Implementing a sensible copyright: "FLOW-IT"

It can be hard to get paid for producing free-licensed works. Software represents a niche where a lot of exceptions can be found, but for aesthetic works, the problem is severe. This has spurred a lot of innovative ideas for better incentive systems. Along the way, though, the most obvious and simple solution has mostly been overlooked: just re-implement the traditional limited copyright idea in a way that makes sense for the 21st century. Here's a simple solution that I call "FLOW-IT" for "Free Licensing Of Works -- In Time," which simply leverages existing Creative Commons licensing to do the job.

Copyright abolitionism?

Since free software, free culture, and copyleft arose primarily as an opposition movement to the existing practices of selling information per copy and the copyright system that supports that model, it's tempting to jump to a "copyright abolitionist" platform -- concluding that copyright is entirely a bad idea.

Early on, the structure of copyright with truly limited terms and a comparatively sedate pace of technological progress meant that works were still relevant when they passed into the public domain

But in fact, copyright has been a pretty successful system. It has allowed for the creation of large publishing industries and the support of a class of professional artists and authors. Early on, the structure of copyright with truly limited terms and a comparatively sedate pace of technological progress meant that works were still relevant when they passed into the public domain. Even before that, the system of "fair use" allowed for reasonable quotations, resale of used books and media, public libraries, and reference works.

The present crunch between our expectations from technology and the now-irritating strictures of copyright are the result of a collision between the slippery-slope caused by one-sided arguments in favor of benefitting publishers (and to a much lesser degree, authors) and the massive improvements in communications technology (which have increased our expectations for what "fair use" ought to include as well as decreased our patience for seeing works become freely reusable). We're not suffering from the existence of a copyright system, but rather from a gross imbalance in its terms.

We're not suffering from the existence of a copyright system, but rather from a gross imbalance in its terms

Even now, without considering any need for paying authors or publishers, the free software "copyleft" system is dependent on copyright -- and not just to undo the effects of copyright, as some imagine. No, in fact the free license that produces a regime most closely simulating the absence of copyright is the Creative Commons Attribution-ShareAlike license (which is not recommended for software -- for precisely this reason). Its copyleft does little or nothing to protect the continued practical readability or edit-ability of works, and focuses entirely on preserving unmoderated sharing.

Copyleft software licenses like the GNU GPL use their copyright monopoly powers to enforce practical modifiability: namely by insisting on the availability of source code

Copyleft software licenses like the GNU GPL, however, use their copyright monopoly powers to enforce practical modifiability: namely by insisting on the availability of source code. This can, of course, be viewed as a form of compensation to the authors, since contributed source code increases the value of their product (even if it's nearly impossible to directly monetize this contribution, it still has value). In fact, this is the real legal basis for copyleft -- it is essentially the price required by the license.

So there's nothing crazy about combining traditional copyright ideas with a free licensing regime.

Considering software

For software -- or at least for most software -- I would argue that the Richard Stallman's Free Software Foundation has got it exactly right: software that's free from the get-go makes the most sense -- as long as that freedom is preserved through a copyleft. First of all, that is liberating because software is fundamentally utilitarian -- software is valuable primarily because of the power it gives you to do other things. Also because it is utilitarian, there are a number of alternate/ancillary ways to fund its production (which reduces the need for a direct incentive to authors). Finally, the value of software is fleeting -- software only a year or two old may be made "obsolete" by changes in other software or in the data we need to process with it -- and that means that any delay in free-licensing it is a significant drag on culture.

Even here though, there are a number of popular libraries and programs which are not delivered immediately under a free license, but instead have two versions: a commercial up-to-the-minute version and a previous stable version that is released under a free license (the one that comes immediately to my mind is the Python Imaging Library). These continue to be useful to the free software community because they are released under free licenses while they are still very much relevant.

"Artists should be paid"

Certainly, in the field of aesthetic works -- music, art, film, and so on -- the need for immediacy is less severe. This is for two reasons: the first is that most users only want to appreciate the work, which requires a less extensive definition of "fair use" than makes sense for software. The second is that, without the same ancillary channels for remuneration, aesthetic works are hard to get paid for. Artists and authors have always had a hard time being paid professionally for their work -- society often underpays them for their contributions (which has encouraged some advocacy groups to adopt "artists should be paid" as a slogan). As a result, an incentive system is very important for the success of artistic works.

Both "high art" and "remix culture" are extremely dependent on the ability to reuse works

At the same time, though, both "high art" and "remix culture" are extremely dependent on the ability to reuse works. As we move into a more digital culture with a lower barrier for participation, we're greatly increasing our expectations on how quickly new cultural works can be incorporated and reinterpreted by other artists. This is an amazingly productive font of culture that is greatly enriching our lives -- we don't want to squash that. And that's precisely what the danger is from our present copyright system.

Politically, of course, improving the actual copyright law is a Hard Problem. All of the forces which made it as bad as it is today are still there, keeping it from getting fixed. Eventually that dragon will have to be slain, but we need solutions for now. Fortunately, we don't have to look far to find them.

Simulating a sensible copyright system

Just as the GNU Project introduced the GNU General Public License as a way to create a micro-sharing community, the Creative Commons created a set of related, modular licenses to establish another sharing community focused on aesthetic works.

Essentially, the Creative Commons (CC) provided a way to redefine "fair use" to include a lot of the kinds of sharing that free software provided. It also incorporated existing online behavior by legitimizing the ideas of "allowing non-commercial use" and "verbatim copying." Many people (often, but not always, including authors) intuitively accept these behaviors as things that "should" be allowed on the internet, so the Creative Commons provides licenses to make these uses legal -- even though the present copyright system doesn't consider them to be fair use.

Essentially, the Creative Commons (CC) provided a way to redefine "fair use"

Unfortunately, although the Creative Commons licenses solve a lot of problems, they haven't fixed the incentive problem. That's been left pretty much as a problem for artists to solve on their own. Some have found ways, but it's pretty clear that, after seven years, CC-licensed works still lag considerably behind the traditional copyright system in attracting talented professional authors and artists. Especially when it comes to their best works.

This is totally understandable: they need to make a living too.

Clearly, a better incentive system is needed.

Several ideas have been floated to provide a "collective patronage" system: a system where a large group of people contribute to a pot used to commission or pay for new art. It's not a bad idea, but most of the ideas fall prey to one or the other of the following pathologies:

  • Paying before or at delivery (no market-based evaluation)

  • Authors must set prices before delivery based on presumed value -- and they can't change their minds afterwards (no quid pro quo to support it)

  • Payment is by voluntary donation only (encourages free-riding by eliminating a direct quid pro quo relationship)

  • A monopoly -- sometimes government-enforced -- controls author success and payment, often excluding the most innovative and new talents (encourages stagnation and profiteering by publishers)

These aren't necessarily fatal: the existing advertising-based mechanism for most broadcast media suffers from these problems as does the collecting society approach used for music performances in many parts of the world. Both are successful commercial systems, so I do not by any means suggest that alternative incentive systems are a bad idea. On the contrary we need them especially to support works that have been undervalued in our existing system.

Somehow, though, the most obvious and conservative solution seems to have been overlooked: fix the imbalances in the traditional copyright system by effecting fixing both the "fair use" and the "limited times" constraints.

The Creative Commons actually tried an initiative based on this idea, called the "Founders Copyright", but it was a little too complicated and actually required a registration fee to use (this was necessary because it was actually based on legally releasing a work into the public domain). Founders' Copyright was a failure -- almost no one used it.

However, there's no need to put works into the actual public domain in order for a limited-copyright micro-regime to be established: a sufficiently free license (such as CC-0 or CC-By or even possibly CC-By-SA) will do just fine. The transactional costs of the "Founders' Copyright" just weren't necessary, and the system was too confusing. I would argue that those problems -- not a fundamental failing of the concept -- are why it failed.

"FLOW-IT" licensing

Any work can be licensed again. Technically, this really causes it to be dual-licensed, but that's usually a benefit (because it doesn't invalidate any uses permitted only under the original license). So for example, a work might be originally licensed CC By-NC-ND (so only non-commercial verbatim copying would be allowed). At some specified later date, it could be released under a genuine free license, like the CC By or CC By-SA.

What we need is an effective way to redefine "limited times"

This has been done a few times, but usually by making separate announcements. These puts the user who wants to advocate for a sensible situation in a position where they have to trust the author's promise that they will re-release the work under a different license in the future. As mentioned above for free software, there are a few working examples of this, but it is still a serious trust fault. What we need is an effective way to redefine "limited times".

Fortunately, the problem is incredibly easy to fix by taking advantage of the Creative Commons licenses and a deftly-worded "license grant" (the notice you write to put your work under a given license). In fact, I suspect that the reason it hasn't been promoted is that it just seems too easy and obvious to bother documenting. I call it "FLOW-IT" ("Free-Licensing Of Works -- In Time"):

FLOW-IT Grant Boilerplate

This work is (C) , all rights reserved, except as noted in the following license grant:

The RELEASE DATE of this work is .

As of the above RELEASE DATE, this work is licensed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives license, version 3.0 (unported). Use as the attribution for the purposes of the license.

Effective after the RELEASE DATE, this work may be additionally used under the terms of the Creative Commons Attribution License, version 3.0, (unported), with the same attribution.

The details in have to be filled in with the appropriate values:

should be the original creation date of the work for most purposes. Usually, specifying a year is sufficient

should be the author's name for copyright purposes

can be later than the and should correspond to when you published the work for distribution. For clarity, you should probably use year, month, and day

should usually be the same as the but the CC licenses allow for a bit more, such as the exact wording and also a website for verification of the licensing terms

is the analog to the copyright term. It should specify terms in an exact-to-the-day way, such as "six calendar months", "90 days", "one year", or "three years", etc.

I am not a lawyer, but as far as I know, there's nothing stopping you from making a license grant effective at a future date (if anyone knows differently, I'd appreciate a comment, by the way).

Obviously, the longer the term is, the more this license is like just using a CC By-NC-ND license with traditional copyright and therefore, the less friendly it is to free culture. This allows us to navigate the "slippery slope", it doesn't take it away. So it's up to you to figure out what you think might be "fair".

I can imagine a standard set of such license grants, with limited times ranging from about "three months" to about "seven years"

I can imagine a standard set of such license grants, with limited times ranging from about "three months" (reasonable for magazine articles?) to about "seven years" (reasonable a book or a full-length movie?). The idea is that these are the kinds of time windows in which the primary monetary value of such works can be recouped, but the works will still be relevant when released into the commons.

The other reason I picked the nickname "FLOW-IT" for this idea, though, is that works licensed in this way "flow" will flow in a fairly reasonable time from the traditional copyright zone into the free culture zone. It's a way to merge more traditionally-funded artist works into the free-culture "Commons." This is something that half-way solutions like the Creative Commons "NonCommercial" licenses just can't do on their own (because they never really make it into the Commons).

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This work may be distributed under the terms of the Creative Commons Attribution-ShareAlike License, version 3.0, with attribution to "Terry Hancock, first published in Free Software Magazine."

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