Sunday, June 16, 2013

Why is a license required for a Canadiana project built from public domain material?

I was asked in a comment why the CRKN announcement about the new collaboration with mentioned Creative Commons licensing.

Short answer:

What is in the public domain stays in the public domain.  What Copyright restricts, this project will be releasing under a Creative Commons license.  It is copyright law which defines the line between the public domain and what must be licensed.

Longer answer:

I am a system administrator at Canadiana, and not someone involved in policy relating to licensing of the parts of this project that will be covered by Canadiana copyright.  When it is a Canadiana decision, it is our Board of Directors made up of librarians and archivists, and our executive director, who ultimately are responsible for such policies.

As someone who has spent more that a decade dedicated to Copyright related policy discussions (see Digital Copyright Canada), and been involved in the Free Software movement since the early 1990's, I have my own opinions -- but they are my own and not those of Canadiana.

A work that is in the public domain in Canada is something which has fallen out of Copyright. For most things that is life of the author plus 50 years.  We have researchers at Canadiana that work on determining the author of works we wish to scan and a database of the deaths of authors to help with the public domain determination.

Copyright term extension has unfortunately been threatened by the federal government many times.  This sometimes comes in the form of treaty negotiations such as the Trans-Pacific Partnership (TPP) and the Canada-Europe Free Trade Agreement (CETA), with our trade representatives never adequately pushing back on calls for term extension.  In some countries term extension has even re-regulated works that were already in the public domain.  This is a risk of any project like ours given we rely on the public domain to be allowed to make the scans in the first place.

In order to scan for this project Canadiana or LAC essentially take photographs of the books, papers, and other articles being preserved and made accessible.  Then the photograph is digitized (sometimes from film previously taken, and sometimes more directly as part of the book/paper scanning process).

It is unfortunately a matter of debate whether a photograph of something which is not restricted by copyright has its own separate copyright held by the photographer. This ties into the debate about sweat of the brow vs originality.  While there are some professional photographers and their unions who believe that all photographs should be restricted by copyright, regardless of subject matter or originality, I believe most Canadians (including many lawyers reading some of  the relevant caselaw, which helps) would disagree.

To avoid being dragged into this heated debate, and to protect against future changes to copyright law, a license provides clarity even for those who wish/believe the photograph has its own new copyright.

If the decision was mine (note: it's not -- talk to your Librarian :-) any license on the photographs and resulting scans would be CC0 which is a method to try to put a copyrighted work as closely to the public domain as domestic law allows.  This avoids the question of whether a public domain dedication is possible in Canada by providing a back-up license.

Scanning is only part of the process, and not the part that takes the most resources.  Researching metatata about the images so that there is something to search on creates a new database.  All this metadata is considered new works under Copyright, and thus a license is required.

There may in the future be crowdsourcing of metadata, and legal clarity will be required there as well. I'm personally a fan of joint-copyright assignments or copyright waivers (CC0 style) for projects like this to allow the non-profit (in our case charity) project to enhance licensing over time.

There are plans, if funding comes together, to transcribe some of the handwritten papers.  More than the photographs there is a presumption that the transcriptions would have their own copyright, so licensing is required.

Hope this helps... I wish copyright weren't expanding all the time, but as it does there is an increased need for licensing where previously copyright wasn't relevant.  The scope and term of copyright is expanding at the same time as exceptions (such as fair dealings) is largely being diminished globally.  There were some minor fair dealings gains in Bill C-11, but there were far more losses.  Canadian copyright law will also be manipulated by Bill C-56, the bill allegedly dealing with counterfeit materials where most of the controversy is in the unrelated copyright aspects.

Note: Being part of the Free Software movement I prefer the subset of Creative Commons licenses which are similar to those we use.  I have never liked the vagueness of the so-called "Non Commercial" (NC) clauses, and thus them and have a preference for CC0, CC-BY and CC-SA.  With the definition I use for "open access" this is what is required, and don't consider works licensed with a ND (no-derivatives) or NC to be "open access".  But, as with many things, different people use different definitions.


Heather Morrison said...

Thanks for noting that this is your perspective / as an open access activist I consider granting blanket commercial rights to be problematic for open access as they permit downstream enclosure for commercial purposes. All CC license elements have both positive and negative consequences for open access and I argue that the present is a time for experimentation, not a rigid technical definition of OA. For more on this subject see my Creative Commons and Open Access Critique series

Heather Morrison said...

To return to the main topic, I should add that it may be best not to use licenses for material that is in the public domain, A simple statement that this is public domain should suffice, Any license risks some loss of the public domain. It should not be necessary to acknowledge the scanning body, for example - nice, but not required and requiring attribution is likely to be a temptation if a licensing approach is used.

Heather Morrison said...

Another thought is that placing a license on a work might help the user in the case of a dispute, but this could be at the expense of Canadiana if someone thought that Canadiana did not have a right to use the license. A good faith we believe this is public domain statement might be best and a clear policy to address disputes (eg takedown until resolved, leave up but with note that public domain status is not clear until resolved).

Yet another thought: CC is designed as a means of waiving rights under copyright. Even CC0 makes sense only as a way to speed works under copyright into public domain. We need some way of indicating that works really are public domain.

Russell McOrmond said...


The point of my mentioning "only my opinion" is to specify that I am speaking as a fellow open access advocate, rather than as someone who can claim to "represent" Canadiana in any way.

I agree with you that there is a need for discussion within the relatively new open access movement (compared to the Free Software movement) on licensing. I think this includes common misunderstandings of licensing clauses.

The "NC" forms of CC licenses simply mean that commercial uses need an additional license, often a royalty-bearing one. It does not in any way restrict the enclosure you are speaking of. I believe what you were thinking of is the "SA", or share-alike clauses which mirror the "Copyleft" terms of Free Software licensing. These restrict derivatives to being under the same (or compatible) license, and thus disallows closure.

Russell McOrmond said...


I understand the political sentiment of not mentioning licensing when it isn't necessary. I believe in a more practical approach that recognizes copyright law is always changing domestically and internationally, and you want to provide as much certainty as you can. The primary funding source of this work is libraries, which are always looking for certainty.

We shouldn't be narrowly thinking about Canada. Existing Canadiana collections are in 12 countries, and the laws about what is and isn't in the public domain is different. The open access movement needs to be thinking beyond narrow political boarders.

Providing a potentially redundant license does not, and can not, take something out of the public domain. In the Free Software movement we have the concept of dual-licensing where specific software is licensed under multiple licenses, and people use the one that best matches their needs. The license is only relevant where copyright exists, and should be ignored otherwise.

It is important to recognize we are only talking about copyright licensing of works where Canadiana or their partners in the project would be the copyright holder. This isn't a license on any of the underlying material, only the "photograph" (if it is or becomes necessary under copyright law) and the metadata. Copyright law itself doesn't allow Canadian to offer a "license" on the underlying works -- only the copyright holder and their designates can do that, which is in fact what copyright is.

Russell McOrmond said...

Heather said: "CC is designed as a means of waiving rights under copyright. Even CC0 makes sense only as a way to speed works under copyright into public domain. We need some way of indicating that works really are public domain."

CC0 has a public license fallback to handle the fact that public domain dedications or copyright waivers aren't possible in all legal jurisdictions. We live in a global world, and yet these most critical limiting aspects of copyright law are only local.

Otherwise, I agree with you.

This is, however, a matter of copyright reform and work at WIPO and other international policy bodies to create that clarity.

This isn't something which the librarians and archivists behind Canadiana can solve alone, or solve with a project like this. We all need to do the best we can with the largely broken legal system we work within. These librarians shouldn't be expected to be activists like you or I.