimed that the discussion about copyright duration – i.e. about when works are irrevocably placed in Public Domain – is hopelessly overrated, and I stick to this. It seems to me that a much more important question is which limits copyright itself should have (i.e. no restriction of non-commercial use and copying; widened exception for citation rights and fair use; exceptions for scientific and educational use; and so on) than to argue about whether we should limit the duration to 5 or 7,5 or 13 or 42 years.
secondly, I’ve heavily criticized Mr.Stallmann’s positions on many occasions (one posting on this can be found in my pirate wiki page: http://bit.ly/dCRR0r). I do not support his claim on the vital importance of open source for freedom, nor his total refusal to make a distinction between commercial and non-commercial use, nor do I approve of the way Copyleft depends on copyright legislation to be enforced. While we obviously should consider Free Software when talking about copyright reform, I don’t want for Pirate positions to change instantaneously as soon as the FSF says mimimi.
On the subject matter itself I have to add that I’d be perfectly content with copyright durations of 30-50 years, IF the limitations of copyright itself (as listed before) are severe enough. In that case, the Free Software problem would also be solved, at least to the extent that no commercial proprietary software may use free source code. While that would allow proprietary non-commercial software to use the code, that’s actually something I would welcome rather than condemn.
Best regARRRds,
Boris
2010-10-29 um 4:15 pm
Boris Turovskiy
Oh, and before I forget it, one more very important point: Correlating copyright duration with licenses used would make the license incompatibility problem – which is severe enough as it is – that much worse. Suppose you integrate a CC-BY work in a CC-BY-NC-licensed work; what would be the copyright duration of the resulting thing? Would it end with the (shorter) CC-BY-NC, thus effectively stripping away the protection granted for CC-BY?
Remember, making copyright simpler is among our goals – we want everyone to be able to navigate the legal waters of copyright without a team of lawyers. This is a step in exactly the opposite direction.
Boris
2010-10-29 um 5:31 pm
Musikpirat
Boris, once again you prove that you have no idea about cc licenses… A combined work’s license is not a mixture of the single licenses. And if you combine a cc-by-work into a cc-by-nc-work, the cc-by work is still – guess what – cc-by licensed.
2010-10-30 um 1:52 am
Boris Turovskiy
Mixture of licenses? CC-BY-65%NC?;)
I specifically avoided the SA licenses, where you would have been right (and it would also be much more difficult to combine works with different licensing). For a cc-by work you can distribute derivative works under any license as long as attribution is retained.
2010-10-29 um 5:25 pm
Rodrigo
First, why did the copyleft? Because people needed to guarantee their social practices in a world governed by copyright, and copyright contradicted these social practices. People wanted to share code and copyright could be used to prevent this. Now copyright is the problem. Let’s remove the problem: a world without copyright. Is there free software in this new world? Sure. But copyright is not eternal. All code will fall into public domain some day. And in the public domain, you will have safeguards to share, modify, etc. the code with no more hindrances of copyright. So the question of the copyright’s duration is not relevant to free software. Except if exist or not the copyright. I know it’s hard to understand the value of the public domain in a world governed by copyright, but understand, a public domain work is precisely valuable because it is not covered by restrictions of copyright. You could say: „They will get my code and sell or will change the author of my code, they will put someone’s name.“ But that would amount to get Romeo and Juliet (a public domain work) and put your name on the cover and make money from it. Thinking Globally, more people would read the book originally written by Shakspeare. So the public domain is valuable. A work in public domain have more value, in terms of human culture, than a copyrighted work.
2010-10-29 um 11:16 pm
Crosbie Fitch
Stop pissing about.
Just abolish copyright.
No need to get your knickers in a twist about short terms.
Anyone who demands people’s liberty to copy should be suspended in order to restore it is a moron.
2010-10-30 um 2:17 am
Anders Andersson
I agree with Boris and Rodrigo here, on the issues of copyright duration vs. its scope and the legal basis for „copyleft“ licenses, respectively.
On the duration (term of protection): It’s an arbitrary period of time. No particular term will satisfy everyone; those who have already made big investments (of time and money) in protected works want longer terms, and those who intend to make big investments building upon existing works to create new ones want shorter terms. In practice, we end up with whatever is the average of the wishes of each side, weighted by their respective lobbying strength. If you compare the amount of money invested over the past 70 years with the amount of money already allocated for investment over the next 70 years, you can see where this is taking us. Have you opened bank accounts for your great-grandchildren yet? But even if we managed to set the term back to 14 years, it would hardly stay there by itself. Besides, few artists alive today will care whether their works will be protected for a mere 14 years from now or 70 years past their own death.
In contrast, the exact nature and implications of copyright protection while it’s still in force (the scope of protection) is of vital importance to the works being produced now. What about private/fair use? What about quoting? What about remixing? What about performing? What about disclosing information on where copies can be found? These exceptions from protection are also in a state of flux, just like the duration, though the exceptions have qualitative aspects, not just quantitative ones. Either you allow private copying, or you don’t. Either you allow remixing, or you don’t. The choices are not just arbitrary numbers.
As for the background of the „copyleft“ philosophy, it clearly depends on the system of copyright, in particular the legal environment in the United States in the late 1970’s and early 1980’s. Without heavy restrictions on the disclosure of computer software to non-licensees, Stallman (or anyone else, for that matter) would never have felt the need to break with „business as usual“ and make an effort to circumvent the system, cleverly turning it against its own shortcomings. It’s like using the cold snow to build an igloo in which you can warm yourself up; if there hadn’t been any snow but rather sunny and warm, you would have had no use for an igloo, but you would probably have survived anyway.
Some may argue that without any copyright at all, there wouldn’t have been a computer software industry. I don’t agree with that, but I admit that it would probably have looked a lot different from the industry we know today. In any case, I’m not willing to introduce restrictions on freedom in general just so that we can liberate ourselves from half of those restrictions. And my argument would be the same whether we had already introduced the original restrictions or not (here I believe I’m in line with Crosbie Fitch above).
I’m also not very keen on creating an even more complex system just to tailor it to numerous incompatible demands. The copyright system is complex enough as it is. I’m not opposed to people creating all sorts of licenses, including CC type licenses, as long as they can do that within a single legal regime. Specific licenses should not be hardwired into law. In effect, I’m advocating a single term of protection for every creative work, from computer programs and games to paintings and architecture. True, a video card driver may not be commercially exploitable for as long as a fine art portrait, but different genres of art interlock with each other seamlessly, and we don’t want the law to establish artificial boundaries between them. The more complex the legal system is, the more of your efforts will go to feeding lawyers and scammers rather than programmers and artists.
2010-10-30 um 5:42 pm
Pat Valio Maechler
I generally agree with Anders Andersson here.
It’s also rather unlikely that within the next 50 years we will abolish copyright or reduce it to less than 14 years; and 14 year old software that has not been updated (=grants a new copyright on it) is a joke anyway, may it be open or proprietary.
On the other hand I also strongly advocate that pirate parties should push the usage of open licenses of almost all sort.
This is a mere strategic step:
1. Open licenses show the benefits of having a non-restrictive copyright.
2. Encouraging creators to use non-restrictive licenses is a non-normative way to break with the established copyright regime; probably pirate parties will never succeed to change copyright itself for the better.
Keep in mind: The fight we have would be completely different if the copyleft movement wouldn’t have come into existence. Of course pirate parties shouldn’t change their position instantaneously because of ‚em, but they may should consider to show some appreciation to them.
2010-10-31 um 6:02 pm
Atis
I don’t think that shortening copyright term would cause any harm to Open Source Software, because:
* Copyright term is counted from publishing
* Free software does get updated often
* So it gets new copyright term from each update
* Old versions slowly expire copyright and fall into public domain
* After expiration anyone can use old versions in commercial products, because they have been around too long.
It would rarely be possible to actually use old version without some later patches, but if it is, then it simply should be so.
For example take Apache 1.3.0 which has been released in 1998. If Copyright term would be 10 years, it would be public domain by now. Now the question is – how bad would it be – to allow anyone to include it within proprietary software package? It does lack a lot of updates written by thousands of developers in last 12 years, so even if somebody would include it, they would have to add their own bugfixes, features, etc.. Of course, those bugfixes would have to be written from scratch, because later open source bugfixes would still have copyright in force. So, would such proprietary developed bugfixes be in any use for open source community? Try submiting a bugfix for 10 years old version in any bugtracker, and you’ll see.