Copyright and alternatives: an overview

An article by Sandra Fauconnier on open access, open content, open source software and copyright (2003).

Copyright was originally conceived as a means to stimulate the creation of artistic and cultural artifacts, by safeguarding the income of creators of original works.

The first copyright regulations date back to the 17th Century, when piracy became a real problem because of the possibility to (re)print books easily and cheaply1. In many countries, the first real national Copyright Acts or copyright legislation became active in the second decade of the 20th Century. These laws protect the rights' holders of literary, scientific and/or artistic works against the unauthorized reproduction and dissemination of their work. Additional laws also protect performing artists, broadcasters, filmmakers and producers of audio works.

In the field of international law the Berne Convention (1886, numerous amendments and updates) has been of utmost importance. In October 2002, more than 150 countries have signed this treaty that regulates a number of international agreements on copyright. It stipulates, among many other things, that no registration, declaration (such as a 'copyright notice'2) or other formality is needed to claim one's copyright to a work. For performing artists the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations3 is of international importance. The 1996 Copyright Treaty4 and Performances and Phonogram Treaty5 released by the WIPO (World Intellectual Property Organization)6 further elaborate on these earlier Conventions. European legislation strives for uniformity between all member states and for laws that are in accordance with the worldwide WIPO treaties.

In Dutch copyright legislation, a work subject to copyright must bear the following characteristics:

  • originality - the work must be of a personal nature and carry the imprint of its maker;
  • the work is perceivable by the senses and have a tangible shape or form; therefore, ideas cannot be copyrighted.
The person who actually makes the work is its legal creator. Exceptions are possible when a work is created by a company's or institution's employee; in that case the company or institution is the legal creator. Works created as a result of freelance contracts are copyrighted to their original makers; when republishing the work, its commissioner has to ask for permission. The work may be used only once for its original purpose. Because of this, magazines are allowed to publish commissioned articles once and have to ask for permission before publishing them next time.


Dutch legislation stipulates that copyright on a work expires 70 years after the death of its author. The continuous extension of this copyright term is an international phenomenon - in the Netherlands, the previous term was only 50 years. After the end of the copyright term, the work falls into the public domain and can be used by anyone.

Consequences of technical developments

Until the beginning of the 1990s, successive technical developments - film, radio, TV, photocopiers, video and audio recorders, computer hardware and software - have made it much easier to copy content than used to be the case when the first copyright laws were voted at the end of the 19th and the beginning of the 20th Century. Yet, until the 1990s the fundamental system of copyright was not affected by these evolutions.

But in the meanwhile a few new types of 'work' were born, like software and databases: technically oriented information products that needed copyright protection as well. In 1999, the Dutch Database Law became effective, which offers copyright protection for collections of information. This development can be important for cultural institutions who administer their own databases and archives, who want to exchange this information with partner organizations and who want to distribute their content to a wider audience. For software, specific regulations have been integrated into the original 1912 copyright law.
Internationally, the situation is quite different - the WIPO has not yet adopted any database treaty and, in the United States, patents for software trigger a vivid discussion and meet violent opposition from free software advocates.7

The growing popularity of computer networks, the Internet and the World Wide Web is a much bigger challenge for copyright than all previous technical developments. The wide dissemination of digitalized knowledge becomes easier than ever. For many cultural institutions, the Internet is the ideal platform for presenting cultural heritage to a broad audience, but this would jeopardize the copyright protection of many works. Furthermore, exchanging cultural heritage via the Internet is often an international activity, which makes the applicable regulations much more complex. This is an illustration of the classical tension between the importance of financing creators on one hand and the need for broad dissemination of culture on the other. There is a vivid discussion whether copyright does or does not make sense in the digital age - as a consequence, among others, of the famous problems surrounding 'peer to peer' software used for (mostly illegal) online exchange of music and other files. Research in the field of digital rights management (DRM) - technological protection that prevents copying and redistributing digital works - is ubiquitous; copyright legislation for digital storage media becomes stricter and stricter. Other parties and lobby groups, on the other hand, are beginning to question copyright in a fundamental way. Is it, after all, still realistic to cling to legislation that is very hard to reinforce? Shouldn't we start looking for alternative economic models for financing artists and authors?

Alternatives for copyright

In a digital environment, copyright is often not the ideal instrument for protecting the authors' rights. Therefore, alternative models for the protection of digital cultural artifacts are under development - contracts and technological protection. This last method (also called "Digital Rights Management" or DRM) can be applied via encryption, passwords, electronic watermarking... in order to prevent that non-authorized users would obtain access to certain information. DRM is also designed to enable e-commerce with online content. Such technological systems call for legal protection themselves (e.g. anti-circumvention legislation that forbids hacking DRM systems).

Technological protection is not widely used yet; it often occurs in combination with contracts and licenses. DRM is subject to fundamental criticism8 because (apart from copyright and contracts) it forms a third layer of protection for information - an overkill situation which is not in accordance with the original function and objectives of copyright anymore; DRM mostly meet the needs of the 'middle men' (providers, publishers), not of the authors themselves. The dissemination of culture and knowledge within society - the first original objective of copyright - is not at all stimulated by this development. In an extreme doom scenario, copyright might even be totally abolished by these 'private' measures; the same might happen to the public domain.
The 'Open Access' or Free Online Scholarship movement9 is a good example of a community where traditional copyright is questioned for pragmatic and ideological reasons. Scientific publishing, which might be considered the first open source movement, has changed a lot during the last three decades. Scientific publishing, once a not-very-lucrative business, has now transformed into an entirely different economic model. An oligopoly of a few large publishing corporations now owns the majority of scientific journals; as a consequence, subscription prices of the most important research journals have become so high that many research libraries, especially in the Third World, can't afford these anymore. A growing movement of scholars is now actively pursuing an open model of free online publishing, outside the confinements of privatized journal ownership.

Open source and the public domain: "Some Rights Reserved"

On the Internet, the protection of intellectual property through contracts is currently more widespread than technological protection. The textual, interactive nature of this medium is a fertile ground for several types of user licenses; everyone has become acquainted with all kinds of 'click-through' contracts. Normally such licenses are legally reinforcable; problems could occur where licenses go further than copyright legislation.

In the context of software development, users' licenses are widespread. So-called 'open source' licenses10 are an interesting phenomenon; the GNU General Public License (GPL) is the most widespread example. They are used within 'free software' projects where developers are explicitly allowed to build upon the work of their peers.
Open source licenses protect the identity of the original creators, but they also allow copying, redistributing and modifying the source code. This calls for an alternative economic model where income is no longer gathered through author's rights but through complementary services like support and distribution.
Such licenses are promising, because they protect the creators and, at the same time, stimulate the public domain. The 'open content' model, with its own licenses11, extends this idea to non-software content - a development that might offer interesting alternatives for the cultural sector.

Creative Commons12, an initiative launched in the beginning of 2003, offers a flexible solution that situates itself between traditional copyright and the strict open source and open content licenses. It allows rights owners to specify that their content is "Some Rights Reserved", not "All Rights Reserved". Users can choose and combine a custom-made license, based on four fundamental choices. Should the work always be attributed to its original maker? Can the work be reused for commercial purposes? Are derivatives allowed or should the work be reproduced in its original form? Should the work be reproduced under the same conditions?
Creative Commons' legal solidness, flexibility and simplicity, combined with the wide exposure it received, makes it a promising new initiative - many agree that more flexibility is needed in order to bring the current, disproportioned copyright system back to a realistic framework.

  1. For an overview of the history of copyright from an UK perspective, see http://www.intellectual-property.gov.uk/std/resources/copyright/history.htm
  2. How to construct a copyright notice: http://www.benedict.com/info/notice/notice.asp
  3. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations: http://www.wipo.int/treaties/ip/rome/index.html
  4. WIPO Copyright Treaty: http://www.wipo.int/treaties/ip/wct/index.html
  5. WIPO Performances and Phonograms Treaty: http://www.wipo.int/treaties/ip/wppt/index.html
  6. World Intellectual Property Organization: http://www.wipo.int/
  7. League for Programming Freedom: Against Software Patents: http://lpf.ai.mit.edu/Patents/patents.html
  8. Lawrence Lessig (Stanford Law School) is a well-known critic of technolocical protection measures. See for example http://code-is-law.org/ (Code and other laws of cyberspace).
    See also Joost Smiers' publications;, a.o. Copyrights: a choice of no-choice for artists and third world countries; the public domain is losing anyway: http://www.constantvzw.com/copy.cult/cjs0.html
  9. See Peter Subers excellent overview website of the Free Online Scholarship (FOS) movement: http://www.earlham.edu/~peters/fos/
  10. Overview of open source licenses: http://www.opensource.org/licenses/index.html
    Overview of open content licenses: http://www.gnu.org/philosophy/license-list.html
    See also Donald K. Rosenberg: Evaluation of Public Software Licenses, http://stromian.com/Public_Licenses.html
  11. Some examples of Open Content licenses:
    Open Content License - http://www.opencontent.org/opl.shtml
    Free Art License - http://artlibre.org/licence/lalgb.html
    Design Science License - http://dsl.org/copyleft/
    See also http://dmoz.org/Computers/Open_Source/Open_Content/Licenses/
    and Jan Newmarch: Open Content Licenses, http://pandonia.canberra.edu.au/opendoc/paper.html
  12. Creative Commons: http://www.creativecommons.org/
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