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  • From: Diane Peters <diane AT creativecommons.org>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Public Domain Mark - Invitation to Comment
  • Date: Thu, 12 Aug 2010 17:48:53 -0700



On Mon, Aug 9, 2010 at 7:26 PM, Douglas Campbell <Douglas.Campbell AT natlib.govt.nz> wrote:

 
1. Is this Public Domain Mark (PDM) to replace the existing Public Domain Certification (PDC)?:
http://creativecommons.org/licenses/publicdomain/


The PDDC will be deprecated as of the publication date for PDM.  See our current CC0 FAQ (which anticipates this and will be updated to more fully explain that upon launch).  This will be mentioned in the upcoming PDM FAQ, as well.  As of that point, PDDC will carry a deprecation notice, though just as with all of our licenses and legal tools, we will maintain a stable URI of the code for adopters.

 
2. I like that the PDM 0.7 states "no known current copyright restrictions" - this appears to create a standard mark that could replace the various ad hoc statements being used, eg. in Flickr Commons.

Glad you like it.  We surveyed many different public domain statements, and after discussions with adopters came to the conclusion that this statement is comfortably in line with the kinds of statements that institutions are already making about public domain works they are publishing on the Flickr Commons and elsewhere. 


3. Ideally the PDM page would be re-written from the consumer's point of view, like existing CC licence pages that say "you are free... under the following conditions... with the understanding that...".  The current version 0.7 is written more from the owner's point of view, which relies on the consumer interpreting it correctly.

Unlike our licenses and CC0, the deed for PDM will serve two purposes:  providing details about what has been marked (including ways to find out more information about the work through links provided by the person marking it as free of copyright); and helping the public understand what the mark means.  We've tried to strike a fair balance but always happy to hear about more ways we can make it better yet.  


On the user side of that equation, for example, we have included a statement of Public Domain Freedoms (click on the info (i) next to the mark statement) that makes clear what a user of a PD work is free to do with the work.  Additionally, the “Learn More” buttons will link to sources of additional information that may be useful.  And finally, under Other Information” there is information specifically tailored for users of the work, including possible other restrictions (privacy and publicity, trademark and patent, etc.).  


One important note here, is that we plan to add to this list a statement alerting users that the work identified may not be in the public domain in all jurisdictions.  We hope that in future versions of the mark that specific information about where a work is free or not of copyright restrictions can be included in the metadata.  For now, we want to highlight for users that possibility.

 

For example, "you should not imply endorsement" - does that mean sometimes it's OK??  ...in which cases??  It might be better to choose one choice and state it, eg. "under the following condition... that you do not imply endorsement..." and "with the understanding that... this mark may be revoked if a previously unknown but legitimate copyright owner is revealed".

Thanks for asking about this – it’s an important question because it touches on other comments a few others have made.  Understanding what PDM is intended to do and is not intended to do is key to answering it fully.  At its crux, the public domain mark itself is designed solely to serve as a label -- a mark – a tag.  PSM is not designed to be legally operative.  This means that PDM does not give or limit permission, it does not affect copyright status, it does not impose contractual restrictions, it does not affect rights.  Period.  It is a baseline mark that someone can apply to work to make the factual statement that “this work is free of copyright restrictions.” 

 

Given this design principle, we have phrased it normatively.  Why say anything at all then?  We could have gone that route, and might reconsider if we receive more feedback on this point.  Our current thinking, however, is that we want to help users of works associated with our tools by alerting them to other rights and laws that may come into play. This should resonate with your point above about ensuring the deed is helpful to consumers.  in some jurisdictions, wrongfully implying that an author, publisher of a work or someone else altogether endorses what you are doing may have legal consequences.  We also think not implying endorsement is important even if it isn’t legally actionable.  We may end up saying this more forcefully (or not at all depending on feedback and evaluation), but that is the intention behind that statement, just as with our notice that there may be patent or trademark rights, privacy or publicity rights that exist beyond copyright.

 

4. I think non-binding use guidelines are futile.  Either a work is fair game (to be used any way the consumer desires) or it's not - it's too confusing for consumers.  I would prefer we had two marks - one with binding use guidelines and one without.

In fact I would be reluctant to release works that have been donated in good faith to the National Library under only non-binding use guidelines.  However, I possibly am misunderstanding what you mean by non-binding - I think you mean 'not legally enforceable'?

Correct, when we said “non binding” we meant "not legally enforceable."    

The potential for 'dis-respectful' use of works is the main issue holding us (and many other cultural heritage collecting institutions) back - the content we release under no-known-copyright in Flickr Commons is all carefully hand-selected as 'safe' - this is very time-consuming.

We, too, have heard this concern from other cultural institutions, though not all.  Admittedly, there is no rule per se that requires an institution or person to make the public domain works over which they have control publicly available.  And where genuine concern exists about cultural or other sensitivities, the decision not to publish can make sense.

 

5. Related to this, I have been meaning to discuss with CC the possibility of adding a couple of new 'flavours' to the CC mix (alongside BY, NC, SA, etc.)

Let's take this one off list.  We've had others approach us about niche licenses and for a variety of reasons we're not inclined to add new flavors.  But let's discuss.

5a. NE (No Endorsement) - ie. use is permitted provided the work is respected, along the lines of the BBC's Creative Archive Licence pilot - http://www.bbc.co.uk/creativearchive/  I think this would mean codifying some of your PD norms and use guidelines - but I would want to be able to apply these to non-PD works too.  These may not be enforceable under copyright law, but possibly would under property law??

5b. IR and IU (Indigenous rights Restrictions/Unrestricted) - the work is sensitive to indigenous peoples and may be used only within certain (stated) restrictions in context of their culture (or, this is not sensitive in the culture so may be freely used).

I think we would be able to release a LOT more content into the CC under a BY-NC-SA-NE-IU (or -IR) licence. :)

My suggestions for new CC flavours was going to be the follow-up post to these two (where I tried to look at the rights issues facing cultural heritage collecting institutions):
http://librarytechnz.natlib.govt.nz/2009/12/look-at-rights-in-cultural-heritage.html
http://librarytechnz.natlib.govt.nz/2009/12/what-is-inappropriate-re-use.html

Thanx,
Douglas Campbell
Digital Services Manager
National Library of New Zealand - Te Puna Matauranga o Aotearoa


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Diane M. Peters, General Counsel
Creative Commons
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