Richard Poynder
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Why copyright need not be an issue

By RICHARD POYNDER

17 March 2003

When it was announced in January that Prentice Hall - the technical book publisher owned by Pearson - planned to release a new series of books under the Open Publication Licence (OPL), rather than traditional copyright, other publishers were baffled.

In using the OPL, Prentice Hall will forgo many of the perceived benefits of copyright. Anyone will be free to copy and redistribute the books and, while regular print copies will be sold through bookshops, free electronic copies will be available on the internet.

Since the books will all deal with open source software topics, says Bruce Perens, series editor, it was felt important to cater to audience expectations. "Open source software has a different kind of licence, so if you produce a book about that software without the same licensing it is not seen to be very credible by those who make the software."

Devised in 1999 by David Wiley, an assistant professor at Utah State University, the OPL is an adaptation of the most widely used open source software licence, the General Public Licence (GPL).

The OPL permits others freely to copy, modify and redistribute works licensed under it, usually without needing to seek rights holders' permission.

However, the OPL does not require copyright to be waived but stipulates a different set of usage rules. Under the OPL, for example, any derivative work must credit the original author and state what changes have been made, when they were made and who made them. It must also be distributed under the same licensing conditions as the original work.

Mark Taub, editor in chief at Prentice Hall PTR, says the OPL does not preclude commercial use. In fact, he predicts that offering free electronic versions will increase print sales. "In 99.99 per cent of cases consumers still want their books in print. So we are not acting in a purely altruistic fashion here. We think it is good business."

While Prentice Hall is using the OPL to meet the specific expectations of the open source community, some maintain that in the age of the internet open licensing is a more appropriate model.

Last December an organisation called the Creative Commons made available on the web a set of licences intended to encourage a more open approach. Those using the licences can stipulate qualifying conditions, including the requirement that credit is given to the creator; that use is permissible only for non-commercial purposes; or that modified works are distributed only on a "share-alike" basis. Like the OPL, this requires derivative works to be distributed in the same way as the original. Derivative works, or verbatim copies, can be outlawed altogether.

The licences are freely available for public use and can be created on the fly from a menu of options. A licence is then generated in three formats: a legal contract that would satisfy a lawyer; a short, human-readable summary in plain English and, where required, a machine-readable version.

Three months after going live, says Glenn Otis Brown, Creative Commons executive director, some 37,000 websites offer content under a Creative Commons licence.

What the Creative Commons provides is a mechanism to allow rights holders to replace the traditional copyright formula of "all rights reserved", with "some rights reserved".

Anthony Murphy, director of copyright at the Patent Office, says this is not new. "Copyright owners have always had the freedom not to exercise their rights, or indeed to exercise them only to a very limited extent," he says.

Open licensing is growing rapidly. It is also being used by critics of current laws as a way of signalling disagreement with the power and duration of the monopoly rights now provided by copyright. "In the UK today this lasts for the lifetime of the author, plus 70 years," says Neil Wallis, an IP lawyer at City law firm Macfarlanes. "That is a very, very long time. After all, if I wrote something today and died in 2050, it would still be in copyright in 2120!"

But it is the cocktail of digital rights management (DRM) technologies for electronically locking up content, combined with controversial new laws such as the 1998 US Digital Millennium Copyright Act (DMCA) and the European Union copyright directive - which have made circumventing DRM systems a criminal offence - that has proved the catalyst for the sudden interest in open licensing. The concern, says Mr Murphy, is that copyright owners "will be able to use electronic padlocks to achieve perpetual copyright".

The failure of recent attempts in the US to overturn the Copyright Term Extension Act - a 1998 change that harmonised US copyright laws by extending the copyright term by 20 years - has intensified this disaffection. The Creative Commons has responded by introducing founders' copyright. Using the first US copyright law of 1790 as a model, this allows rights holders to limit their monopoly to just 14 years, after which they will voluntarily release their work into the public domain.

The battle then has moved from the courts and the lobby room to the streets. As Mr Brown puts it: "People are using private contract law to simulate public benefits that the law is not providing."

Many hope that wide-scale adoption of open licensing will lead to a reappraisal of current laws. Mr Murphy does not rule this out. "It is entirely possible that civil servants and politicians, and common sense itself, will say: 'Maybe we need to look at this again.' "

However, unless open licensing is proved commercially it is likely to remain a fringe activity. Novelist Mr Cory Doctorow, for one, is optimistic. In less than a month, more than 70,000 copies of his book, Down and Out in the Magic Kingdom, have been downloaded.

"This is enormous reach for a first novel," he says. Importantly, it has not harmed print sales: the book was recently number 19 on the Amazon science fiction bestseller list.

Tim O'Reilly, chief executive of technical book publisher O'Reilly & Associates, is more circumspect. After publishing 10 books using open licences, he believes the jury is out.

Prentice Hall's decision to experiment with open licensing, however, has been a huge fillip. "Never before has so prestigious a publisher as Prentice Hall done this," says Mr Perens. "And never has an entire series been published in this way before."

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