liasa faife seminar 280909

… and everything in between…Creative Commons & Open Resources

LIASA / FAIFE workshop

28 September 2009

Tobias Schonwetter

(1)copyright - recap

“Only one thing is impossible for God: To find any sense in

any copyright law on the planet.”

“Copyright is the exclusive right in relation to work

embodying intellectual content to do or to authorize to do

certain acts in relation to that work.”

(O.H. Dean)

Protected works in SA

1. Literary, musical and artistic works (incl photographs);

2. Cinematograph films;3. Sound recordings;4. Broadcasts;5. Computer programs

Exclusive rights

1. reproduce2. make adaptations3. broadcast4. distribute5. perform6. display in public7. cause a work to be transmitted in a diffusion service

Basic requirements for copyright protection

Originality

Material form

Qualified person

no registration necessary

the idea itself is NOT protected

Fair balance between the interests of right

owners and public/users

By default:

automatic All Rights Reserved situation

Permission is required for most uses of most works!

Copyright exception and limitation

Unless a copyright exception and limitation applies.

Such as:

Fair dealing (for purposes of study, research, private use) Quotation Illustrations for teaching Specific library and archive exceptions

Copyright exceptions and limitations

Library and archive exceptions:

- (only for library and archives)

-For non-commercial purposes only-Institution must be open to the public-Reproduction must incorporate copyright warning-For purposes of preservation of unpublished and replacement of published works only-Or, on request of user, for purposes of private study or personal or private use

But not more than one copy (or isolated and unrelated reproduction) of a reasonable portion of the work & “no conflict with normal exploitation of the work”

Problem: Clearly not drafted with digitisation in mind

(2) selected problematic

issues: copyright term, the public domain,

orphan works, digitisation

Copyright term: An example:

10 20 30 40 50 60 70 80

X

90

X

Author writes a book at age 30

The author dies at age

70

Copyright expires in

SA

…if children are born on average every 25 years in the author’s family…

…great great grand children are born!

The public domain

Orphan works

Orphan works

Copyright protected works whose copyright holder is difficult or

impossible to contact. In SA: no relevant legislation!

And then, of course, …the issue of digitising

unlimited number of copies

virtually instantaneously

no loss of quality

distribution of copies around the world in seconds

(1) copyright laws were originally designed for

analog technologies of reproduction

(“hardcopy rules in a softcopy world”)

(2) new categories of multi-media works do not always fall neatly under the

present definitions

(3) history of copyright

indicates that it is a right to be

exercised by and against

professionals (not end-users!)

General changes

S12 General exceptions from protection of literary and musical works

(1) Copyright shall not be infringed by any fair dealing with a literary or musical work- (a) for the purposes of research or private study by, or the personal or private use of, the person using the work; (b) for the purposes of criticism or review of that work or of another work; or (c) for the purpose of reporting current events-[…]

S17 General exceptions regarding protection of sound recordings

The provisions of section 12 (1) (b) and (c), (2), (3), (4), (5), (12) and (13) shall mutatis mutandis apply with reference to sound recordings.

Also: the new international dimension (which court has jurisdiction, what law is applicable in cross-border

infringement cases (P2P) etc.) conflicts with the traditional principle of territoriality on which copyright

law is based.

And what does all this mean for copyright

law?

Third-party liability of ISPs and P2P service provider?

Some say copyright is dead! My prediction, however, is that copyright law is going to be around for some time because it was confronted with significant technological changes in the

past and never disappeared – but a revision of SA’s copyright laws is a matter of urgency.

(3) Copyleft /

the public domain

(4)

and Open Resources

How can we make copyright protected material more

accessible?

1. Availability and accessibility of copyright protected material often is in the public interest, particularly in relation to educational materials

2. Automatic and strict statutory copyright protection is often NOT in the interest of creator/ rights holder

Open educational resources are educational materials

and resources offered freely and openly for anyone to

use under open licenses to re-mix, improve and

redistribute.

Main aim: Furtherance of Education (especially for those who otherwise could not afford text books etc, particularly but not exclusively in developing countries -

California example)

As a matter of fact, not only OER but the entire Open Access movement builds upon open licences because open-access material is, by definition, digital, online, free of charge, and free of most copyright and licensing restrictions.

Remember? Rights holders automatically have a bundle of exclusive rights in their works, eg reproduction, adaptation, distribution + moral rights

Not in the interest of rights holders?

3 categories of rights holders:

Those who want more rights than the law affords

Those who want less rights than the law affords

Those who are happy with the rights the law affords

Those who want more rights than the law affords:

MORE RESTRICTIVE LICENCE

Those who want less rights than the law affords:

(MORE) OPEN LICENCE

(MORE) OPEN LICENCES / Copyleft licences

•Non-profit organisation•Founded in 2001 by Stanford law Professor Lawrence Lessig and others•Licences ported to over 50 international jurisdictions, incl SA (UCT)•More than 130 million CC licensed works by 2008•Latest CC licence version: 3.0 (2.5 in SA)

Key features of CC licences…

“some rights reserved”- principle

(as apposed to the “all rights reserved”- principle on which

copyright law is based)

•Open to anyone•Accompany the work•Non-exclusive•Allowing use/modification•Royalty-free•Perpetual

Based on 4 key licence elements

1. Attribution (BY)2. Non-Commercial

(NC)3. No Derivatives (ND)4. Share Alike (SA)

6 licences to choose from …

Each of the 6 licences comes in three versions:

How does it actually work?

Go to www.creativecommons.org …

One last thing…

Creative Commons as such is providing the tool (the licence) but

does not become part of the relationship between rights holder

and user! Nor is it a law firm.

Do if you need help implementing CC licences, call a lawyer!

Thank you!

My contact details are:Tobias Schonwetter

tobias.schonwetter@uct.ac.zatobias@chettylaw.co.za

Creative Commons Licence

• This presentation is the work of Tobias Schonwetter. The work is available under a Creative Commons Attribution Share Alike South Africa 2.5 licence.

E-mail: tobias.schonwetter@uct.ac.za

Creative Commons License Deed

Attribution-ShareAlike 2.5 South Africa

You are free:

•to Share -- to copy, distribute, display, and perform the work •to Remix -- to make derivative works

Under the following conditions:

•Attribution. You must attribute the work in the manner specified by the author or licensor. •Share Alike. If you alter, transform or build upon this work, you may distribute the resulting

work only under a license identical to this one. •For any reuse or distribution, you must make clear to others the license terms of this work.

•Any of these conditions can be waived if you get permission from the copyright holder.

Your fair use and other rights are in no way affected by the above.

This is a human-readable summary of the Legal Code (full licence). The full licence is available at http://creativecommons.org/licenses/by-sa/2.5/za/.