Scholarly legacy: an argument for open licensing now?

March 31st, 2008 by Tom Elliott

Back in November, Gabriel Bodard posted about the importance of attaching explicit licenses (or public domain declarations) to on-line works so as to clarify for users how they can, and can’t, use these works. A new post by Cathy Davidson (“Permission Denied” in Cat in the Stack, 31 March 2008), highlights the case of an academic author who has been unable to include in his book various images of artworks created by the subject of that book because the artists’ heirs have refused permission.

Which all makes me wonder: is explicit release, in one’s own lifetime, of a work into the public domain or under license terms that permit redistribution and remixing, sufficient to prevent post-mortem claw-back by one’s institutional or personal heirs?

3 Responses to “Scholarly legacy: an argument for open licensing now?”

  1. Michael Shamgochian Says:

    The heirs are able to “claw-back” because they inherited the copyright. The artist’s heirs in “Permission Denied” steps into the shoes of the artist. It doesn’t say whether the artist intended to “irrevocably” grant permission—thus, the artist himself, or his heirs, could certainly withdraw that permission (unless they agreed otherwise).

    Putting a work under a Creative Commons (CC) license is somewhat irrevocable; you (or your heirs) could stop distributing the work under the CC license, but all copies made under the license would be perfectly legal.

    It’s not totally settled that it’s even possible to place a work into the public domain. CC gives it a try, and in their “Public Domain Dedication” ( ) it says:

    “Dedicator makes this dedication for the benefit of the public at large and to the detriment of the Dedicator’s heirs and successors. Dedicator intends this dedication to be an overt act of relinquishment in perpetuity of all present and future rights under copyright law…”

  2. Charles P. Schaum Says:

    The issue is certainly complex. What is the public interest to have a public domain, who administers it, and how does it engage private rights?

    When the US extends the duration of copyright to protect Mickey Mouse, one has to question what that means. Or do they?

    Put another way, the only way I can protect my real property and other investments for myself and my heirs to avoid government taking what it wants is to put that in a trust. Is a copyright little more than a means to a will to power in the guise of intellectual property, or is it really a trust?

    For example, the Disney corporation would like to hold Mickey in perpetual copyright, even though Mickey was but one instance of several similar cartoon characters of the period and hardly “original.” But he was evidently original enough to be under copyright. But can a private citizen protect his or her rights like a big corporation or university? Or does copyright actually mean something different to the haves and the have nots?

    Might the same be said for various permutations of the copyleft? After all, someone has to act for “the public” and that will likely be a collective entity, not an individual. Then there are the host of licenses like MIT, BSD, LPPL, CDDL, et cetera that have various terms, some of which are considered more or less free depending on whether, for example, a BSD license might allow a corporate entity to develop a more competitive, closed-source permutation. Yet how is that any more free than a developer that relies on a collective to manage his or her rights?

    Who actually determines what is public? Is it actually voted on or is there an elite guild that makes such decisions, whether in the sciences or the humanities? Who determines the aesthetic barometer? That has been a thorny question. For example, everyone from Emil Seidel and American socialists to Adolph Hitler and German Nazis to a whole raft of political parties in Europe and America have found it beneficial to argue for some sort of rights and emancipation from the profiteering of industry on behalf of the workers and/or middle class. What does such freedom really mean and is it context-dependent? Moreover, if it is context-sensitive, can intellectual freedom be considered a universal?

    Another example: For some months, the Internet Archive has been hosting pirate copies of copyright works posted by the Universal Library. Some of these works have been posted under altered or bogus titles in order to avoid immediate location by search engines. Not only the publisher for whom I work but also a number of others have lost thousands of dollars worth of revenue. That steals from the company’s ability to pay me and threatens my pay check and family. Negotiations are in the works to remove these titles. But corporate rights also do affect “regular folks” as well. I am by no means anywhere near rich.

    So can the Universal Library, a project funded by India and China, simply launch a wholesale attack on copyrighted material based on public interest?

    Can acting on behalf of information freedoms be just as injurious as acting to suppress those freedoms? Who has the greater claim? Those moving on behalf of the public or those holding the copyright?

    Another example: What if I release an image or text into the public domain for “freedom’s” sake, only to see it distorted or used by my ideological or moral opposites to undermine the purposes of making it free? If I have few resources and no rights, while they have better funding, resources, and the like, has that freedom actually been undermined?

    You cannot legislate morality. Neither can one protect rights by simple reliance on automata like copyrights. Sometimes an institution or corporation finds its best interest in releasing property under a free license. That often happens by having important conversations in the social discourse. Perhaps the real issue is whether the human ability to communicate in a meaningful way has been eroded by the background noise of the virtual reality that continues to encroach on a couch-potato culture that looks to its navel or genitalia for true meaning.

  3. Summer Glau Says:

    I should like to respond just briefly to point out some of the most egregious fallacies in Charles P. Schaum’s meandering comment (above).

    (1) The majority of work available to read has always and will always be in the public domain (the Classics, English and world literary greats, medieval and early modern scientific writings, and even a goodly chunk of early twentieth-century text). It is the concept of long-term copyright that is unusual and a government-imposed restriction on artistic freedom. (This entry in the Lessig wiki argues cogently that copyright term extension would be more unjustifiable and do more harm than allowing works to fall into the public domain as currently.)

    (2) It is an error to confuse arguments in favour of Open Access, Creative Commons, or Public Domain licensing of scientific works with copyright reform. One can put a work in the public domain or waive certain aspects of copyright under current intellectual property laws. One can argue for the importance of (voluntary) Open Access publishing without having any desire to change the legal status of copyright as it stands.

    (3) It is an error to confuse a desire to reform copyright with support for piracy. Non sequitur.

    (4) It is even more of an error (or a deliberate and dishonest muddying of the waters) to throw in (n.b. unsubstantiated) allegations of criminal activity alongside arguments against Open Access. In any case, you will not be able to demonstrate (argue perhaps, but not demonstrate) that any piracy of works owned by your employers has lost them a cent in earnings, much less that it has cost you your job. It has been demonstrated again and again that users who download free texts are not the same as those who would have bought your products in the first place.

    (5) As Godwin pointed out, arguments comparing ones opponent to Hitler (or as in this case nameless or named-but-nonetheless-straw “socialists”) are a sign of desperation, they add nothing to the argument, they weaken your position, and they are additionally obnoxious and prone to get you ignored. Association fallacy, at best. In this case additionally erroneous because there is no comparison between confiscation or nationalization of private property and a legislated limit on the term (and extent) of copyright.

    (6) “You cannot legislate morality.” Of course you can: that’s why murder is illegal.

    (7) Like the reductio ad Hitlerum, the carelessness and vulgarity in your final paragraph is liable to prevent your argument being taken seriously and in assumption of your good faith. In fact I’m surprised this comment was not intercepted by the spam filter (wp is usually pretty brutal about this sort of thing).

    (8) The entire thrust of this rant is in any case irrelevant to the topic under discussion, because no putative wrongdoing or potential future abuse of power you might fear changes the argument for Open Access licensing of scholarly publications. These are important topics, but this thread should not be used as an excuse to bang drums and flog horses that are at best orthogonal and have been better thrashed out elsewhere.

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