permaculture

[Pacific Edge Permaculture <pacedge@magna.com.au>]

Thanks, Toby, for your contribution to this issue. I have placed some
commentary within your text, not to advocate anything about use-rights but
to attempt, like you, to clarify them.

Yes, there certainly appears to be a lot of confusion over who can use the
word 'permaculture' and the permaculture logo. I know that other respondents
in this discussion have clarified the legal situation, however I guess its
persistence attests to continuing concern over it.

For instance, some respondents believe that Mollison's work should be in the
public domain, from what they write, freely available for all to use. While
the idea of having some information in the public domain might have some
merit, it disregards the work of the people who produce it.

For instance, I know of cases where aspiring teachers have asked established
permaculture teachers for their course notes so they can use them in
teaching, disregarding the years of work which have gone into compiling and
producing those notes. When the answer is 'no' - as it usually is - the
would-be teachers go off in a huff, disappointed.

I am aware that permaculture teachers photocopy sections of Mollison's books
for distribution to students, however over a certain amount this would
appear to be illegal.

Teachers appear, however, to be entitled to use the word 'permaculture'
freely and to produce their own training manuals and books incorporating
Mollison's ideas but not his actual text, graphic materials or format for
presenting the information.

As for offering courses as 'permaculture', I am aware that the notion exists
that this is permissible providing the person offering the course has
completed a permaculture design certificate course offered by a holder of a
permaculture design certificate. Only certificate holders are entitled to
use the word 'permaculture' in a professional sense.

I do not know the legality of this notion if the word 'permaculture' has not
been trade-marked or patented (in that case, teachers could be licenced) as
ideas - such as those making up the permaculture body of knowledge - are not
protected under Australian copyright legislation.

Copyright of any permacultue course curriculum, however, would remain with
its creators unless signed over to another owner. Thus, the model curriculum
published by the Permaculture Institute in Australia could not be reproduced
by teachers unless permission was given. Teaching the curriculum as
described in this document under a name other than 'permaculture' could,
possibly, be legally actionable under legislation dealing with
misrepresenation and 'passing off' rather than copyright.

As for free use of the snake/ oval logo of permaculture, that appears to be
illegal without permission. This puts all those permaculture
community-based-organisations who use the logo, websites on which it appears
other than for purposes of criticism or review and some teachers who have
made use of it without permission in contravention of the laws on copyright.

I am aware that information about the use of the word 'permaculture' is
passed on through permaculture design courses by teachers and, going by the
discussion around the issue of use-rights, teachers would do well to
appraise themselves of the legal situation. At times, advice on the
use-rights to 'permaculture' may be incorrect.

Bill Mollison has made his position clear via others in this discussion and
in the Permaculture International Journal.


on 25/7/00 1:34 AM, Toby  Hemenway at hemenway@jeffnet.org wrote:

> This thread shows how much confusion there is over the various permaculture
> copyrights. Maybe we can clear some of this up.
> 
> So far, we know from Scott's post that the logo is trademarked, and it's
> understood that the Design Manual, like any book, is copyrighted. Thus
> neither can be reproduced in all or part without permission (outside of
> what's called "fair use" for reviewing and limited educational use).

According to the Australian Copyright Council, these exemption to the
infringement of copyright requiring no permission to use from the owner of
the copyright include:

1. criticism or review (provided the use is 'fair' and that the work and its
author are identified)

2. the reporting of news by a newspaper, magazine or similar periodical and,
arguably, newsletters (providing the work and author are acknowledged).

> Two other points are less clear (and I raise this not to exploit the lack of
> clarity, but to encourage us to tighten it up). One is Mollison's assertion
> that the word "permaculture" is copyrighted and thus can only be used by
> permission. I'm not a lawyer, so I could be wrong here, though I've spoken
> to my lawyer-brother, to my literary agent, and to my publisher. They tell
> me that you can't copyright a single word, even one you've coined. You can
> trademark it, a different process that requires registration, unlike
> copyright (which applies automatically when a work is created).

Yes, you cannot copyright a name. You can protect it through trade-marking.

This is my understanding of the situation under Australian copyright
legislation.

According to the Australian Copyright Council (www.copyright.org.au),
copyright legislation covers:

- written material such as stories, reports etc

- artistic material such as drawings, photographs etc.

The Australian Copyright Council states that copyright does not generally
cover:

- names or titles-such as the name of a newsletter; they advise that
plantiffs seek legal advice on trade marks and trade practices legislation
where they feel the use of a name has become an issue over what they regard
as their 'territory'; regarding a book title, they advise that 'you may be
able to prevent another person from using that title in a way which would
mislead or deceive consumers into confusing your book with that person's
book under state and federal consumer protection legislation (such as the
Trade Practices Act) and under the law of 'passing off'

- ideas or information: copyright legislation protects (quoting from the
Council) 'the way in which an idea or information is expressed. For example,
copyright does not protect the idea of writing an article about current
industry trends, but does protect the article itself. Nonetheless, if
someone uses skill and effort to select and arrange information, the
resulting compilation may be protected'

- some quotations which may be too small to be 'literary works'- such as
slogans, sayings.

In regard to permaculture, the above information would suggest that:

- the word 'permaculture' is not copyright-protected and may be used by
anyone, regardless of whether they hold a permaculture design certificate;
if the word is trade-mark protected, then permission to use the word is a
legal requirement

- people writing books, manuals, website content etc on permaculture cannot
use substantial sections of Bill's books without permission but can make use
of excerpts for purposes of review and criticism

- as an original work, the snake/oval logo widely used to represent
permaculture cannot be reproduced or used without permission; it remains the
copyright of its creator (Andrew Jeeves) unless Andrew has signed it over to
the Permaculture Institute or unless he produced the logo as an employee of
the Institute; that applies to all graphics and illustrations in the
Permaculture Designer's Manual on the cover of which the logo appears (and
to all Mollison's books); to quote from the Aust Copyright Council: 'In a
number of cases, courts have held relatively simple logos to be 'artisitc
works' for the purposes of copyright.Copyright in a logo is owned in its
creator. This is the person who designs and draws the logo... the Trade
Marks Act 1955 provides a formal system of registration for signs such as
names, logos and other distinctive aspects of a product of packaging. .. A
person may be able to take legal action against another person who 'cashes
in' on the first person's reputation in the market - for example, by using a
name of logo connected with the product so as to misresresent or suggest an
endorsement... a person may have a legal claim against another person who
misappropriates an 'image' or 'get up' established in a market by the first
trader...'.

- people teaching permaculture courses cannot distribute substantial parts
of Bill's work or of the work of the illustrator's of Bill's books as
photocopies or online information without permission; they can, of course,
distribute entire copies of Bill's or other's books to their students;
likewise, they would not be able to distribute printouts of webpages without
permission; where the course is run through an educational institution, that
institution would likely have legal clearance for reproducing more
substantial parts of a publication as part of an agreement on copyright.

To quote: 'You may reproduce a work, or part of a work, for the purposes of
research or study without the copyright owner's permission. For example, you
may reproduce a quote or extract in an essay or thesis written as part of a
course of study. The Copyright Act provides that it is fair to copy up to
10% or one chapter of a literary, dramatic or musical work published in an
edition of more then ten pages and up to one article from a periodical, or
more than one if they relate to the same subject matter. Copying more than
this amount may be permissible in some circumstances'.

Further on copyright of materials for training manuals:

- the Act protects text, tables and compilations, graphic works including
maps, drawings, plans, photographs, charts

- the expression of ideas-but not the ideas, information, concepts or styles
themselves-are protected; methods and techniques are not protected by
copyright

- to quote the Copyright Council: 'If the reproduction is the result of a
substantial reliance on a copyright owner's work, it is likely to infringe
copyright'.

This last item means that teachers cannot produce a manual which relies
substantially on Bill's books. They must devise their own material but can
call on Bill's for review or criticism.

In copyright, it's the expression of an idea that counts. Quoting again from
the Aust Copyright Council: 'You do not infringe copyright if if you write
something new based on information or ideas you have learned from the work
of others, provided the expression of the ideas and information is yours. In
some cases, you may infringe copyright if you closely paraphrase another
person's work, closely following the structure of the other person's work or
the detailed order in which the information of ideas were expressed. This is
because the structure and order in which the information or ideas were set
out are part of the other person's expression of that information or ideas,
as well as the words used. Similarly, merely making changes to a work will
not avoid infringing copyright if the altered version includes an important
part of the work'. 

>Though trademark usually applies to manufactured goods (e.g. Coca-Cola), it 
>is
>  also used for intangible services like Dianetics and Rolfing. Trademark 
> would
> accomplish exactly what Mollison wants to do with his assertion of 
> copyright:
> restrict who can use the term commercially, and insure that a certain 
> standard
> is maintained. Users of the trademark could then be licensed in some way.
> (Whether "permaculture" can be trademarked is less certain, since coined 
> words
> that become used generically can't be trademarked. Aspirin, escalator, and
> thermos are famous examples of products that lost their trademark.
> Permaculture already may be too generic to be trademarked.)

> This means that Bill's asserting restrictions over the use of a word may be
> meaningless. That needs fixing.

You are probably right Toby. It's been over 20 years since the word
'permaculture' was unleashed on the world. Since then, it's been used in the
titles of books and video productions, in courses and websites. It has, as
you suggest, probably gone past the stage of trade marking.

My reading is that, if the above information is correct and if there are no
other legal considerations, then permaculture can be used by almost anyone.
Am I reading this correctly?

> The other point of confusion is the curriculum, which Bill says is
> copyrighted. Copyright applies to specific works by an author. A book that
> outlines the curriculum (like the Design Manual or course handbook) can be
> copyrighted. But a collection of ideas or a group of subjects cannot be
> copyrighted

See above on ideas - that ideas cannot be protected by copyright, only a
particular expression of them.

>Ernst Haeckel coined the word "ecology" but could not legally
> control the teaching of ecology. Someone could teach the subjects covered in
> the DM in their own style and call the course anything they want;

Providing it is not actionable under misrepresentation or under trade
practices legislation (the Trade Practices Act in Australia).

> they just can't plagiarize by copying material from the DM and printing it 
> in
> a curriculum. 

> This also works the other way: there is some leeway in what one
> could cover in a course and still call it permaculture.

This is necessary if permaculture is to be adapted to different
circumstances such as climate/ geography, society/ culture.

Already, teachers adapt what is in the curriculum to suit their
circumstances, spending less time on material less relevant to their
environment and circumstances and adding new material to adapt the course to
the needs of their students. For instance, we adapt the curriculum to the
urban situation as our students are city dwellers, the great number of whom
will never build a farm dam, cultivate a field or plant an agroforest.
Things like neighbourhoods, the design of energy efficient buildings, how to
buy organic food, life-cycle analysis and economics becomes more important.
Other teachers focus on a more horticultural course.

The ability to adapt the curriculum is an indication of its relevance and
flexibility.

> Also, legally I could paraphrase the Design Manual in my own words and be
> granted a copyright on that work (that's what any textbook author does), as
> long as I don't plagiarize Bill's physical work itself.

Yes - see above.
> 
> Again, I'm not suggesting that any of that, though legal, is ethical, or
> that we disregard Bill's wishes--I intend to follow them--but legally, right
> now he may have few enforceable rights over the teaching of permaculture and
> the use of the word. I wish I could assume that everyone is ethical and will
> adhere to Bill's high standards without any encouragement or legal coercion,
> but that's not the case. So some sort of protection is necessary, and Bill
> and the various Institutes should continue to pursue it.
> 
> Not being a lawyer I may misunderstand some of these issues, but that's my
> interpretation of them.

Likewise.
> 
> 
> Toby  
> 
...Russ Grayson

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