Spring 2005

Copyleft and copyright

Time to examine the debates about the ownership of intellectual property

Designers increasingly see the question of copyright and intellectual property as an important issue. More and more, they are concerned about being ‘ripped off’, and are told that establishing copyright is essential. But there is little understanding of what copyright is, how it works, whom it benefits or what alternatives there are. This Agenda hopes to raise awareness of the issues surrounding copyright and to empower the designer to make informed choices about how to use copyright and its alternative: copyleft.

A new book, Free Culture by Lawrence Lessig, a professor of law, raises important questions about the ownership of ideas and expressions. These draw on the example of open-source software, e.g. Linux, a free and freely available computer operating system that is now challenging Microsoft Windows. A diverse range of thinkers, designers, musicians, artists and activists have been questioning the way in which copyright is being transformed into a tool that benefits corporations rather than the artists and authors for whom it was originally intended. These discussions have also led to exciting changes in the way that some creators are allowing others to use and re-use their work. This sharing of ideas, knowledge and designs can be revolutionary for designers who, often without realising it, are drawing on the inspiration of those that have gone before. By allowing others to use their work, collaborations, critique and collective projects that were previously difficult to achieve can now take place.

It is crucial that designers within the creative industries equip themselves with the necessary knowledge to participate in discussions about free culture. Some of the arguments may appear technical, dull, irrelevant and even trivial, but, if we do not develop an understanding of the issues involved, how can we be part of a public debate that is important for our profession?

The right to copy
Printing was one of the most significant technical advances in history, transforming the spread of knowledge. Gutenberg’s development of movable type revolutionised the process of book production. Up until this point, the method of copying a work (e.g. scribed by hand) was only possible through a large investment of materials and physical labour. With the ability to reproduce large quantities of texts, but with no control over who did it, publishers soon began to worry about others reprinting their books. The British Statute of Anne in 1710 was the first modern concept of copyright that accorded exclusive rights to authors and their publishers. The duration was limited to 28 years – once that period ended, the work would pass into the public domain. Previously, governments in Europe had granted monopoly rights to publishers mainly to be able to censor books by licensing who had the right to print books. It was also assumed that the publishers owned printed works in perpetuity – a source of constant complaint by Enlightenment philosophers concerned about the restrictions on the flow of knowledge and the temptation of book publishers to set their prices as high as possible.

Essentially, copyright is a monopoly, a bundle of rights that applies to the ‘expression’ of an idea. It establishes the author as the creator of an intellectual work and creates exclusive legal rights for the author to control duplication, performance, or distribution of their creative works. So, for example, the writer of a book who transforms an idea of a novel into a written manuscript will find that copyright protects his manuscript but not his ‘idea’ or plot. Similarly, for a designer, the actual artwork itself would be protected under copyright and he would have the rights over its use. Copyright is one of a number of intellectual property rights, such as patents, trademarks and design rights, that allow the creator to exploit the work by licensing others to use it. The moment a work is created, it automatically becomes copyrighted. Examples of works include literary pieces, drawings, paintings, photographs, film, music and sound recordings and, more recently, computer software programs.

Many people confuse copyright with physical property. Although it is referred to as an intellectual property right, it is not actually property in the same sense as the ownership of a house or car. This is because essentially copyright is a right to copy the expression of an idea rather than an unlimited property right – a copy-right. The reason for the distinction between copyright and property rights in general is that after the initial effort has been put into producing a piece of artwork or a manuscript it can be infinitely reproduced at little or no extra cost. This is very different to physical property, which will slowly wear out. Additionally, if, say, I give you a copy of the artwork, it does not diminish my own use of it – we can all have a copy without anybody losing out. Again, contrasted with physical property, if I own a car, only I can drive it, since only one person at a time can use that car.

When copyright expires
Once the period of copyright ends, the work enters the public domain and becomes freely available for anyone to use and draw ideas from. The public domain is an increasingly valuable, but little appreciated, source of inspiration and material. Folk music and blues are perhaps the most obvious sources of creativity that unashamedly reuse old songs in new ways. The musicians in these fields seldom gave much thought to ‘locking up’ their works and restricting their reproduction. Today, however, things have changed. And as music has become a vast industry, so the values of the ownership of songs and recordings themselves have changed. This change in mentality has occurred wherever creativity has taken place in capitalist society; art, music and design are seen more and more in terms of their monetary value alone. Consequently, lobbyists have fought to extend copyright terms upwards from the initial 28 years.

The current term for copyright in the UK and the US is now 70 years after the death of the owner. Copyright can only be extended by changes in the law, often to abide by an international agreement, such as those developed through the World Intellectual Property Organisation (WIPO) – for example the WIPO Copyright Treaty 1996 which extended copyright to computer programs.

New technologies and new ways of using information are continually being developed, and these serve to question our assumptions about copyright and creativity. The current criminalisation of piracy, data ‘theft’ and hacking are the latest salvos from industries trying to restrict the flow and use of their creative work. It is interesting to note that the owners of these creative works are seldom the creators, and pressure for the extension and strengthening of copyright comes almost exclusively from the multinational corporations.

The origins of open-source and copyleft licenses can be traced back to the 1970s. An American software developer, Richard M. Stallman – who felt strongly that the sharing of source-code, development ideas and algorithms was fundamental to the software-development process – developed a ‘free’ version of the widely used Unix operating system. The Gnu(Gnu’s Not Unix) software was released under a specially created General Public License (GPL). This was designed to ensure that the source-code would remain open and freely available to facilitate the sharing of ideas and improvements. It was not intended to prevent commercial usage or distribution. This has led to the development of probably the most successful copyleft project, Linux, which is now considered by many to be superior to Microsoft Windows. Another example is Wikipedia, an online collective encyclopaedia that is created by the activities of millions of writers and editors freely contributing their time and energy to the project. This is licensed under the Gnu GPL and allows the free reuse, copying or distribution of text in the project, providing that the reuse is also similarly licensed.

These projects have inspired the US-based Creative Commons, an organisation that is putting into practice some of the ideas generated by Lawrence Lessig and others. Creative Commons provides an ecology of copy licenses, from public domain licenses to sampling licenses, all intended to encourage creative freedom. Lawrence Lessig writes widely on what he believes to be a headlong rush into privatising the public domain and thereby reducing the stock of raw materials that we all use in our creative projects. Clearly, if using a work becomes more difficult or, more likely, more expensive, then it will be increasingly difficult for those outside the corporations to create new and innovative work. However, releasing work under a Creative Commons license is not the same as giving it away. Instead it licenses ‘reuse’ under terms that you, as the creator, specify in your selection of a license.

The notion of scarcity
Scarcity is critical to the operation of markets, and property law has been shaped by, and indeed can function only due to, the fact that exclusive use is a hallmark of physical property. This allows markets to base their operations on the exchange of limited amounts of goods and price accordingly. However, as we move into the so-called Information Society, it becomes apparent that intellectual property does not operate in the same way as physical property. In fact the idea of scarcity, or the fact that information can have only one owner, does not apply. A design on a computer may be copied infinitely – many of us may work on the design separately or together, with no loss to anyone. Without scarcity or ‘wearing out’, it becomes impossible for the market to function.

Consequently, the companies who wish to sell us information see copyright as a means for constricting the flow and thereby increasing the scarcity. But it is an artificial scarcity and is only held in place through the operation of copyright law. And copyright law was never intended to operate as a restriction on the flow of knowledge indefinitely. Copyright was a bargain between the creators or authors of a work and the public, not only to provide some limited recompense to the creator, but also to increase the amount of knowledge, music and art in our society for the benefit of all. It is therefore clear that copyright is being misdirected from its original intention to that of meeting the needs of corporations desperate to safeguard existing profits and create new markets artificially. If this continues, to the detriment of our ability to find and use knowledge and information and to debate and deliberate over it, there could be dire consequences for both democracy and creativity.

The potential for collaboration
Copyleft allows you to license a design in such a way that its use results in a transformation in the way others can use it. It opens up a space of freedom and creativity for others to draw and build on your work, and for you to do likewise with theirs. This could have the potential to produce far-reaching consequences for collaboration and creativity. Some examples include SchNEWS, BBC Creative Archive, Archive.org, Loca Records, Wikipedia, Indymedia and many others across the Internet. If, as designers, we form a genuinely imaginative and creative industry, we should engage this potential and use our collective knowledge and skills to produce work that has real social benefits. Using the opportunity to use Creative Commons or copyleft licensing is about working with others, sharing ideas and knowledge and contributing to the pool of culture and creativity.

Many of us have already used things from the public domain, maybe it is about time we put something back.

First published in Eye no. 55 vol. 14 2005

Eye is the world’s most beautiful and collectable graphic design journal, published quarterly for professional designers, students and anyone interested in critical, informed writing about graphic design and visual culture. It is available from all good design bookshops and online at the Eye shop, where you can buy subscriptions and single issues.