Once upon a time, the concept of copyright was created as a method of controlling the rights of printers and publishers. It was a means of maintaining competition by regulating the right to copy a printed work. On the internet, though, “every act is an act of copying.” (Maxwell, 2014) Copyright thus extended its reach to practically every use of intellectual property, avoiding only those uses deemed “fair” under fair dealings (Canada) or fair use (US) provisions. Suddenly, “uses that before were presumptively unregulated are now presumptively regulated.” (Lessig, 2004)
All this regulation has led to various resistance movements that champion openness and sharing. Most notably are the copyleft movement and the Creative Commons. The more regulatory of the two is the Creative Commons, which offers a range of licenses that users can assign and allow certain uses of their work. The basic license requires only that the author receive credit, but users are able to restrict commercial uses or modifications to the original work, or require that further uses be shared under the same license. (CreativeCommons.org) This last one, the Creative Commons Share Alike (CC-sa) license, is essentially a copyleft idea: since all further uses of the work must be released under the same license, it is both permanent and contagious. Any open license, though, requires a notice that specifies which rights are claimed and which are waived.
At the opposite end to copyright is the public domain. Works whose copyright term has expired, usually fifty or seventy-five years after the death of the author, become relegated to the public domain, where licenses are not required. Even attribution, the basic CC requisite, isn’t important. It would be the the ideal sharing environment, except that a work can only truly get there when copyright expires—and by that time, especially in our fast-moving digital days, there’s a good chance it will be obsolete. The Creative Commons license CC0 approximates the public domain, but it still requires a notice waiving all rights. (CreativeCommons.org)
And that is the main problem with intellectual property protection in the digital age. Every option for controlling or not intellectual property is framed with the context of copyright. The public domain is where copyright doesn’t apply, and CC and other open licenses simply waive rights granted by copyright. With almost every use of almost every work “presumptively regulated,” every work needs to have a legal status: even the public domain is a legal status.
There are two implications here. The first is that anyone wanting to use a work must take certain legal steps. First, they must verify the status of the work, and whether it is available for use. Second, assuming it available, they must also identify any requisites of the license, such as attribution. And third, they must comply with the requisites. The issue becomes clear when a users wishes to remix several works, or when several layers of attribution become required, which could result in long, impractical and cumbersome lists of sources.
The second implication is more important. Expanding on a feudal analogy explained by James Boyle, John Maxwell says it best: “despite the existence of free and open-licensed materials, everything is still fenced in. Some o the fenced-in plots may display a notice that says, ‘you are free to graze your cattle here,’ but the fences themselves are an integral—perhaps the significant—feature of the landscape.”
The fact is that whether we allow our work to be replicated using one of the more restrictive CC licenses, or consign them to a quasi–public domain with CC0, we are still acting withing the parameters of copyright. To be sure, it is impossible to avoid copyright as it is today. But copyright was thought up to protect copying at a time when copying was not the norm—with the internet, copying is now not only the norm, it is ubiquitous. Even sharing a picture with a friend is essentially creating a copy. Thus, regulating the right to copy no longer makes any sense—copyright, as it was originally conceived, is obsolete. Only we don’t yet have an alternative, and it is incredibly difficult to think outside of the parameters of copyright we have always lived with.
The good news is that creating an environment more conducive to open sharing does not necessarily require a completely new system. What it does require is a reset of the industry mindset. As Lessig pointed out, right now almost every use is “presumptively regulated,” and copyright is automatically granted on creation. A notice is required to waive rights, but not to claim them. With the increasing popularity of open movements, this is rather counter-intuitive. But what if we reversed back to most uses being “presumptively unregulated”?
Perhaps every work, on creation, would be a member of the public domain, the free-range beef of intellectual property. Anything not carrying a notice would be presumed free. Creative Commons could still be used very much like today, except claiming rights rather than waiving them. And copyright would still function as it does, with the same time limits (or preferably shorter). The difference is copyright would have to be claimed—even a simple copyright notice might suffice—rather than assumed. Even today most works—in almost any media—carry some kind of copyright notice.
This reversal is significant because it reflects a change of priorities that can be seen in many fields, away from preoccupations with personal gain and toward community benefit. It would change the basic model into something essentially Wikipedia-esque, where any contribution—with few exceptions—is automatically open to the community with CC-sa license. Only instead of the open community having to exist within the parameters and confines of copyright, defining itself with licenses, it is the restricted community that would have to distinguish itself from the open fields, raising its own fences that do not apply to the community at large.