Let’s Make It Easier to Expand the Public DomainJanuary 23, 2015
We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
An open secret among free culture fans is that it can be surprisingly hard to dedicate something to the public domain. Here's a simple idea for copyright reform: Why not fix that?
In the days when to get a copyright, you actually needed to fill out some paperwork, it was very easy to put something into the public domain. You didn't even have to do anything: public domain was the default. If you wanted something to be in the public domain, you just didn't file for a copyright.
Now, however, works are copyrighted as soon as they are written down or recorded. There's no opt out. And while a creator can license a work on very generous terms, copyrights only expire when they expire: 70 years after the author's death, in most cases. The law doesn't say anything about how an author might renounce her rights. It is certainly possible that a court, if faced with a dispute about this, would find that there is some “inherent” right to give up your copyright. One no doubt arising out of centuries of the common law. But there's nothing in the statute that mentions the possibility.
Of course, there are various authors and licenses that meant to dedicate works to the public domain–and they are all great, for authors that want to get their works out there, with no restrictions. While there is uncertainty about how easy it is to fully dedicate something to the public domain, it’s easy to get very close: You just offer up your work with a no strings attached, perpetual, worldwide license. This license would enable anyone on earth to make copies of your work, distribute it, perform it, or make adaptations of it, without permission and royalty-free, unconditionally.
But while it's close to the public domain, there are still a few troubling gaps. As the Creative Commons public domain license states, a creator can only waive rights “to the extent allowed by law.” One right that all creators have is to undo copyright transfers and licenses after thirty-five years have passed, under some conditions. So a creator who writes a novel and signs away her rights can get it back–and a creator who has granted to someone a “perpetual” license can cancel it.
This right of “copyright termination,” as it's inelegantly called, is inalienable–that is, no matter what contracts an author signs, and no matter how much money he's paid, he can always take back his original copyrights and end any license during a certain window of time. The right very clearly applies to the original author (or her heirs), not some later person or entity who might own the copyright, and it can be used “notwithstanding any agreement to the contrary.”
This doesn't mean that in thirty-five years a copyright holder gains the right to stop offering a work under some license. Every copyright holder already has that right. A copyright holder can offer a work under a commercial license one day and the GPL the next, or under different licenses to different people at different times. The fact that a license is “perpetual” doesn't require the copyright holder to keep offering the license; it just means the license, once granted, can't be revoked.
Except it can be. Copyright termination means that any license, including a perpetual public license, can be revoked. This means, for example, that contributors to projects like Wikipedia (where an original contributor continues to own the copyright to her work, but licenses that copyright under a liberal license) can revoke that license. It also means that people who transfer actual ownership of their copyrights to stewards like the Free Software Foundation can claw back that ownership.
This might be tricky in practice, particularly when it comes to licenses, since the law requires that the original author give notice to all “grantees.” Does that mean everyone who has a copy of the work, and when does the thirty-five year clock start ticking for each of them? This could be very difficult to figure out when it comes to, for example, some popular free software projects. But it introduces an unnecessary degree of uncertainty to FOSS software projects generally, to Creative Commons-style licensed works, and so on, particularly those that use a formal transfer of copyright title, where there is only one grant to terminate, instead of potentially millions.
But it would be easy to fix this. One way would be for Congress to eliminate termination for “public domain” licenses, and perhaps also for some kinds of public, royalty-free licenses like the Creative Commons licenses or the GPL. This path, rather than a full-on statutory acknowledgement of copyright abandonment, would allow authors to continue dual licensing while making a public domain license identical to the public domain in all other respects. It thus provides the benefits of a dedication to the public domain without taking away all of the benefits termination is supposed to provide (in the classic case, protecting artists who sign exploitative contracts with companies because they have so little bargaining power).
This was a tough post to write, since it's not fun pointing out that there may be problems down the line for some popular free licenses. Also, I like the idea of non-transferable, inalienable rights and I would like to see more of them, not fewer of them. But this is a case where these two ideals are slightly in tension, and it's a problem which should be relatively easy and non-controversial to fix. Copyright needs to be reformed in a number of areas, and this is not the most pressing. But copyright reform should include details like this as well as bigger fixes.
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.