User:Sevgi/Licensing Workshop

Interpretive Licensing Workshop

Open licenses

https://www.clarabougon.ovh/pdfs/2024_05_22_poster_licence_en_A3.pdf

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The law is composed of different things: you have rules that are not immutable. They are, at some point, decided on, and then you can change them by way of a new legislative act. For instance, being able to vote at the age of 18 is a rule. So, it is 18, not 19, not 16. So you’d have to change that if you wanted that. But most of the law is not constituted by rules like that. It’s constituted by processes of deciding cases. For instance, the norm of liability says that anyone who causes damage to someone is responsible and has to compensate for the damage. This rule seems very straightforward, but it is just a standard statement. You have a lot of different ways to interpret it: what does it mean to cause damage? You have all these elements that are part of the legal process, where the courts do that work of interpreting. This case law, as it’s called, can change and it does change all the time. This is also a process of changing the law. And then you have all the elements that are not determined, you have new issues popping up. For example, can a work that is created by artificial intelligence be protected by copyright? That is not accounted for in law anywhere in the world, it’s a new question.

With a few norms and a few rules and standards and principles of copyright, we can deal with that question, but we can have different opinions, and then we can say, oh, maybe at the moment it will not be protected by copyright, and maybe we need to have new legislation to decide about that case. The law is in constant change. How do we change copyright? Then we have a lot of things that we had earlier, that the law does not decide on but leaves for the parties or the persons to decide for themselves. A contract just states what the rules are that have to be followed, but the law doesn’t say that, OK, if you write a book and you publish it, the publisher will have to pay you that amount of money. In some countries, it says the authors will transfer the copyright to the publisher and need to be paid to receive a proportionate and fair remuneration. That’s just a standard, but it doesn’t say it has to be 25% or 5%. You have the standard and then the parties decide. How do we change copyright law? First, we experiment with it. And this is what has been done with Open Access and copyleft licences for the last 20 years. I think it’s interesting to recognise that Open Access licences have just been experimenting with the law that recognises that authors enjoy copyright and the power to prohibit or authorise the use of their works.

Copyleft movements have experimented with the authorisation part of copyright in a new way; they have created a new norm, and a new law. This is the first way to change the law. The second is to plead for a legislative change. And then the other is to develop new legal arguments that can be welcomed by the courts, because there is still some uncertainty as to how to interpret the legal standard, or there is a new question for which there is no legal answer. This is what the courts and what we as copyright lawyers are doing all the time. We argue when to use the theories of copyrights or what copyright should be or is about and play with the rules and with what the rules are not ruling. What are the holes in copyright that have to be filled, or sometimes not, but have to maybe be left unexplored to allow for experimentation? There are a lot of ways in which to change copyright law. It is not immutable, and it isn’t complete. Not everything a creator does is regulated by law. A lot of things are still in the shadow of the law in a way.

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The question of enforceability was asked early on of Creative Commons licences. For many years, a lot of people said, it will not be enforceable. And then here and there were decisions that said, yes, it’s enforceable. But this was not even the question. It’s enforceable if it is recognised. If it is a legal document that people agree on, it will be enforceable. But again, copyright sometimes is not enforceable. Yes, it is a property right, it is enforceable, but in practice, and particularly in small cases with not a lot of money, they will have a lot of difficulty in finding the pirates, finding the person who has made the copy and who has disappeared or has done it anonymously. It’s not only about the type of rights that you put in the licence or whether you just apply the exclusive copyright. If you don’t give any licence, of course, any copy without an authorisation is a pirate copy. But at the same time, it doesn’t allow for more enforcement because the enforcement is also something of practical reality; you’ll have to find the pirate. Saying that this document will be less enforceable than others, I don’t think is the point. But what I found completely fascinating with CC4r, and I think that was genius, is that the Creative Commons is only applied once the “product” is done—and the use of the term “product” is not innocent here. Once the work is done, only then does the licence determine what you can do with it. CC4r also takes into account a step before, as it first talks about how we do this work together, and then we’ll decide what can be done. It’s more inclusive in the sense that it will consider the collaborative conditions, the collaboration between people. So, maybe yes, if you are a publisher, you are more interested in what I should do with your product, the book. The publisher is probably not as involved in the process of producing that book. Maybe the interest is more in the outcome, for which the Creative Commons seems a most obvious choice.

But I think that, again, those are legal experiments that are interesting, and they will not solve all the issues. A contract has never solved all the issues. For instance, the music industry has fought for years against pirates and peer-to-peer sharing of music, and they weren’t always successful. They have all the money in the world, and they have the exclusive copyright, and they couldn’t really wipe out all the pirates’ websites. There has been a constant fight between the copyright holders and the pirates. Of course, you will never catch all the pirates in the world. So this is a risk. The law is not something that happens automatically and will self-enforce. Enforcement is a process that costs money, that needs courts, that needs defendants who are identifiable, who are reasonable defendants.

I can see why people are less convinced by Creative Commons licences because they have not been experimented with enough. But they will have a life of their own, and then at some point, people will agree to them. It’s a completely new form of licence, it’s not a traditional, typical licence. But I think what is important is that at least it binds people who agree to it, and so it gives some frame to a community of people. And of course, it’s left open to possible pirates, but those will always be outside of the legal force of the law, of the legal force of Creative Commons.

This is the ultimate frontier that you will never reach. We’ve seen this with Eva’s workshop on the Piracy Project at LaCambre in Brussels, the case of a publisher who made a business out of printing Wikipedia articles and made them look like scientific books, selling them for a lot of money. Legally speaking, those people even comply with the Creative Commons licence that governs Wikipedia pages, but it is a completely unethical thing. And yes, those people will never be reachable or will never be accountable before courts. Maybe I’m defeatist here, but I say, what’s the point? Is it not better to just try to reinvent the practice by saying these are the rules that will govern a practice rather than just constantly think of the risk of someone stealing your work?

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https://europa.eu/youreurope/business/running-business/intellectual-property/copyright/index_en.htm

https://business.gov.nl/products-services-and-innovation/protecting-your-product-or-idea/ip-rights/

https://copim.pubpub.org/pub/combinatorial-books-documentation-copyright-licences-post6/release/1'