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Creative Work Law for the EU. We have the right to share!

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  • Andrius Kulikauskas
    The Public Domain is key for our Worknets culture. Public Domain content is copyright-free (like our letters) so that all can share and reuse freely, without
    Message 1 of 1 , Sep 14, 2009
      The Public Domain is key for our Worknets culture. Public Domain
      content is copyright-free (like our letters) so that all can share and
      reuse freely, without asking for permission.

      Please share your thoughts on the Public Domain. What would be good
      policy for the European Union and the world? Your participation now is
      important if you'd like to participate in our COMMUNIA meeting,
      especially on June 28-30, 2010 in Torino, Italy. We have some travel
      money to get together then!


      Minciu Sodas is a member of the European Union's thematic network
      COMMUNIA for the Public Domain http://www.communia-project.eu We (and
      all) have the opportunity to provide our ideas for what should be the
      European Union's policy regarding the Public Domain. I encourage us to
      write and will share our thoughts through the COMMUNIA mailing list and
      at the Barcelona meeting on October 1-2, 2009.

      I share below my own thoughts on the policy that I would like to see!
      Of course, my letter is in the Public Domain.
      Andrius Kulikauskas, Minciu Sodas, http://www.ms.lt, ms@...

      We Have the Right to Share

      Currently, the laws of the European Union presume that any creative work
      is necessarily protected by copyright and the author must explicitly
      approve all uses. This conflicts with the wishes of people who want to
      share creative work freely in the Public Domain so that all may rely on
      their own best judgement to use it, transform it, incorporate it and
      share it.

      We, the people of the European Union, acknowledge a right to share, just
      as we do the right to own. These two rights are related. The purpose of
      ownership is stewardship. The steward of property is recognized as the
      judge of how to apply that property so that it serves the best use of
      all. The steward has the right to transfer their property, to allow some
      or even all to apply their own best judgement. If we have the right to
      own property, then we must also have the right to share it.

      By acknowledging the right to own, we acknowledge the wisdom of the
      society of all which acknowledges and defends such a right. Likewise, we
      may entrust our creative works to that same wisdom.

      Creative Work Law

      Creativity is positive. There is no need for laws to restrict it, but
      rather for laws to restrict those who might inhibit it, those who might
      retard the evolution of society. Creative work law (historically known
      as copyright law) is phrased and structured accordingly.

      Our right to share is especially relevant for creative works from which
      other works can be derived or copied. Such works are purposeful and
      fruitful when they inspire other such works, when they are social.
      Creative work law does not apply to secret works or private works, but
      to social works. The purpose of creative work law is to encourage the
      creation of fruitful works and social wealth, not fruitless works nor
      private wealth. Creative work law is not meant to encourage the creation
      of single works, but rather, to encourage the creation of all of their
      derived works, and especially, the cultivation of a creative culture.

      A culture is shaped by ethics and norms. Norms are implicit, but laws
      are explicit. Laws may support norms, but cannot define them. Creative
      work law is established to nurture a creative culture, including support
      and regard for creators and creations. Creative work law succeeds by
      defining a broad and thriving "grey zone" of "fair use".

      The joys of creative work are direct and thus a greater benefit than any
      monetary profit. The best use of a work is informed by this joy more so
      than any other incentive. Creative work law protects, first of all, the
      interests and rights of those who wish to enjoy a work so that it is

      Creative work law honors and presumes people's desire to share. Terms
      for the distribution of creative works presume that people will share
      and provide positive incentives to support and engage such behavior or
      they are void.

      Creative work law does not favor those who break the law over those who
      follow the law, nor those who encourage the breaking of the law over
      those who encourage others to follow the law. Similarly, Terms of
      Service do not favor those who ignore them or break them over those who
      follow them. Any such laws and terms are excessive and void.

      The State is the Champion of the Public Domain

      If we don't know otherwise, do we presume that people want to share or
      to own? We presume that people wish to allow reuse unless they make
      evident otherwise. The right to share has priority over the right to own.

      The European Union and its member states have the responsibility to
      protect property. The state's protection of property used by a wider
      group has priority over its protection of comparable property used by a
      narrower group. The state's protection of property used by all (and
      especially, the commons) has the highest priority.

      The state's responsibility to protect property is greatest for that
      which lacks a defender, protector, caretaker or steward. The state
      promotes stewardship, including individual stewardship, but especially,
      a culture of collective stewardship. The state is the champion and
      steward for a thriving Public Domain.

      The state reflects the will of all together to respect the rights of all
      separately. The state accordingly presumes, implicitly, our shared will,
      so that it might respect, explicitly, our distinct wills. The state
      defines an expansive Public Domain so that deliberate individuals may
      benefit from Copyright protection which is focused and effective.

      Public Domain has Priority over Copyright

      The European Union prepares and issues a directive that all member
      countries pass laws and amend constitutions, as needed, so that for
      creative works, the Public Domain has priority over Copyright.

      Works are creative in that they transcend the will of the author. Works
      may be partly creative, not entirely transcendent. Authors may restrict
      the use of their work by Copyright only to the extent that their work is
      NOT creative. The lack of creativity is given by the author's style as
      evident in the form of the created work.

      Works of God, nature and genius are absolutely creative. They transcend
      style. Anyone may use such works in the Public Domain if they explicitly
      regard them accordingly, free of style.

      Works of and by governments are in the Public Domain, as are documents
      of any institutions beholden to the public, the will of all together.

      Copyright works must be marked as such, using the copyright sign along
      with the year. Otherwise, they may be considered to be in the Public Domain.

      Copyright works must include or be distributed along with a reference to
      where can be found further information on the author of the work and the
      owner of the copyright, the boundaries of the work, the works it derives
      from, the scope of fair use, and how to contact the owner of the
      copyright to request additional use of the work.

      Works that derive from the Public Domain must make available, in the
      Public Domain, any works that they build on. Otherwise, they themselves
      may be used as if they were in the Public Domain, and ultimately, they
      fall into the Public Domain.

      Creative works may be explicitly placed in the Public Domain.

      Creative works can be owned or managed only by human beings, not by
      corporations or any other fictitious persons which by their nature are
      incapable of creating them.

      The Right to Change One's Mind

      Our creativity is how we transcend ourselves. Our creative culture
      depends on our completely voluntary participation and thus accomodates
      any author who wishes, at any time, for any reason, to remove their work
      from the Public Domain.

      Commercial works may leverage Public Domain materials but need to be
      prepared to negotiate with authors or stop making use of their works.

      The author who changes their mind may inform and require any and all
      owners of copies or derivatives of the work in question to negotiate
      terms of ownership or to remove all traces of the work.

      Such owners are not liable for past use of the work, but for future use
      and distribution of the work, responding within a practical timeline.

      Creative works, such as orphan works, with no apparent caretaker may be
      presumed to belong to the Public Domain until the creator asserts otherwise.

      Developing Norms and Regulations

      The European Union supports and establishes institutions that develop
      regulations and foster norms for a thriving Public Domain.

      Absolute minimum interpretations of "fair use" are established for a
      variety of practical situations, such as any publicly posted text that
      is 140 characters or less.

      Absolute maximal interpretations of "fair use" are likewise established.

      "Fair use" is defined in the most liberal way unless the creative work
      references it's own explanation of "fair use".

      Authors are presumed to grant all requests for expansive "fair use".
      Users who write to authors requesting expansive "fair use" may presume
      their request has been granted until they receive a response otherwise.

      The standard for "due diligence" in checking for authors and their
      wishes is proportional to the value of the derived works in question.

      Copyright owners of mass consumed works assume that users do abide by an
      honor system and provide them with ways for making payments (or
      micropayments) upon making copies or creating derivative works.

      Penalties for abuse of copyright are of the same order of magnitude as
      the claimant's actual losses and the defendant's gains.

      Content generated in online venues (mailing lists, wikis, blogs,
      comments) is Public Domain unless each item explicitly states otherwise.

      Website Terms of service may not be used to limit the rights of authors
      or users, whether Public Domain, Copyright or "fair use".

      Any material made publicly accessible on the Internet, may be freely
      copied and distributed further, in electronic, print or other versions,
      without restriction. Distributors may charge for such distribution as
      long as they do not exclude other distributors.

      The terms "commercial use" and "non-commercial use" are clarified so
      that "commercial use" refers simply to selling a creative work.

      A procedure exists for querying publishers whether they intend to
      reprint out-of-print works or, alternatively, whether they will allow
      others to do so under standard terms.

      A procedure exists for establishing the "authors' wishes" for works
      (like Wikipedia) with no effective author. A procedure exists by which
      such works can thereby be migrated from one license to another or the
      Public Domain.

      No license may be designed to be incompatible with the Public Domain.
      ("Share alike" licenses must not conflict with the Public Domain.)

      Separate laws address damages due to plagiarism and false claims to

      State policy

      The European Union and member states take an active approach to
      fostering the Public Domain as central to public life.

      Government funding standards and purchasing standards require that,
      wherever possible, content (such as school textbooks) be in the Public

      Government services, requirements, standards (as in education) may not
      require use of particular software but most instead define formats for
      which software can be created.

      Governments purchase works so that they enter the Public Domain and/or
      reward authors for works they've place in the Public Domain. This is the
      principal support for the arts and sciences.

      Governments may exercise "eminent domain" to purchase works at fair
      market prices and place them in the Public Domain.

      Governments prepare registries of Public Domain works built by
      volunteers and reward participants, but especially as a way of
      channeling economic stimulus monies.

      Government funds used to bail out private companies such as banks,
      automobile manufacturers, etc. are first used to increase transparency
      and openness and the public wealth, for example, making open source the
      design of cars.

      Governments champion worldwide the free flow of ideas and content just
      as they champion the free flow of trade.

      Government or insurers allows for insurance for those who use and reuse
      creative works to cover their transgressions.

      Anonymous works such as grafitti are defined as folklore in the Public

      In order to encourage an economy around the Public Domain, and voluntary
      work, in general: Money paid, in advance, for work to be done in the
      Public Domain, is not considered work for pay, thus free of any related
      taxes, Social Security payments, and other obligations. The payer of the
      money may consider such payments as a business expense if they report
      the amounts and pay a proportional tax.

      Given that "wealth is relationships", that wealth is generated by
      including people, and that contributing to the Public Domain and
      "working for free" filter in people who share and invest in the commons:
      The European Union develops a distribution mechanism to stimulate the
      growth of underdeveloped areas, such as the countryside, by issuing
      vouchers (say, 1000 euros each) to those who "work for free" and
      participate in institutions, including government, business, academia,
      to spend freely on those likewise from the target group. Such a system
      will not need reporting or monitoring.

      The European Union gives priority to local cultures so that they are not
      dominated by international cultures. A distinction is to be made between
      works in international languages (such as English) and local languages
      (such as Lithuanian) as well as languages that are not official
      languages of the European Union (such as African languages). Works
      published in the European Union in international languages may, without
      restriction or special permission, be translated into the Public Domain
      in local languages and non-European languages.

      Theoretical Foundations

      Creativity is a basic human trait and activity. The European Union
      sponsors dialogue to clarify the theoretical foundations of creative
      work and the practical consequences.

      A general theory may consider that a creative work is deliberate and not
      accidental. Deliberateness may be defined as the application of distinct
      parsers, for example, two for fair use, and three for a fully creative
      work. See "The Algebra of Copyright" by Andrius Kulikauskas,

      A general theory may define the nature of style. Copyright protection
      applies only to form, and in particular, only to style. Derived works
      for which the style of incorporated works is altered beyond recognition
      do not violate copyright.
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