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Why Free Use is Fair
 

Why Free Use is Fair

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A presentation by Lewis Brown at the National Digital Forum (NDF) Fair Use Forum, 24 November 2009, Soundings Theatre, Te Papa Wellington. ...

A presentation by Lewis Brown at the National Digital Forum (NDF) Fair Use Forum, 24 November 2009, Soundings Theatre, Te Papa Wellington.

The real challenge for cultural heritage institutions to meet is free use, not fair use or fair dealing.

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  • A presentation by Lewis Brown at the NDF Fair Use Forum, 24 November 2009, Soundings Theatre, Te Papa Wellington. The real challenge for cultural heritage institutions to meet is free use, not fair use or fair dealing.
  • By free use I mean free as in speech…
  • … not free as in beer.
  • To channel Lawrence Lessig from his book Free Culture for a bit: “ A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights…”
  • “… But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past…”
  • So when copyrights expire and return works to the public domain, the public domain becomes a place of creative value where works can be taken and freely used.
  • It allows this…
  • … .and this…
  • … to become this.
  • We’re used to thinking about copyright as laws for authors or creators or publishers. But really, copyright legislation does just one thing: it regulates the technology of copying.
  • It started in the 1700s in England…
  • With this device. For those that haven’t seen one, it’s a Gutenberg press. I did a bit of Googling and found what I suspect to be the world’s first tweet…
  • “ Finally finished invention. Disappointed to learn that no one can read.”
  • The Gutenberg press was perhaps most well known for this, the Gutenberg bible. By 1700, the printing press was in great demand among pampheteers and campaigners as the best way of spreading social commentary - and flagrant ripping-off of their written works was causing all sorts of havoc.
  • Meet Queen Anne, who was on the throne at the time…
  • This is her famous statue…
  • But this is her more famous statute, the Statute of Anne, an “Act for the Encouragement of Learning..”, and the world’s first copyright act.
  • In the view of the House of Commons, the Act was written in acknowledgement that: “Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing… Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families….
  • “…For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books…”
  • Notably, the Act provided copyright protection for the term of fourteen years “and no longer”
  • One pamphleteer and well known social and political writer and commentator at the time was this man, Daniel Defoe
  • This is another image of Daniel Defoe being pillorised – in worse times, perhaps before the advent of copyright…
  • But Daniel Defoe perhaps became best know for this work, The Life and Adventures of Robinson Crusoe. This work has been claimed to be the first ever novel to be printed in English, and certainly it was very successful, making Defoe a good income. A best seller in its day, for 14 years Defoe’s copyright meant that publishers and reprinters had to ask permission of him before copying (although copies were still widely pirated).
  • But other publications, such as the Gutenberg bible, remained available for free use, to be copied without needing permission
  • At the end of 14 years, Defoe’s copyright expired and Robinson Crusoe fell into the public domain, available for free copying, adaptation and use without needing permission
  • Let’s jump forward 100 or so years to the 1800s in New Zealand…
  • The first printing press hit our shores sometime in the the 1830s. This is an image of the Colombian printing press used by the country’s first printer…
  • William Colenso.
  • This is another picture of an older William Colenso – this card says “Kind regards, I am yours faithfully, W Colenso”. But there is some controversy over whether William Colenso was really the country first printer…
  • The claim to fame is also made by this man, William Yate, who it is said printed the first pages, some religious catechisms, some four years before Colenso’s printery was established.
  • These claims were the subjectof a paper read to the Royal Society in 1900…
  • The author H Hill, a skeptic of Mr Yate’s claims, stated that “ On the 1st September, 1830, Mr. Yate wrote, ‘Employed with James Smith in printing off a few hymns in the native language. We succeeded beyond our most sanguine expectations’... [yet] the press, the printer, James Smith, and the type disappeared as mysteriously as they appeared.”
  • What is clear is that some pages were printed by William Yate, even if the date and place is in dispute. Here is one of them, a translation into Maori of religious tracts. The translation and printing in of these first pages was however, without dispute, a free use of the original works…
  • As was the later translation into Maori and printing by William Colenso of the Bible at Paihia…
  • … and equally the translation and printing in the 1850s of the story Robinson Crusoe in Maori was a free use.
  • In fact, since it was first written nearly 300 years ago, Robinson Crusoe has been adapted over 700 times that we know of…
  • Like this 1780 German adaptation where Robinson Crusoe’s character was made a woman, a free use…
  • This 16 page abridged version reducing from the orginal of 364 pages, and with illustrations, a free use…
  • The 1815 adaptation of the Swiss Family Robinson, based directly on the original story, a free use…
  • Or this version embellished with new engravings, a free use.
  • There has even been the Robinson Crusoe Blues…
  • A movie of sorts…
  • … and two recent and successful novels, both examples of free use that puts paid to the notion that public domain material is only old stuff no one is interested in.
  • So to say again, free use gives the public domain creative value that can live and be reused in many different forms time and time again…
  • Although some free uses seem to create less value, like this first result from Google, which restricts a 1780 version to snippet view.
  • So copyright started with printing technology. Let’s fast forward through time and many of the other copying technologies introduced since then…
  • (Photography)
  • (Phonographic records)
  • (Boradcast radio)
  • (Motion picture film)
  • (Broadcast and cable television)
  • (Audio tape)
  • (The photocopier)
  • (The VCR)
  • (The fax machine)
  • (The Personal Computer)
  • (The Flopy disc, Zip drive and CD-ROM)
  • (The iPod)
  • Until we get to today, 2009 in England…
  • 300 years after Queen Anne passed her copyright statute
  • In this time, the tools of the trade for professional cultural institutions have expanded to include digital copying technology such as digital scanners and cameras
  • Culutral institutions have expanded their presence online as a result of owning these copying machines, exposing hundreds of years of public domain cultural heritage to users online everywhere. Except…
  • … . public domain photographs like this, taken over 130 years ago, are now copyright British Library Board…
  • … and written permission is required for use
  • This 301 year old painting of the parliament of Queen Anne is now copyright The Royal Collection…
  • … and written permission is required for use
  • This 1705 painting of Queen Anne herself is copyright National Portrait Gallery of London…
  • and costs up to £400 to licence
  • While this 120 year old painting, now copyright National Gallery…
  • Costs over £1000 to licence for commercial use
  • Even this 1862 engraving has copyright claimed on it…
  • and what’s more led to the National Portrait Gallery threatening to sue the Wikimedia Commons for copyright violation for copying it onto their website.
  • In the UK it seems that the public domain is less like this…
  • … and more like this, a public domain that has whithered from the space that Queen Anne and the parlimentarians originally had in mind. Indeed these actions by publicly funded heritage institutions in the UK led the Wikimedia Foundation to state…
  • “… To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain”
  • So to 2009 in New Zealand
  • Similarly to the UK, the tools of the trade for professional cultural institutions in New Zealand have expanded to include digital copying technology such as digital scanners and cameras
  • Culutral institutions have likewise expanded their presence online as a result of owning these copying machines, exposing hundreds of years of public domain cultural heritage to users online everywhere. Except, while we don’t have the claims of copyright ownership to the same degree, we do have…
  • This: no copying “…without the permission of the National Library of New Zealand”
  • This: No copying “…without the express written permission of Te Papa”
  • This: “ you must complete the Request for Permission form from the National Library of Australia”
  • “ Permission must be obtained from the Royal Society of New Zealand for any other use”
  • This: “ All other use requires permission from the Alexander Turnbull Library”
  • And this Maori text of Robinson Crusoe: No copying “ without prior permission from the Hocken Library in the first instance.” Almost all of our websites require prior permission for copying public domain works, not from the creators, who are all long dead, but from the institutions that in many cases have control over and sole access to the originals.
  • Returning to Larry Lessig from the start of the presentation, he tells us that “… The opposite of a free culture is a ‘permission culture’ - a culture in which creators get to create only with the permission of the powerful, or of creators from the past.” We need to think about the role of public collecting institutions in protecting the public domain, and meeting the challenge…
  • … put forward by Wikimedia: “...If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers.”
  • The way we create culture is through free use
  • The way we preserve culture is through making copies
  • Increasingly digital copies
  • Everything in this powerpoint is a digital copy
  • More culture than ever relies on permitted use
  • But never mind fair use or fair dealing, permitted use of the public domain is not fair anything
  • We need to fix this
  • You may be pleased to know we’re making a start. The National Library, Te Papa and Archives New Zealand have begun meeting to discuss their online statements around access and copyright
  • … The National Library has joined Flickr Commons in showing images with no known copyright…
  • … and DigitalNZ has recently published a public domain guide to help identify images that may be out of copyright.
  • And if you as an institution have images that you think are public domain, consider donating digital copies to the Wikimedia Foundation
  • Thank you.

Why Free Use is Fair Why Free Use is Fair Presentation Transcript

  • Why free use is fair www.flickr.com/photos/dugspr
  • Free as in speech www.flickr.com/photos/kcivey
  • Not free as in beer www.flickr.com/photos/16038409@N02
  • “ A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights…”
  • www.flickr.com/photos/scobleizer “… But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past…” – Larry Lessig
  • Free use gives the public domain creative value www.flickr.com/photos/santioliveri
  • It allows this
  • and this
  • to become this
  • Copyright regulates the technology of copying www.flickr.com/photos/bettyx1138
  • 1700s, England
  • www.flickr.com/photos/aplumb
  •  
  • www.flickr.com/photos/nastiki
  • Meet Queen Anne
  • www.flickr.com/photos/wallyg Her famous statue
  • Her more famous statute
  • “ Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing… Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families….
  • “… For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books…”
  • www.flickr.com/photos/katphotos “… for the Term of fourteen Years to Commence from the Day of the First Publishing the same, and no longer.”
  • Meet Daniel Defoe
  • (Before copyright)
  • Permitted use only until 1733
  • www.flickr.com/photos/nastiki Free use
  • Then free use in the public domain
  • 1800s, New Zealand
  • Trevor Ulyatt, Alexander Turnbull Library
  • Meet William Colenso
  • He was very formal with autographs
  • Meet William Yate
  •  
  • “ On the 1st September, 1830, Mr. Yate wrote, ‘Employed with James Smith in printing off a few hymns in the native language. We succeeded beyond our most sanguine expectations’... [yet] the press, the printer, James Smith, and the type disappeared as mysteriously as they appeared.” - H. Hill Read before the Hawke's Bay Philosophical Institute 13th August, 1900
  • Free use
  • Free use
  • Free use
  •  
  • Free use
  • Free use
  • Free use
  • Free use
  • Free use
  • Free use
  • Free use
  • Free use gives the public domain creative value www.flickr.com/photos/santioliveri
  • (Although...?)
  • www.flickr.com/photos/aplumb Fast forward...
  • www.flickr.com/photos/funadium
  • www.flickr.com/photos/jkohen
  • www.flickr.com/photos/jkohen
  • www.flickr.com/photos/badbrainz
  • www.flickr.com/photos/tomislavmedak
  • www.flickr.com/photos/makarellos
  • www.flickr.com/photos/sherlock77
  • www.flickr.com/photos/tellumo
  • www.flickr.com/photos/else10
  • www.flickr.com/photos/befuddledsenses
  • www.flickr.com/photos/dmuth
  •  
  • 2009, England
  • 300 years after Queen Anne
  • www.flickr.com/photos/tylerlove
  •  
  • 1877 photograph ©British Library Board
  • Written permission required
  • c1708 painting ©The Royal Collection
  • Written permission required
  • 1705 painting © National Portrait Gallery, London
  • Licence fee: up to £400
  • 1890 painting ©National Gallery
  • Licence fee: Up to £1050
  • 1862 engraving © National Portrait Gallery, London
  • Threat to sue Wikimedia Commons for copyright violation
  • public domain creative value www.flickr.com/photos/santioliveri
  • www.flickr.com/photos/sovietuk public domain creative value
  • www.flickr.com/photos/sovietuk “… To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain” - Wikimedia Foundation
  • 2009, New Zealand
  • www.flickr.com/photos/tylerlove
  •  
  • 1868 photograph It must not be reproduced, downloaded, printed, adapted, distributed or published without the permission of the National Library of New Zealand
  • c1860 photograph None of the content of this website may be reproduced, copied, used, communicated to the public or transmitted without the express written permission of Te Papa
  • c1840 painting You may save or print this image for research and study. If you wish to use them for any other purpose, you must complete the Request for Permission form from the National Library of Australia
  • 1900 text You can search, browse, print and download for research and personal study. Permission must be obtained from the Royal Society of New Zealand for any other use
  • 1837 text You can print from this site for personal research. All other use requires permission from the Alexander Turnbull Library
  • 1852 text No images are to be reproduced in any format or media without prior permission from the Hocken Library in the first instance.
  • “… The opposite of a free culture is a ‘permission culture’ - a culture in which creators get to create only with the permission of the powerful, or of creators from the past.” – Larry Lessig
  • www.flickr.com/photos/sovietuk “ ...If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers.” - Wikimedia Foundation
  • The way we create culture is through free use
  • The way we preserve culture is through making copies
  • Increasingly digital copies
  • Everything in this powerpoint is a digital copy
  • More culture than ever relies on permitted use
  • Permitted use of the public domain is not fair anything
  • We need to fix this
  • You may be pleased to know we’re making a start
  •  
  •  
  •  
  • Why free use is fair www.flickr.com/photos/dugspr Lewis Brown twitter: @wiselark email: advice@digitalnz.org