[10 November 2011]
One of the unwelcome side effects of recent trends in copyright (I mean the gradual shift, over the last fifty years, towards more and more protection for commercial interests and less and less protection of the public benefit) is that while it used to be easy to make one’s own work readily available for reuse by others, it now requires more careful planning. It used to be, for example, that if you didn’t care to claim or protect copyright in something you wrote, all you had to do was nothing: if you didn’t claim copyright, and the work was public, then it was in the public domain.
[“Hmm. How sure of you are that?” asked my evil twin Enrique, with a suspicious look. “Well, kind of sort of sure, I think.” “Better add a disclaimer, then, don’t you think?” “OK, right you are.”]
At least, that’s how I understand it, at a first approximation. (I am not a lawyer and have never much wanted to be, though a friend of mine who did go to law school once told me I’d enjoy the mysteries and mystique of tax law. So no reader should take anything I write as providing guidance about the law of the U.S. or any other country.) If you want good information about copyright, go find something by Pamela Samuelson.
[“OK, that’ll do, I guess. Is Pamela Samuelson really a good source?” “The best. Thank heavens she’s writing that column for Communications of the ACM again.”]
Nowadays, of course, in the U.S. this is no longer true: from the moment you write anything down, you own copyright in it, whether you want it or not, unless you do something to avoid it.
Of course, many people ignore this and behave as if the old legal regime were still in place. I’ve had representatives of U.S. universities say “Oh, feel free to reuse that stylesheet we wrote” — as if, because it carried no copyright statement, it were available for reuse by anyone interested. On the contrary! Since the stylesheet didn’t carry any licensing information or dedication to the public domain, it was certainly copyright either by the individual who wrote it or by the institution for which it was written. And since it didn’t carry any copyright information, it was impossible to know with any confidence who actually did (or does) own the copyright, and whom to contact for permission.
[“And these people who were trying to give you permission to reuse that stylesheet, were they legally empowered to enter into binding agreements on behalf of their institutions?” Enrique asked. “Dunno. I doubt it.” “So, tell me, do you have a barge pole handy?” “A barge pole? No, why?” “Because I want to warn you not to touch that code with a barge pole, that’s why. And if you don’t have a barge pole, it just feels kind of pointless. Do you have an eleven-foot pole, maybe?” “Oh, hush.”]
End result: I politely ignored (at least, I hope my silence was polite) their invitation to reuse that code, and I wrote new code from scratch.
[“Oh, come on,” Enrique hissed. “You know perfectly well you wouldn’t have reused that code anyway! It was full of
xsl:for-each elements.” (New readers may need to be informed that I seem to have an issue with
xsl:for-each elements; I’m sure it’s a perfectly fine construct and there’s nothing wrong with it. I only know that when I have a stylesheet with a bug and discover that it has
for-each constructs, rewriting the
for-each as an
apply-templates always seems to make the bug disappear. Go figure.) “Well, yeah. But even if I had loved the code, I would not have felt able to reuse it.”]
Of course, there are plenty of open-source and Creative Commons licenses to choose from, if you want to ensure that work you do can be re-used.
But who, in a collaborative project, is “you”?
If you write code or prose as an individual, outside the course and scope of your normal employment duties, then it’s straightforward to assert copyright in your own name. But if you are collaborating with others in a project, and you want to apply an appropriate license, in whose name should copyright be claimed? If only one person works on a given item (a program or a document) it’s easy to say that person should assert copyright and grant the license. But if more than one person works on it?
Some people incline to claim copyright in the name of the project, which feels plausible at some level: project is a name we sometimes give to the intentional collaboration of individuals to achieve some goal, and work done in furtherance of that goal can plausibly said to be done for “the project”.
But can a project which is not a legal entity actually be the owner of a copyright? If there’s a legal entity involved, it’s possible in principle to figure out, in case of disputes, who speaks for the entity and who makes decisions. But if there’s no legal entity?
Can copyright usefully be claimed by a research project, in the name of the research project?
[“Well, wouldn’t a research project be legally a form of partnership?” asked Enrique. “A partnership doesn’t have to be incorporated to be a legal person, right?” “Maybe,” I equivocated. “But remember, I am not a lawyer. And a fortiori you, as a figment of my imagination, are also not a lawyer.” “Oh, go soak your head. Whom are you calling a figment … ?”]
I notice that W3C, for example, which is not a legal entity, claims copyright in the name of W3C, but immediately after adds, in parentheses, the names of the three host institutions of W3C, which are legal entities.
It would be nice, wouldn’t it, if intellectual property rights served to promote the useful arts and sciences, instead of being an unproductive drain on the time and effort of creative people and a barrier to normal intellectual work? Oh, well, maybe someday.