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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 18:16:20 -0700

Hi James,

Thanks for your thoughtful comments.  While we're setting aside the guidelines/norms for the time being, just a couple of thoughts in line below.

On Tue, Aug 10, 2010 at 11:35 AM, James Grimmelmann <james AT grimmelmann.net> wrote:
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.

Anyone can re-publish a work that’s free of copyright restrictions (assuming no other restrictions exist on doing so) and apply their own community-relevant norms.  So it’s not immediately clear how the concern expressed – that somehow a group or community could, to the exclusion of others, establish the norms governing a public domain work – would play out in practice.  But I agree it merits discussion at the right point. 

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."

That’s a good suggestion – we’ll look for other instances where we may have made similar, inadvertent misstatements and adjust when we revisit the guidelines/norms. 

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."

Yep, we've been looking at the language for both PDM and CC0 as I indicated in response to Luis, and we may be making some tweaks to make them more parallel but still distinctive so that it's clear which is which. 

James
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--
Diane M. Peters, General Counsel
Creative Commons
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