Quote of the Week: June 17

Lawrence Lessig, speaking about the scorched-earth inefficiencies of modern copyright in Free Culture:
The list could go on, but the obvious point is this: Physical property and the intangible property we call copyright are different. Jefferson pointed to one difference. But the really crucial difference that I’ve been trying to get people to see is that physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government — which is saying a lot. And rather than continue sophomoric debates about who is “stealing” what, it’s about time that policymakers — and industry leaders — took responsibility for the inefficiency that copyright is.
I've been a fan of Lessig for quite some time, and I've usually agreed with him in principle, but some recent issues with image rights on Citizendium has really driven home this point. There's an incredible amount of intellectual wealth rotting away, lonely and desolate because its copyright status can't be confirmed or its owner can't be found, or because the copyright system is just too thorny for people and organizations to navigate. Really great, cool things aren't happening not because of any economic reason but solely because our copyright system sucks.

One of the most recent copyright issues to come up on Citizendium is of museums and stock image companies trying to re-copyright old public domain images in various ways--some argue that they own the copyright on their 'artfully' scanned images of public domain works; others try to lock down reuse via contracts; still others embed their own copyrighted watermarks in their scans of public domain works. Any readers have pointers on what the current legal precedents on these issues are?


mike said...

the very last finding in the most recent issue of Harpers Magazine is that fruit flies have free will...

Mike said...

Ha, yes. Someone had better tell Taliaferro that "free will" means "acts in a way such as to conform to a certain mathematical distribution". :)

With apologies to Schopenhauer, "a fruit fly can very well do what he wants, but cannot will what he wants."

mike said...

Can a person will what she wants any more than a fruit fly?

Mike said...

... or any less, if she really concentrates on it?

David Gerard said...

The (UK) National Portrait Gallery used to not-quite-claim copyright on various images on Wikipedia from its gallery. Jimbo eventually said "sue and be damned" and we've heard not a squeak from them since.

Case law is odd. In the US, such works are almost certainly still public domain (Bridgeman Art Library v. Corel Corp). In the UK, there's one precedent and it's from 1850; no-one really wants to open the can of worms.

Mike said...

That's interesting about Jimbo's decision. I sort of wish our hands were free to do so as well.

Generally speaking, It seems that the winds of precedent are blowing against museums, etc putting restrictions on public domain works... but orgs with large public domain collections (esp. stock photography collections) are throwing a lot of arguments up and seeing what 'sticks'. Corbis, particularly, is claiming copyright on the watermark they embed within their images. From our vantage point as an organization with few resources it makes it rather messy to accept such uploads...

Stephen Ewen said...

I got a better idea than to tell The UK National Library to "sue or be damned".

How about we say, you know, it may be shaky, may be not, but the library says all their images are copyrighted, see http://www.npg.org.uk/live/copyright.asp

So, how about we just be respectable about all this?

First, how about we first give the Library no cause to worry about the contexts of their images; that we give assurance that they will be contained in articles that are not subject to change by the minute, not subject vandalism or the control cranks and idealogues; that the images will be displayed alongside text that is responsible that has been approved as accurate by real-named subject experts.

Second, how about we give the Library some other basic assurances; that when their images are hosted at Citizendium, their documentation requests will be followed; that we'll tag their material in a way they find acceptable; that we'll place small attribution bylines in all image boxes, as they request.

Third, how about we then do another respectable thing. How about we just ask them for permission to use their images.

And fourth, since we have been so respectful thus far, and since we have a Policy on Media from Special Content Providers that we enforce, how about we just take the next natural step and negotiate a Memorandum of Understanding. Given our assurances to the Library, we get to use any digitized image in their collection. Call it block permission by agreement.

Fifth, how about we realize that this is what respectable organizations do, and that in return it earns you respect, and that respect like that is a priceless commodity for a publication that aspires to be credible and, well, worthy of respect.

Sixth, how about we realize that reputations spread; that reputation can be the up or down factor in funding, the up or down factor in garnering high quality human resources, and for reaching the level of worldwide usability and credibility to which Citizendium as a professional organizaton aspires.

Mike said...

Hi Steve,

Thanks for the post. I'm not sure whether your comment was directed more at David's comment or mine. I'll be happy to respond if it's the latter.

Stephen Ewen said...

I think I was probably responding to Jimbo. :D

And just generally.

But feel free to jump in!

Mike said...

Yeah. :) Well, I think you're absolutely right about treating galleries and such like partners and with respect.

My specific angle is to take a wait-and-see approach to how the winds of legal precedent blow. I think eventually that should be the primary deciding factor in our policy (per my comment over email).

Definitely a topic worth revisiting as the legal situation and/or our situation changes.

Stephen Ewen said...

As if any of us need our heads to spin more, if this from Christine L. Sundt doesn't do it nothing will:

"An image of art -- a slide of Leonardo da Vinci's Mona Lisa, for example -- is an annoying bundle of problems when trying to sort out *what it is* and *who owns it*. The layers of ownership and claims of control over the use of images could make one weary.

"The work is in a museum (in this example, the Louvre, in Paris) open to the public; although the artwork is in the public domain (Leonardo da Vinci died in the 16th century), the museum claims property rights; the museum sells photographic reproductions of the work, but also allows anyone willing to pay a fee the right to make a photographic reproduction of the work; a scholar incorporates the image into her work (a scholarly book for which she receives no compensation) and uses her own photograph to illustrate the painting; the scholar's work is published by a commercial publishing house; the scholar in negotiating the publication, signs away her copyright to the publication; finally, the publisher sells its interest to an electronic publisher who mounts the work on the Internet, making it available to users for a fee. Enter the college professor who wants to use the image in the scholars' work to illustrate his course on Renaissance portraiture. Who holds the rights to our Mona Lisa? Who gets the royalty fee for allowing the use of Mona Lisa's image? In purchasing the copyright to the publication, does the publisher also own the copyright to the images if the contract does not specify images? Where does the museum fit into this equation?"

The whole article is a head-spinner like that.