Beyond Fair Use

Back in the days of Homer and Virgil there wasn't anything like copyright. The reason is that few people knew how to read and write. If someone could copy a work, they deserved a copy. It wasn't until 1710, when the British parliament passed the statute of Anne, that the world got its first copyright law (Litman 15). The idea was that giving authors control over their works would give them incentive to make works.

Most people know that copyright law is the law that makes it illegal to burn CDs and give them away, or to go into a movie theater to record the movie and sell tapes of it, but few people know much more than that. Even fewer people know how to use copyright to share their works, and a quick look at some of the stuff written by amateur writers—such as the things found at gamefaqs.com—shows that many think that they need to assert their ownership so that people don't 'steal' their work. Artists—including writers, musicians, and any other people that make expressive works—don't need to hoard their rights to get protection under copyright law, and in many cases it is a greater benefit to allow others to use their works beyond what fair use allows.

Copyright Basics

What is copyright?

Copyright is a set of laws in place to give artists a certain amount of control over their works. People have several ways to express their ideas, thoughts, and whatever else there is to express, for example, speeches, music, essays, and dances. Copyright protects expressions like these. Copyright doesn't cover anything else, including names, logos, or ideas themselves.

In addition, copyright is effective in the US once a work is "created in fixed form," according to Circular #1 (US Copyright Office). Therefore, copyright only covers tangible expressions. If a person just says something, there's no copyright protection, but if someone writes it down or tape records it, then it is protected. A person doesn't need to register a work to get copyright protection. The registration is just added protection as proof of who holds the copyright.

The Rights of Copyright

According to Circular #1 only a copyright owner can exercise these rights:

And some other, unspecified, rights. In addition, a holder can sell or license these rights in restricted ways. The 2005 edition of the Writer's Market lists, among others:

Essentially, a copyright holder can sell his or her rights in a certain context. If a person wrote a novel, a movie company has no interest in owning the rights to publish an excerpt in a newspaper (serial rights), the company wants the dramatic rights. A magazine would want serial rights, since it's a serial publication.

Fair Use

The US copyright code has limitations on the exclusive use copyright works. One section of the code, for example, allows people to play a broadcast transmission in a restaraunt or bar, as long as there is no charge associated with access to the broadcast. Fair use is the general section of rights that everyone may exercise. Fair use rights include an essayist citing an article or an English professor passing out a small number of photocopies of a poem in his class. Unfortunately, the line between fair use and infringement is vague. In Fair Use, Free Use, and Use by Permission: How to Handle Copyrights in All Media, Lee Wilson gives several examples of things that seem harmless, but aren't fair use. There are only a few cases that are defined as fair use; everything else is up to interpretation of a few guidelines. Often, the determination of what is fair use can come down to a court descision.

Licensing and Selling Rights

When a copyright holder wishes to allow others to use his or her work in ways not covered by fair use, the copyright holder either licenses or sells the rights. For example, a poet who submits a poem to a poetry magazine will often sell the first serial rights (the exclusive right to be the first magazine or newspaper to publish the poem). An author of a book will often sell the exclusive commercial printing rights to a publisher.

Other times, a copyright holder can grant a license to his work. A license is essentially permission to use a work. A copyright holder can grant someone an exclusive license, which means that the copyright holder promises not to grant a license to someone else for the same rights or context. The copyright holder can also grant a non exclusive license, which simply doesn't have this promise. Short story authors and poets sell reprint rights as non-exclusive rights, and an End User License Agreement (EULA) for computer software is also usually non-exclusive.

Those Who Reject Hoarding

There are some who reject the idea that they must hoard the rights to their works. Most of these movements can trace some inspiration to Richard Stallman.

Free Software and Open-Source Software

In the 1970's Richard Stallman was a computer geek at MIT's Artificial Intelligence Laboratory (AI Lab). According to a speech he gave at New York University in 2001, people shared their software freely. The software didn't even have copyright notices. If anyone requested a copy of the source code—the human readable version that programmers use to create new versions of the software—they were given access to the system to copy the source code to a tape.

Printer Jam

Then one day, Xerox gave the AI Lab a laser printer, according to Stallman, the first one outside of Xerox. Unfortunately the software they used to control the printer didn't come with source code, and the printer would jam frequently. Stallman came up with an idea to fix the issue—rewrite the software so that it informed everyone with a print job that the printer is jammed. Since he didn't have the source code, however, he couldn't make the necessary changes. He later found out that a colleague had a copy of the source code, but that colleague signed a non-disclosure agreement. Stallman saw this as unethical. This laid the foundation for his later project, the GNU operating system.

Richard Stallman would later quit his job at the MIT AI Lab to begin working on the GNU operating system. His goal was to create a complete working system that was entirely free software, that is, software that had four rights that Stallman considered essential for computer use. These rights were: the right to run the software, the right to modify the software, the right to distribute the software, and finally the right to distribute altered versions of the software.

Copyleft

In order to protect his system from proprietary software vendors, Stallman developed a concept he called copyleft. The idea is basically this: Anyone is free to exercise these freedoms, provided that he or she doesn't stop others from exercising the same freedoms when they get a copy. Other groups would use this concept in other fields. Today, the Free Software Foundation, the non-profit group Stallman founded to support the GNU project, continues to develop the GNU operating system, which is now the basis for what is commonly called Linux (though Stallman prefers that people call the system GNU/Linux due the fact that the system uses GNU for its core utilities, which are essential for running the system). In 2007, the FSF released the third version of their GNU General Public License, the software license under which most of the GNU system is licensed, and the original copyleft license.

Open Source

In 1999, several free software users, dissatisfied with the confusion over free software also meaning zero cost, decided to use the term open source to advocate free software, they also decided to promote the technical superiority of open-source software given the great amount of peer-review that open-source software gets. These days, such companies as IBM and Novell have embraced open source software and many use copyleft to protect their investment into the open source community.

Other Media

D20 System

In 2000, Wizards of the Coast, a major game company, developed a new version of their game Dungeons & Dragons. In a tactical move and inspired by Richard Stallman's efforts with software, they released the core game system under a copyleft license. They called it the D20 System. Wizards' reasoning was that by allowing other companies to use their game mechanics, it would drive the sales of their essential rulebooks up. They also believed that by opening up the game mechanics for their game, they would encourage a sort of Darwinian improvement to the system as publishers would revise ideas by other publishers until gamers decided which one worked best (Dancey). As of the year 2007, Dungeons & Dragons is enjoying success, and several gaming companies, even other major ones like White Wolf, use the D20 System for their gaming products. Many D20 System products act as supplements to Dungeons & Dragons. Wizards has also released at least two other games using the D20 System.

Creative Commons: "Get Creative"

Founded in 2001, Creative commons is a group that encourages copyright with "some rights reserves." Inspired in part by the work of the Free Software Foundation, in 2002 Creative Commons developed a series of licenses, designed to reach a middle ground between tyrannical copyright protection, "all rights reserved," and public domain, "no rights reserved" (Creative Commons). With the exception of their more recent 'sampling' licenses, their series of licenses grant permission to duplicate and distribute verbatim copies, and these days, they all require that someone who uses the work include an attribution referring to the original author. (This requirement used to be optional, but Creative Commons abandoned the licenses without this 'Attribution' requirement.) Depending on which licenses artists and authors select, they can also grant permission to use a work for commercial purposes, to modify a work. They can even add a copyleft requirement to their license; someone can modify their work, but that person must release the resulting work under the same Creative Commons license.

Reasoning

So, what do these groups have in common? Richard Stallman does what he does because he believes it to be the right things to do. Wizards of the Coast did it because they believed that if they opened their market, it would encourage a better sort of competition. The creative commons group felt that there was a need to create a body of works that were available for everyone to use to "get creative", a body of work to use for new expansion works.

What all these groups have in common is the realization that cooperation, rather than competition, had a greater benefit. It also improves the quality of their field and their works. With so many people developing free software, there are more people to find mistakes. With so many companies developing with the D20 system, Wizards of the Coast is certain that they have a market to which to sell. Creative Commons' ideas have created new business models, such as a record label that licenses its music under a Creative Commons license and actually encourages customers to share their music (Brown). Now these group's communities are certain that they won't lose the contributions people have made.

When people share what they have to offer, they gain as well. Whether it's a programming guru out to develop a system free from the hindrances of modern commercial methods, a record label that rejects the tactics used by others, or just a person with an essay to write, people can use copyright not only to protect their works for themselves, but also to protect their works for others. In many cases people don't need to hoard their rights, even if they want to make money. It can be better to share some of the rights normally granted only to the copyright holder.

Bibliography

Copyright 2007, 2008 Vincent Damewood.
This work is licensed under the Creative Commons Attribution-NoDerivs 3.0 License.
http://creativecommons.org/licenses/by-nd/3.0/us/