The latest issue of the _Modern Law Review_ has an “article”:http://www3.interscience.wiley.com/cgi-bin/fulltext/120751054/HTMLSTART (by Phillip Johnson) about copyright law in the UK and US [access may depend on whether you or you firm or institution has a subscription] that suggests that it is harder for someone to give up a copyright than you might think. It would appear to have the implication that even where the creator of a work explicitly dedicates that work to the public domain, their estate might later revoke the license and seek to restrict use, demand payments etc. Alarming (but interesting) stuff. The conclusion:
bq. This article has shown that copyright owners cannot cause their copyright to cease to exist by dedicating it to the public. It is true that US authors may dedicate their US copyright to the public and in so doing cause it to cease to exist, but such a dedication will not have the same effect in relation to the equivalent UK copyright. In contrast, UK authors cannot take any steps which will cause their copyright to cease to exist. Instead, these dedications create licences, which can be withdrawn at any time. Such a withdrawal will bar new users from having access the work. But of more concern is that in England and the United States (and in Scotland, where the formalities for contract or promise are not satisfied) this will also terminate any rights existing users have by reason of the dedication. In which case, only where the conduct of copyright owners is so unconscionable that they are estopped (or barred) would the dedication have any continuing effect. This means that despite the desire of authors to dedicate their works to the public domain, the boundaries of that domain, uncertain as they already are, remain outside their control.
{ 25 comments }
Eszter 07.30.08 at 9:37 am
Interesting, thanks for posting. So regarding this part:
But of more concern is that in England and the United States (and in Scotland, where the formalities for contract or promise are not satisfied) this will also terminate any rights existing users have by reason of the dedication.
Is this supposed to mean that it can be retroactive?
Bruce Baugh 07.30.08 at 10:14 am
If it’s true, it’s an amazingly good argument for not letting copyrights last longer than the lifetime of their original holders. A crucial part of the argument for equal-treatment provisions like gay marriage has always been that it’s wrong for outsiders to override the wishes of the person at the center of the thing, even if those outsiders are relatives. That death could void out the creator’s power to dispose of their work as they wish seems equally wrong.
Chris Bertram 07.30.08 at 10:46 am
#1 If I read the article correctly, and I’m not a lawyer, the copyright holder could give existing users notice that after some reasonable period, they couldn’t continue to trade in copies of the work without permission, payment or whatever. So not retroactive, no.
Eszter 07.30.08 at 10:58 am
I see now, thanks, that’s helpful.
Matt 07.30.08 at 11:29 am
I haven’t had time to read the article and it’s not my area of law but it would surprise me if, if things really do turn on legal formalities like this suggests (in the bit about the “formalities of contract”) that one could not, by the properly executed agreement, renounce all rights to the work. If that’s really what it takes it should not be hard for people to come up with form contracts that do the trick and can then be sold in office supply stores and the like or perhaps even done via electronic certificate. That said, I’d be quite surprised if this turned out to be right in the US since, to my mind, it doesn’t seem to be how the law in general works (formalities are increasingly less important, etc.) but, it isn’t my area of law.
Chris Bertram 07.30.08 at 11:33 am
#5 Matt, the “formalities of contract” bit was Scotland-specific.
gdr 07.30.08 at 12:03 pm
The Free Software Foundation is looking remarkably foresighted in making contributors to GNU software sign explicit copyright assignments, and not just relying on the author’s disclaimer of copyright or granting of a GPL-compatible license.
Fellow Traveller 07.30.08 at 12:59 pm
You mean, in the UK it’s an inalienable right, whereas in the USA it isn’t?
John Quiggin 07.30.08 at 1:05 pm
Fellow Traveller, it’s not inalienable, since it can certainly be sold (in the case of a work for hire, sold in advance). But apparently, it can’t be given away to the public at large.
Sage Ross 07.30.08 at 2:21 pm
Does this mean that copyleft works can also have their licenses revoked? If calling your work “public domain” in the UK merely creates a license that the creator or others can revoke, despite the implicit nature of the license as perpetual, what’s the difference between that and revoking a CC-sharealike license? Does the explicit nature of the latter mean that it will hold up against this ?
I guess I should RTFA.
Sage Ross 07.30.08 at 2:41 pm
In answer to my own question, it seems that because CC licenses are explicitly perpetual, this wouldn’t affect use and downstream reuse of such licenses.
From the article, it seems that UK public domain is like a free license with totally unspecified terms. So like with a CC license, an author can stop offering their work under than license at any time. But unlike a CC license, there is no clear statement of the rights of anyone already using the license to continue to do so and to distribute it under the same license.
lemuel pitkin 07.30.08 at 3:10 pm
access may depend on whether you or you firm or institution has a subscription
As someone who cannot read the linked article (without paying $29.95 for access for 24 hours), I find it a little ironic, and not in a pleasant way, to be excluded from a discussion of copyright law by … copyright law. I’m not sure academics realize how different their information regime is from the rest of ours, but it can give these discussions an air of unreality sometimes. Isn’t there an ethical obligation to conduct discussions like these in a way that doesn’t explicitly limit participation to the IP-privileged?
(And yes, among other things that means writers at places like CT should try to avoid linking to stuff their non-academic readers won’t be allowed to access.)
stuart 07.30.08 at 4:06 pm
$30 to access one article for 24 hours…is it some sort of legal requirement they make these publicly available, but then they set the price to avoid the risk anyone actually doing so?
Maynard Handley 07.30.08 at 4:41 pm
“That death could void out the creator’s power to dispose of their work as they wish seems equally wrong.”
This is no different from organs, isn’t it? Kieran, I assume, can give us the details, but my understanding was that in all the anglo countries, even if I explicitly consent to donation via a donor card, if I am unconscious and family say no, well my wishes get overridden.
Amazing the details that lurk in some legal relationships.
lemuel pitkin 07.30.08 at 5:25 pm
Actually, in most US states a family cannot override an individual’s decision to donate organs. Here in New York, we just recently eliminated families’ veto on organ donations:
MrTimbo 07.30.08 at 7:52 pm
They’re aware. Especially the scientists. Read Peter Suber on Open Access/
Fellow Traveller 07.30.08 at 9:45 pm
Funnily, the UK government has proposed effective ‘nationalization’ of the bodily organs of the entire population by opting them into organ donation without their prior consent (with, of course, the saving grace of an opt out provided you take the trouble to register your objection to the government before you get killed in an accident which the government knows most people will not bother to do).
If this goes ahead, we will see an author’s work given more protection than his vital organic parts (precious bodily fluids?). The public (or rather the National Health Service or even the international donor organs market) will get the right to make use of your body before they get your creative work.
derekm 07.30.08 at 10:18 pm
Under English law, could I avoid the risk of my heirs revoking the public domain assignment of my work by explicitly granting all my copyright rights to a third party set up to hold such copyrights?
In New Zealand there is a special perpetual trust (the Queen Elizabeth II Trust) set to allow land-owners to apply perpetual covenants to land – perhaps what is needed is an equivalent for copyrights. IANAL, but I don’t see that it would even need to have to be a special perpetual trust – it could possibly be a company.
Matthew Kuzma 07.31.08 at 3:18 am
This is just disgusting. Copyright laws are so far from reasonable they verge on farce.
derrida derider 07.31.08 at 3:54 am
While it would be better if the law was changed, derekm has the right interim solution. Seems like a good thing for a UK version of the CCF to set up.
Dave 07.31.08 at 8:37 am
Leave your copyright to the National Trust…? Not really their job, and I doubt they’d be interested. But then, we are looking for a copyright holder who’s uninterested in enforcement, aren’t we…??
chris y 07.31.08 at 4:21 pm
You could, I imagine, set up a trust to ensure the free availability of your work, and include some impossibly difficult condition for changing the terms of it. But it would be an expensive and arduous way of doing something that ought to be straightforward.
Ginger Yellow 07.31.08 at 4:55 pm
“If this goes ahead, we will see an author’s work given more protection than his vital organic parts (precious bodily fluids?). ”
Doesn’t seem that crazy to me, especially compared to the current system in the UK where you have effectively no control over your organs. What are you (or even your heirs) going to do with your organs after you die?
littlehorn 07.31.08 at 7:09 pm
Can someone explain to me how NIN’s last album fits into all this ? They gave it away for free. They seem to have come up with some sort of legal status for that. Am I completely offhand ?
Lewis Hyde 07.31.08 at 7:49 pm
Two places where work on this issue is going on:
At Creative Commons — thier CC0 rights waiver protocol language:
http://wiki.creativecommons.org/CC0
An October workshop in Amsterdam will address technical and legal aspects of public domain marking in Europe:
http://www.communia-project.eu/node/109
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