FOSS Open Content/Emergence of the Open Content Paradigm

In response to the excesses of copyright system, there has been a need for strong alternatives. The FOSS movement was perhaps one of the first to articulate such an alternative in a formal manner. While phrases such as "Free Software" and "copyleft" conjure up an image of alternatives to copyright, it is relevant to note that FOSS is not a model that abandons copyright. In fact, quite the opposite, it relies on copyright law, but users it creatively to articulate a positive, rather than a negative rights discourse. What does a positive rights framework mean? As we have seen, copyright has traditionally been an exclusive right that is granted to the owner of copyright to exploit his / her work.

Copyright is usually thought of as a bundle of rights that are available to the owner, and these are:


 * Reproduction rights: the right to reproduce copies of the work (for example, making copies of a book from a manuscript).
 * Adaptation rights: the right to produce derivative works based on the copyrighted work (for example, creating a film based on a book).
 * Distribution rights: the right to distribute copies of the work (for example, circulating the book in bookshops).
 * Performance rights: the right to perform the copyrighted work publicly, (for example, having a reading of the book or a dramatic performance of a play).
 * Display rights: the right to display the copyrighted work publicly (for example, showing a film or work of art).

Another important dimension is that there are no procedural requirements for obtaining copyright; it vests automatically with the creator the moment the work has been created and fixed in some tangible form. This can be a very serious problem. For instance, suppose that I have made a useful graphic file and posted it on the Internet. Even if I do not object to having the file downloaded and used for any purposes, such as including it in a teaching pack or on a homepage, the law of copyright is such that someone who uses the graphic without my permission would be infringing my copyright.

It may be that I choose not to prosecute them, but what has effectively happened is that the rule of exclusion has become the default rule in copyright. We have effectively moved away from a time when everything was presumed to be in the public domain unless otherwise stated, to a system where everything is presumed to be protected unless otherwise stated.

Licenses and the Control of Copyright
At this point, it is useful to return to the story of the extension of copyright law. Given the fact that copyright includes so many rights, it basically becomes impossible for any person to use another's work without running into the danger of being an "infringer." Thus, one needs to obtain a license from the owner of copyright to use any portion of the work. A license in copyright law is basically the grant of a right by the owner of copyright which allows the recipient of the license, the licensee, to exercise certain rights with respect to the copyright work. Without this license, any use not granted by copyright by default would be considered an infringement.

Derived from the Latin word licere, "to allow," license literally means "permission." Theoretically, a license can only permit things that copyright law places under the provision of the copyright owner and does not already permit by default. A license can thus only allow more, not less than, the default copyright regulations. FOSS and Open Content licenses, therefore, are licenses in the proper sense of the word. Proprietary software licenses, however, are even more restrictive than default copyright regulation.

How is it possible that such a "license" is not a permission, but imposes additional restrictions? The catch lies in the term "license agreement", which shifts the whole matter from copyright to contract law. By making users click on a box signifying their agreement to the terms of the license agreement, software vendors make you sigh a usage contract with them, thus circumventing even the scarce "fair use" liberties granted by copyright law (such as public lending of works in libraries).

As Pamela Samuelson notes:

''Software is not the first time that they have attempted to restrict user rights via a license, and even book publishers have attempted to do so. Book publishers and sound recording companies once tried to restrict what purchasers of their products could do with they by "licenses", but fortunately the courts didn't let them get away with it. (Take a look at an old Victoria recording jacket and you'll see that it purports to license use of the recording to one Victoria machien and to deny authority to retransfer one's copy of the recording.) One important case was Bobbs-Merrill vs Straus. Bobbs-Merrill sued Straus because he sold copies of bobbs-Merrill books in violation of a license restriction that conditioned the right to retransfer copies of the books on an agreement to charge at least US$1 per copy. The US Supreme Court treated the license restriction as ineffective as a matter of copyright policy. The Bobbs-Merrill decision contributed to the emergence of the "first sale" or "exhaustion of rights" doctrine in copyright law, under which publishers lose authority to control redistributions of copies of their works when, in commercial reality, the transaction is a sale. In the aftermath of this and similar cases, publishers and sound recording companies abandoned these overly restrictive practices.''

The GNU General Public License
It is within this highly rigid regime of copyright that the Free Software movement sought to make an intervention. As a result, it has become highly popular across the world, and has become an inspiration for similar licensing models beyond the world of software. While the traditional software license specifically denies certain rights, the GNU General Public License is a license that is designed to grant certain fundamental freedoms. These are:


 * Users should be allowed to run the software for any purpose.
 * Users should be able to closely examine and study the software and should be able to freely modify and improve it to better serve their needs.
 * Users should be able to give copies of the software to other people to whom the software will be useful.
 * Users should be able to freely distribute their improvements for the benefit of the broader public.

The Free Software model differs drastically from the "closed source" principles of licensing. Why then do we say that the GNU GPL model is based on an innovative use, rather than an abandonment of copyright? The Free Software model is predicated on ensuring that the fundamental freedoms are not taken away or removed from the public domain by anyone; thus, there is a condition attached to the use of Free Software.

The fundamental condition is that any person who uses Free Software to create a derivative work, or an adaptation of the software, must ensure that this software is also licensed on the same terms and conditions, namely under the GNU GPL. If the author of a piece of Free Software decided to relinquish his copyright, it would mean that someone could use his or her code and create a derivative work and then license it as a proprietary piece of code, therefore preventing others from making use of the software in a free manner.

Challenges to Copyright
What the Free Software movement did was to use copyright in an innovative manner to ensure access rather than restrict people's ability to use, distribute and modify code.

At the heart of the Free Software movement lies a radical reworking of the very idea of the user. While in the realm of proprietary software, the user was a passive consumer, the Free Software model is based on the idea of the user as producer - a user who has the ability to contribute to the existing work and simultaneously become a producer as well. Copying, cutting and pasting, changing things, applying filters, and so on are part of the basic language of digital media. The user-producer concept speaks to he digital experience and the freedoms that this digital culture allows for ordinary people to become artists and producers. This model fundamentally challenges the traditional assumptions of copyright law. It moves away from the romantic notion of authorship which saw cultural production as an isolated activity carried out by a solitary genius creating something out of nothing. Instead, it argues that the very essence of cultural production has been about learning by creatively using works that exist in the public domain. It also moves away from the mythical notion of the originality of the work to recognize the value that various users contribute through their modifications and adaptations to an existing work, thus placing a higher premium on collaborative rather than isolated production.

The Open Content model also brings into place a community of givers and receivers who see themselves as linked within chains of reciprocity. So, while the formal trappings of the exclusivity of property may not exist, this does not mean that the social norms and etiquette governing relationships of creation and use within Open Content communities do not exist. The gift economy may, therefore, be a useful way of characterizing relations in Open Content projects. The gift is a fascinating phenomenon marked by complex relationships of reciprocities, and the idea that there is no such thing as a free gift is true, though not in the monetary sense of the term. The giving and taking of a gift sets in chain a complex relationship of reciprocity, where a gift transaction is always incomplete until the person receiving the gift has also given the gift back. While the relationship of reciprocity may be between the gift giver and the gift taker, it is certainly not restricted only to them. The exchange of the gift actually brings into play an economy of circulation, which includes a wider network of participation by members of the community.

The Raqs Media Collective says that:

''The gift is something freely given, and taken, as in free code. Gift givers and gift takers are bound in networks of random or pre-meditated acts of symbolic exchange. The code begets the gift as the form of its own survival over time. In this way a gift is a quiet meme. Reciprocity begets reciprocity. The principle of the gift demands that the things being given be price-less, in other words so valuable as to be impossibe to quantify in terms of the possibilities of abstract generalized exchange.''

What was unique about the FOSS model was that it used the copyright regime for the first time to express this aspect of collaborative production, and also afford it protection to ensure that it remained within the public domain. Having gotten rid of the heavy burden of the myth of copyright, the challenge was then to translate the terms of the GNU GPL into other models of creative licensing would enable people to ct as collaborators / producers rather than merely as passive users, and also ensure that there is a rich public domain of materials that people can use and build on for the future.

rather than the 119-volume one]. † Number of encyclopedic articles.The Nationalencyklopedin contains a total of 356,000 entries. ‡ Kister, op. cit., p. 365. § Advertised as containing “over 63,000 articles, with 36,000-plus map locations and over 29,000 editor-approved website links.” The 2006 Premium CD-ROM had 68,000 articles.
 * Kenneth F. Kister, Kister's best encyclopedias: a comparative guide to general and specialized encyclopedias, (1994) p. 450. [Article count is for the 82-volume edition,
 * Includes 10,000 historical archives.

It is important to note that the Wikipedia has also answered one of the usual criticisms against Open Content projects, namely, the question of the reliability of the information of knowledge that is produced. The journal Nature compared science articles from Wikipedia to the gold standard of the Encyclopædia Britannica and concluded that "the difference in accuracy was not particularly great."

The Public Domain
We have been using the idea of the public domain. What exactly do we mean by that? For the purposes of understanding cultural production, the public domain could be understood as the body of works to which we have access to create newer works. Thus, while Shakespeare was a brilliant playwright, we should also remember the fact that he drew rather liberally from various sources, from history, mythology and the works of his peers, etc. as inspiration and as sources to modify. Similarly, even Walt Disney had a rich variety of sources from which he could draw from to make his cartoon versions of Fantasia, Steamboat Willie, Snow White and the Seven Dwarfs, etc. This public domain has also often been referred to through the metaphor of the "commons" - resources that are not divided into individual bits of property but rather are jointly held so that anyone may use them without special permission. Think of public streets, parks, waterways, outer space, and creative works in the public domain - all of these things are, in a way, sub-set of the commons.

Open/Collaborative Production and its Advantages
It is as a response to the shrinking of the public domain through stronger enforcement of copyright laws that the FOSS and Open Content movements have emerged. What are some of the benefits of licensing works on an Open Content model rather than relying on the traditional copyright model? There may be a number of reasons and advantages for wanting to do so.


 * For most artists, musicians or designers who are not already established, the easiest way to make a name for yourself is by ensuring that your work is sen by a large number of people, and by a wide range of audiences, as this helps to popularize your work, and establish your reputation. Open Content licenses enable your work to circulate in a much wider manner than if there were restrictions on the work. Apart from making you more visible, this model of distribution also enables you to obtain more shows, more work, sponsorship, etc. The English music group Thermal and a Quarter based in Bangalore, for instance, have made their albums available online for people to download, to enable their fans to listen to them and attend more of their shows.
 * Since the model of distribution relies, more often than not on a P2P system of sharing, it cuts out significant costs in terms of a middleman, an agent or a gallery who act as distributors. This is a system in which people can often contact the content creator directly rather than having to go through an institution of an individual who mediates on their behalf. Often creators who are struggling to establish themselves have no bargaining power with publishers, record companies, etc. since they do not have the ability to distribute on their own. The Open Content model, combined with the powers of the internet, is a great way for someone to establish themselves without having to rely on the big business model of authors and artists.
 * The value of value - added distribution: One of the major advantages of using an Open Content model arises when you are looking at the distribution process not merely as the distribution of a final end product but also as a way of harnessing extra support and labour in projects which require, for instance, value-added contributions. An instance of this is "Distributed Proofreading." Originally unaffiliated with Project Gutenberg, the site is devoted to proofing Project Gutenberg e-texts more efficiently by distributing the volunteer proofreading function in smaller and more information - rich modules.
 * More often than not, people do not create content only for monetary reasons. They do it to express themselves, to share their works, to get an idea across, etc. In such cases, by licensing the work through an Open Content license, you have the ability to reach out to a much larger group of people as people can freely use your work, and distribute your work without the fear of violating your copyright.
 * But leaving aside the romance of altruism, assuming that you do want to make money out of your work, it is important to remember that Free / Open Content is not inconsistent with the abiliy for you to charge for your work. The licensing model allows enough flexibility for you to determine the manner in which you will license the use of your work. For instance, while you may allow for academic uses and other not-for-profit use (or even charge for them), you could reserve the right to any commercial usage (such as distributing copies of a book for sale, or using a design on a t-shirt or website). Thus, you will still be able to charge for such usage.
 * There are also cases of relatively unknown part-time musicians such as Allan Vilhan from Slovakia, working under the name Cargo Cult, who made his group's music available online for free and receives donations from people who have enjoyed the music (this and many similar stories are available at the Creative Commons website, http://creativecommons.org).
 * The Internet model of distribution may seem like a disaster for large content companies or already-established artists (even that is contestable), but for emerging artists or creators who do not hve access to a great deal of capital investment, the Internet is truly a god-send in terms of its ability to reach out to a large number of people at a relatively low cost.
 * There have been some recent examples of how people make their works available for free online, and yet this has not affected their offline sales. Science fiction author Cory Doctorow took advantage of this trend when he released an online version of his book, Down and Out in the Magic Kingdom simultaneously with a print version of the book. The print version has done very well; in fact, it could even be argued that the print version has sold better as a result of the book having been distributed for free. This is very similar to allowing people to browse through a book in a shop before they decide whether they want to buy it.
 * More and more people are realizing the value of collaborative content creation. By making their works available not only to a larger community of users but also a larger community of creators, they also realize that there is a value that is added to their work. Most Open Content licenses demand a detailed recording of the process of authorship, and every use of your work is also at the same time a record of your authorship. There is therefore a very significant attempt to move away from the binaries of originals and copies, to the idea of a rescension, a version or a re-mix that is neither a copy nor an original but instead a work that builds on existing work and yet has an autonomy of its own.


 * Some people may want to use the open licenses model for distributing their content simply because they are tired of the monopoly of the content industry and the limitations of the system of copyright. Thus, the idea of being able to contribute to an intellectual commons may seem highly attractive. Some people may be attracted by the notion of others building upon their work, or by the prospect of contributing to an intellectual commons.
 * This idealism has not only inflicted young people who are used to an age of access, but even established stars like George Michael, who recently announced that he was not going to produce any commercial music in the future and that all of his music in the future will be available for free via the Internet.
 * Very often, we forget that a lot of content owners - especially those in the world of academia or artists who benefit from endorsement grants from public bodies - are actually producing intellectual property using public resources. In such case, it is important for us to start thinking in terms of "public intellectual property for public money."

[TOC]