Introduction: A world adrift
A little fiction to start with...
Instructions: Imagine today's world with these data
A few milleniums ago to use an "e" one will have to pay me royalties... What if you tried your first speech ? (Have your wallet ready !!) Milleniums ago, mankind had to round a major cape: the invention of writing and alphabets. A little ahead on my time, I quickly glimpse the interest of protecting the letter "e" with a restrictive licence. From now on, every time you wish to use this letter, pay ! Or reduce your ambitions ;-)
We are in a workshop in Mesopotamia, 3500 years before Jesus Christ. By a stroke of genius (mainly inspired by nature ! But Hushhhhhh...) I have just invented the wheel ! A little ahead on my time, I quickly glimpse the interest to protect this invention by a restrictive license. From now on, every time you wish to use a wheel, you will have to pay royalties... Imagine what your current life is like now !
350,000 years ago, on the edge of a cave I have been trying for days and days to reproduce the fire we cherish and maintain when it falls from the sky. And then finally I come across the "reproducible method". A little ahead on my time, I quickly glimpse the interest to protect this invention by a restrictive license. From now on, every time you wish to light a fire you will have to pay royalties... Imagine what your current life is like now !
Now let's turn into reality
An Australian company succeeded in placing a license on a human gene bound to a precise type of cancer. Result: In order to study this gene to find a drug, you pay ...
"A" is a Polish company that sells books online. Apple took this company to court for misuse of his "brand" ... and yes, the website of "A" was a.pl.
A primary school teacher had launched a blog on which she exchanged with her pupils some French exercises. She was taken to court by the daily paper "Le Figaro" for misuse of its brand mark...And yes, the blog of the teacher was called " Madame Figaro's blog " (but Figaro was really the lady's name).
Monsanto reattempts once more to place its soybean seeds under the control of a license, preventing any forward person who has not paid royalties to re-sow the soybean seeds produced in his own field.
Several newspaper companies (Canadian and German) try to pass or have passed laws to prohibit the right to make links to their content without paying royalties first.
Thus, an Irish company asked 200 euros by hypertext link to its content.
A Canadian company demands 150 euros for the use of a simple extract of its contents (which is just like eliminating a previous law: the right to quote).
The I will Shoe Company has registered "I will" as a trademark. On this legal base, the company takes to court those using these words... Until now, it has only taken to court direct competitors (like Nike for example). But who will be next ?
The content ID which permanently scans videos posted on Youtube led to the withdrawal of several videos on the pretext of violation of copyright. The video of an amateur of nature is to be withdrawn because of birdsongs in the background (recorded straight in the wild) because recognized by the ID as violating copyrights (by mistake of course).
The amateur video of russian meteorites was considered as violating the copyright because one could hear far off a song on the radio...
Quite a lot of authors alerted by the robot on possible violations of their copyright prefer not to step in to share the advertising income generated by Google.
Discussions are taking place currently to place DRM on HTML5 language. This would prevent the "free" use of this yet universal language which is the basis of the Internet.
Audi has registered an IP licence on the letter "Q" to protect its car the Audi Q... we come here to limits which raise questions... protecting simple letters jeopardize the simple act of writing !
The DRM (digital rights management)
The DR aim to control the use made of digital works. These devices can be applied to all types of physical digital media (records, DVD, Blu-ray, software, etc.) or of diffusion (TV broadcast, Internet devices, etc.) thanks to a system of conditionnal access.
Limiting copies is only a superficial reason for the addition of DRM to a technology. DRM completely fail when it's about preventing copies, but they are highly effective to avoid any innovation. Indeed DRM are covered by the anti-circumvention laws such as the famous 1998's DMCA (US Digital Millennium Copyright Act) and the 2002's EUCD (EU Copyright Directive) ; each one turns circumvention into a crime, even if the law is not broken.
Why are we here?
The advent of open licenses or of licenses easing broadcast, L'arrivée des licences ouvertes ou facilitant la diffusion, the always easier and larger virtualization of data and knowledge and 3D printers which allow do nearly everything have highly stiffen governments' position (under the lobbying of companies) concerning copyrights and intellectual property.
A fundamental shift is underway to restrain freedom...
Rights managers which see those rights constrained by the arrival of the web and digitalization exercise an important lobbying with states.
States as for them are unable to organize a real public debate on the question and are influenced by lobbies
Finally semi-finished technics (web server, sharing platform...) are pressurized to implement tools for the protection of copyrights of the works on the server. Willing to protect themselves, they are a part of the general hardening of copyright.
There are worrying situations of rights limitation which will have dreadful consequences across the world !
Reaction is getting organized but it must be supported beacuse opponents are fierce and well equipped.
Copyfraud
Wikipedia: Fraudulent copyright's claim, for example claiming rights on public works.
We are seeing more and more layings of copyrights on works or objects that should not be subject to rights (e.g. the ban to take photos of Mona Lisa in the Louvre). These rights are illegal but uncontested because now nobody defends the public domain (little clarified in the law).
And nevertheless
A concrete case :: Let's protect Mickey !
Isn't Walt Disney's success resting to a large extent on the fact he drew freely from the heritage of the tales and the legends, which became meanwhile literary models of the public domain? Disney, among others has given life to iconic characters such as Snow White, the Little Mermaid, or Beauty and the Beast. He changed them, "remixed them", reincarnated them. The result made him rich This commercial success lays its toot on the use of a common cultural inheritance.
The result is a "duty of restitution" to the community.
Or should it be possible to claim exclusive rights to operate for 120 years - i.e. beyond the creator's death - something originating in our common culture?
Disney should rather leave Mickey Mouse and Donald Duck to free exposure to public, investments having already been covered several time.
A society must be able to rely on its unlimited creative capacity to produce new works. Creators must be able to draw freely from the wealth of cultural patrimony. Our culture is an inexhaustible reservoir of stories, images, musics and many other things - provided that access to the property is not hindered or rarefied. Culture depends on the contribution of each one and does not try to avail itself unfairly - "for eternity less a day" - of private rights on cultural goods.
Open licenses: brief reminder
Free licenses are just tools for mankind to organize the framework of cooperation. Hence they impact on our practices as much as we impact on them and therefore there is a risk of preventing – or favoring – the appearance of new uses.
These free licenses base the legal support of a movement which we call " the free ".
There are several licenses, some more open than others, some more specific to certain, some more specific to types of works than others...
There are nearly a hundred ! Some standards are nevertheless imposed by organizations such as the Creative Commons Foundation and Open Source Initiative.
Two important licenses
The GNU GPL (General Public Licence)
It's the first free license. It appeared with the first free and open source software. Historically meant for software, it is getting more and more documented and its scope is expanding !
This licence allows 5 things :
1: the free right to use a program whatever the goal.
2: the free right to seek how the program works and how to adapt it to one's needs.
3: the free right to transfer the program to others and to make copies for others.
4: the free right to improve the program and to give free access to these improvements for the general benefit.
Freedom 2 and 4 implies an accessible source code.
This is of paramount importance but is not always the case with "application" via other licenses (like Creatives Commons licenses for example - see below) Thus, it is compulsory to provide the "source code" of the work in a readable-by-all format and without constraint. Sharing "source code" in PDF format is not suitable here because it is not readable and cannot be copied without the possession of a particular program (not free itself)
And freedom 3 and 4 ignore author's rights as far as the author's explicit consent has not been asked for. With the licence, there was no need to ask for the author's authorization: it was already granted.
However, these four freedoms are not sufficient as each person who alters a program or develops it becomes ipso facto co-author. So users should ask for agreement in order to work on the upgraded version and send it to others. In case the new author refuses permission, the users' freedom would be jeopardized again.
5: The copyleft obligation or the obligation to share one's work in the five freedoms mentioned above.
The copyleft knocks down the original intention of copyright. While normally the copyright implies no obligation for the author and allows almost nothing the user, the copyleft proceeds on the contrary: it allows many things to users, it guarantees the four freedoms and obliges future authors to grant to users of their own improved versions the same rights as those of whom they took advantage themselves. The free character of the work published under GNU GPL licence is then secure for an indefinite future and for any new development. Creatives Commons licenses
What works with software (via GNU GPL licenses) can also make sense for other kinds of work such as texts, images or music. It is the underlying idea in the Creative Commons Project ( DC), that proposes for these works a whole pallet of licenses, among which every author can choose the best one for their needs.
The author can then decide if the copyleft principle here named "Share Alike" is important or not, and if he wants to allow or prohibit its commercial use. There is also an option to prohibit completely any change in the work. So that all Creative Commons licenses do not necessarily give the five freedoms in their entirety.
If we want to keep in mind the actual openness advocated by the GNU GPL license via the Creatives Commons licenses, we will therefore ensure :
that our works are under CC BY SA license
that they are accessible and alterable through free programs (open office or else)
An example to illustrate
Sésamath the current Math teaching network: http://www.sesamath.net/
Created in 2001, Sésamath is a recognized public interest and non-profit association.
Its goal is to favor :
the use of computers in the teaching of Math ;
cooperative work an co-training of teachers ;
the services of support in the students' learnings.
Registered in a process of public service, Sésamath is committed to the values ??of free software. In 2007 and among 68 projects from 51 countries, Sésamath got the 3rd price from the UNESCO for its use of NTIC.
Sésamath distributes free and collaborative textbooks and notebooks for all levels of high school.
On their website dedicated to these works, everyone can download them for free and adapt if they wish.
From the start, Sésamath chose to use free licenses
the GNU FdL (to give a real access to its works' source codes and allow their alteration/modifying)
the CC-BY-SA (to insure virality: pour assurer la viralité: the preservation of works withion commons)
Thanks to this voluntarily very open choice, Sésamath was able to capitalize on the individual contributions of the network's members, to produce more elaborate contents (we shall speak about grade 2 of wealth to - see below) which could then be financially valued. This valuation has allowed the association to perpetuate its activity without losing the first sense of its action: proposing one space of cooperation and skills' mutualization between Math teachers.
On the contrary, a French teachers' network tried the Sésamath experience but failed because from the start, the chosen (or the unchosen) licenses did not allow them to develop their collective productions.
Why do restrictive licenses prevent financial valuation of networks' productions ?
Before going any further, the notion of grades of wealth in a network must be explained. grades of wealth in a network.
In a network's life, several grades of wealth can be observed:
Grade 1: it's the juxtaposition of the individual wealth brought by each member
Grade 2: it's the gathering of the network's derived and coproduced productions (done with the individual wealth of each member)
Grade 3: it's the gathering of derived and coproduced productions done by the network and the networks with which there is a mutualization of Grade 2 wealth.
From grade 2, the produced wealth are generally of sufficient quality that to consider a financial valuation.
Organization chart of a network's life
Grade 1: the networks gets organized and compiles the contributions of its members.
Situation 1
OR members discuss the status of contributions of each and consciously choose to place their contributions in an open license (really open so unrestricted to commercial use - CN of Creatives Commons licenses -)
This implies that anyone who does not agree withdraws its contributions
Situation 2
OR this topic is not clearly discussed and individual contributions are placed under open licence but without the author-members being fully aware of it.
Situation 3
OR members prefer to protect their contributions by a more restrictive license (like Creative Commons license BY NC SA) and therefore no commercial use without permission of the author.
Grade 2: the network grows and produces collective works relying on wealth of grade 1 (the personal contributions of members). These productions are "rich" enough to initiate a financial valuation.
Situation 1
Thanks to open license, collective productions can easily be exploited even if certain members of the network are not present any more! Each having beforehand authorized the valuation of its contributions for the mention of its name and the preservation under open licence. This being also valid if a member of the network seizes grade 2 wealth and sells them... It is true that it will cause tensions within the network and that this membership might not last in the group ... ;-) LIFE
Situation 2
One (or some) members seizes grade 2 productions and sell them.
Author-members feel cheated and try to prevent the sale... which is impossible because grade 1 productions are under open licence.
The networks blows up ! DEATH
Situation 3
The licence not being fully open, the network has to ask each member's (author) agreement for any commercial use of the production.
Most of the time, this step is so complicated that valuation crumbles down and the networks melts with the disappointment of not having experienced the interesting stage of a network (i.e. the collective production and the external valuation of it). DANGER.... DEATH
The strength of Share Alike licenses
Networks having chosen Share Alike open licenses have an important spiral effect.
Their productions being often important and of quality (because they reached more easily the grade 2 of wealth, see Sésamath), they are regularly requested to exchange contents with other close or similar networks.
If these networks have chosen a more restrictive licence (Uncommercial for example) exchange is very difficult because productions of the "open" network (network 1) need to be used or adapted by "the less open" network (network 2) to be shared alike... which means under open licence ! Which forces the "less open network" (2) to make a choice:
or I benefit from the wealth of the open network (1) but then I have to change my less open for the more open licence of network 1 ;
or I don't want to change my licence and I look with envy and despair all the wealth I could have shared and the grade 3 wealth (those highly valuable) we could have created together ;-)
Questions which often occur
I am going to be robbed if I don't put a NC clause
Yet it seems that this non-commercial clause is vague and difficult to interpret.
So, almost every case leads to a particular solution.
In addition, most of our networks do not have the means to engage in a costly legal battle...
Besides the question of the meaning of this action... If I do not want my work to be used for commercial purposes, perhaps it is better not to put it under a Creative Commons license.
Finally, protecting its contents and commercially exploit it can be counter productive.
Indeed, by demonstrating to the private sector that your productions are profitable, you prompt them to use them. Your productions being under a Creative Commons license, these companies can take in and alter your productions to adapt them (with big means that you don't have... even by investing at loss for a few years). Once altered, these productions can be exploited with the help of lawyers and marketing agents and absorb all your market (and then leave you pennyless, which is the contrary of your first aim to make a living with your production;-)
Thus it is better to play on the ground of open licenses, the ground which puts companies ill-at-ease and on which
your association and its suppleness (the move ahead) is more effective.
Besides your freely accessible and alterable work, if good, will interest people, whom happy to use it, will take care of it and maybe help back if necessary (even marketing agents who do not long for your death).
Example: Outils réseaux
Open licenses are not suitable for all
And it's true !
Before considering a particular license, think clearly about your goal !
If it is to live as long as possible on one production, open licenses are not a good choice.
If your goal is not the opening and diffusion of your productions, open licenses are not a good choice.
If your goal is to join the world's overhang, to take part in the diffusion of ideas, of knowledge, to help the development of services around this knowledge... then open licenses are to be explored (because they are a good tool).
Then why pay for the expertise of the plumber?
Very true ! Why do we pay for the plumber's expertise when he gets it from a traditional knowledge ?
First, when you pay the plumber, you mainly pay for his time !
But it's true that we also pay for his skill.
Knowing that the plumber's knowledge is available for free and for everyone because coming from traditional knowledge doesn't make it necessarily "approachable".
Let's imagine that the plumber writes you down an explaining note to replace the siphon of your sink... it's well written and very complete.
Let's imagine that he delivers this note for free (because coming from a traditional knowledge) and that he doesn't charge you for the equipment.
There you are tinkering, following the instructions left by the plumber, but something unforeseen happens. The tap snaps and the flood is threatening...
Guess how much you are ready to pay to have that very plumber back in emergency ;-)
What we are dealing with here is the level of skill that only your plumber has (in any case in the field of plumbing).
There are several levels of skills
level 1: I know it exists
level 2: I am able to do it too
level 3: I can also explain what I am doing
level 4: I am have skills in what I do, I adapt
level 5: I am critical about what I do and I invent from what I know
Your plumber's note take you up to level 2
But your plumber is at level 4 or 5
Which enables him to face unforeseen events and that is the level of skills you pay for, not the traditional knowledge of level 1.
Credits : Creatives Commons and David John Goodger - CC-BY-NC-SA
