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  • From: elliott bledsoe <elliott AT popcult.cc>
  • To: cc-community AT lists.ibiblio.org
  • Cc: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] [cc-community] Public Domain Mark - Invitation to Comment
  • Date: Fri, 13 Aug 2010 09:37:47 +1000

hello all

i agree with much of what has been said thus far regarding the potential for confusion around the purpose and objectives of cc0 and the pdm and the discussion of the norms (although i note that we're no longer discussing those :p).

so i turn to a MUCH MORE important issue with any such pd mark: things move into the public domain at different times depending on the country the creator and/or the (re)user is in. this begs the question; in which jurisdiction is the marked work 'in' the public domain?
presumably the majority of users of such a tool will be from the glam sector. and presumably they will be making such an assertion based on the expiration of the copyright term in their jurisdiction. this will create problems down the track.

to use a recent (and well documented - thanks amazon! :p) example i have written about before, what if a library was making available a html version of orwell's nineteen eighty-four or animal farm? orwell published them in 1945 and 1949 respectively. he died in 1950. in the us (and the eu i believe?!) they are both still protected by copyright until 2020. but here in australia, because of complexities in the copyright term amendments over the last few years, both books moved into the public domain in 2000 (which is why amazon should not have deleted australian customer's copies of the books, but i digress).

this mark does not indicate the jurisdiction-specific public domain requirements relied upon to make the assertion that it is in the public domain. this may lead to a situation where a (re)users in the us is relying on an assertion made by an australian collecting institution that nineteen eighty-four and animal farm are in the public domain (as indeed, in australia, they are). not too sure how to address the issue, but could get tricky. maybe as part of the declaration it could say something like: "the person who associated a work with this mark has indicated that they believe that the work is free of restrictions under copyright law in australia, including all related and neighboring rights. they make no assertion as to such status in other jurisdictions" (borrowing from luis' language).

just a thought. discuss


_elliott

elliott bledsoe
project officer, ccAustralia &
research assistant, CCi 

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A project of the Australian Research Council Centre of Excellence for Creative Industries and Innovation's Law for Creative Innovation research program in conjunction with the QUT Faculty of Law's Intellectual Property: Knowledge, Culture and Economy research program.

On 13 August 2010 05:59, Diane Peters <diane AT creativecommons.org> wrote:
HI everyone,

Before responding to the other comments provided on these lists, there is one matter that deserves separate mention because it bears on a category of comments raised here and elsewhere.  First, though, a huge thanks for the prompt and thoughtful comments so far.

Some of the comments are specifically directed at the suggested non binding use guidelines – or “norms” – that were published in tandem with the draft Public Domain Mark. In considering how best to respond to those comments, it has became increasingly clear that more explanation should have been provided on why we decided to publish an early working draft now, and how we anticipate they may fit into a fuller picture later.  I’d like to provide that explanation now, and then re-frame the issues on which we would like this list to focus and provide guidance. 

We’ve spent the last 1 ½ years – post publication of CC0 – working on CC0’s complement, a marking and tagging mechanism for works that are no longer restricted by copyright.  After many conversations and concerted pushes with potential adopters and others, we have come to realize a few things: 
  • A simple tool that clearly marks a work that is no longer restricted by copyright is in demand, now more than ever.  We see a variety of public domain statements (primarily “no known copyright”) statements proliferating on museum and library websites, and promoted on sites such as Flickr Commons.
  • Many providers of those works desire a standardized tool for marking them and facilitating their discovery over the internet.
  • Some curators and other publishers of public domain works would like to make (and in fact currently are making) requests about how works they restore, digitize and publish are subsequently used.  Some call these “use guidelines” and others call them “pleases” or “requests”, and some even border on (if not clearly cross the line into) contractual restrictions rather than requests.  They all differ to some degree if not by a lot.  But we have also discovered there are some important commonalities between otherwise very different communities in terms of such requests.
The PDM we have just published for comment is designed to address the demand and standardization needs that we've identified and are described above.  This is the tool that we plan to publish for adoption in September at v1.0 if all goes as planned.  We think it’s pretty close given close vetting with several stakeholders and adopters, and what is currently happening in the marketplace of Flickr Commons and elsewhere.  That knowledge, in combination with the wisdom of community members on this list and elsewhere, leads us to believe the PDM tool can be ready to serve those two specific purposes very well, and quite soon.  Rest assured we are already thinking ahead to further enhancements for later versions – including metadata and vocabulary to support assertions of facts about the work that can be used to confirm a work’s public domain status.  But that work will take time, and the need for standardizing and providing a basic mark is now.

The suggestions for requests, or norms – the third learning described above – we shared at the same time because we had seen patterns in the kinds of normative requests under consideration by potential adopters of the PDM.  They are not (and never were, nor would they ever be) intended to be “one-size-fits-all.”  More importantly, though less emphasized when published, they are not necessary to the success or immediate utility of the Public Domain Mark.  We thought they might be of interest and useful to discussions underway, but we were not planning to publish them anytime soon.  These two very important points should have been emphasized more in our initial communications.

We see now, based on this early discussion thread and elsewhere, that however well our intentions were, the two pieces – the PDM and any future norms work by CC or others – are better presented separately and at different times, so issues aren't confused.  For purposes of our work between now and when we hope to publish the PDM (alone) in September, we want to decouple the two completely.  We want to instead encourage the focal point of comments to be the PDM mockup without reference to the "general purpose norms" piece.  In this spirit, please focus comments for the time being on the PDM deed that does not support any metadata, or the metadata-supported deed but disregarding the norms information.  To be perfectly clear, that feature – the ability to associate norms with a work marked using the PDM – will not be standard for the PDM version 1.0 deed.

Responses to other comments on this thread forthcoming.  Also, a head's up that with all of the great feedback received to date here and elsewhere, we anticipate publishing a further iteration of the PDM deed very shortly.  We will alert this list promptly!

Warm regards,
Diane


On Wed, Aug 11, 2010 at 12:57 AM, Rob Styles <rob.styles AT talis.com> wrote:
I agree with much of what has been said, specifically

+1 for downplaying the norms, these should be PD works and therefore
have no restrictions on my re-use

+1 for making the statement clearly different to CC0, that is it
should clearly communicate a statement about the work, and not be
confusable with a waiver

+1 for making the statement attributable to someone, this has the
potential to allow authorities to appear and get recognition.

In terms of what it gives, even for works that "we know for sure" are
in the public-domain — it gives clarity for those who don't know for
sure. Those who don't know fall into two categories, people who don't
have the knowledge to discern for themselves and computers. The
machine-readable part to sit alongside existing licenses fills an
important gap.

What I'm unsure about is the liability. If I mistakenly release a
copyrighted work, with a PD mark attached, I will still be liable.
Those consuming it from me would likely not be given existing case law
(but ianal). If they were to pass it on the PD mark (my statement) may
help in their defense but is unlikely to absolve anyone fully. Is the
liability issue one of helping reduce the risk of civil proceedings by
consumers (rather than the copyright owner) in the event of a false
statement?

rob



On 10 August 2010 22:55, Brest, Iris <Brest AT carnegiefoundation.org> wrote:
> I agree with what has been said about non-binding norms, and note that several of them are not specific to public domain works and tend to confuse copyright with plagiarism.  But here's a question revealing my complete ignorance about this project as a whole:  How much is the identifier of the work as PD supposed to have done to verify that it truly is in the public domain?  I understand that the intent is not to create liability for error -- although I don't understand how that intent would bind an actual copyright owner -- but since the identifier of the work isn't the author or copyright owner, how much should he, she or it have done to verify, for instance, that this particular edition doesn't have elements still under copyright &c.?  If, as has been suggested, the mark is only meant for works that "we know for sure" are in public domain, what does the mark add?  Iris
>
> -----Original Message-----
> From: cc-licenses-bounces AT lists.ibiblio.org [mailto:cc-licenses-bounces AT lists.ibiblio.org] On Behalf Of James Grimmelmann
> Sent: Tuesday, August 10, 2010 11:35 AM
> To: Development of Creative Commons licenses
> Subject: Re: [cc-licenses] Public Domain Mark - Invitation to Comment
>
> I share the concerns that Douglas Campbell has expressed about the difficulty of a non-binding norm project.  Indeed, I'm concerned about the idea of a "group" or a "community" being a relevant actor for purposes of setting norms about the use of public-domain material.  Any such norms should flow with the group or community, not with the work itself -- because that would imply that the group/community could and should project its norms beyond itself, to anyone who comes across the work.  Part of the point of being in the public domain is precisely that one may take a work from one normative community to another, changing its context, its relevance, and its meaning.  That is, there are times when it's actually very important to insist on one's individual, stand-alone, atomistic, answerable-to-no-one legal rights, and the public domain can be a powerful source of such rights.
>
> I understand the attempt to get around those concerns by emphasizing that the norms are non-binding.  But this approach also swims in ambiguity; are the norms meant to have an effect on potential users or not?  That's going to vary from situation to situation, and confusion is likely to result among many possible users.  I think it would be better to release these norms as possible best practices for groups and communities and groups to adopt for themselves, and not to pitch them as applying to anything so broad as all "providers and users of material in the public domain."
>
> I would also add:
>
> It would be better not to say that the copyright holder "failed to register or renew copyright."  Instead, "did not register or renew copyright" would be less normative; "failed" suggests that they should have.  This is the same kind of rhetorical slant that comes from the phrase "fall into the public domain."
>
> What gives the "provider" of public-domain material. in general, the moral right to ask for "respect" in the form of, say, no modifications?  There will be some situations -- families disclosing an author's papers, for example -- in which respect seems like an appropriate principle.  But there will be many others -- say, libraries digitizing 19th-century public-domain books -- in which it doesn't make as much sense.  I doubt that this can be a universal norm.  ("Respect" in the form of clearly identifying any modifications seems more likely to universalize.)
>
> "Contribute discoveries back" is too broad.  If I make a movie based on the plot and characters of an out-of-copyright play, which transposes the setting to outer space, puts all of the dialogue in modern technical jargon, and is filled with special effects, people can fairly disagree as to whether I should also place the movie into the public domain.  There is legitimate principle here, but it is much narrower than the proposed norm.
>
> -----
>
> As for the mark itself, Luis Villa's point is well-taken.  In general, the PDM **needs** to reflect the fact that it is an assertion about the work, made by a third party.  The "No Copyright" clause at the top should, I think, explicitly say, "The person who identified this public domain work believes that it is free of restrictions under copyright law ..."  It would be fine to tweak the language so that it doesn't create any legally enforceable warranties.  But the key point is that the PDM takes the form "A says that work X is in the public domain."  (Does the metadata allow for multiple identifying parties?)  CC0, as Luis points out, instead takes the form, "C, the copyright owner, has placed work X in the public domain."
>
> James
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rob

Rob Styles
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Please note: the contents of this email are not intended to be legal advice nor should they be relied upon as, or represented to be legal advice.  Creative Commons cannot and does not give legal advice. You need to assess the suitability of Creative Commons tools for your particular situation, which may include obtaining appropriate legal advice from a licensed attorney.



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