More Comics About Copyright

from the jolly-roger dept

Thu, Oct 7th 2010 4:17am — Mike Masnick

We recently wrote about how James Boyle, along with two other law professors, was putting together a comic book about copyright. It looks some others are thinking along the same lines (and, nicely, using Boyle's recent book as part of their inspiration). Someone sent over a link to the Jolly Roger comic book, which goes through the history of copyright in about 60 pages. Apparently, the original comic was in French, but this version has been translated to English. It highlights how copyright originally had nothing to do with artist's rights, but was initially a tool for royal censorship via printers and publishers. It highlights how copyright changed over time, and (obviously) spends lots of time on more recent happenings in the copyright world:

It discusses things like ACTA as well:

And even goes on to discuss how these same issues are playing out not just in copyright, but in many other areas concerning censorship and user rights as well:

Anyway, at 60 pages, it's definitely a pretty quick read. It's available in a web version as well as two ebook versions. My only issues with it are that I think it still focuses too much on the whole idea that copyright is about balance. As I've said in the past, it would only be about balance if it were a zero-sum game, but the evidence suggests that content is a non-zero sum game, and it's possible to look for ways to benefit everyone, rather than looking for trade-offs. Separately, while it's great that they're using a Creative Commons license, I'm a bit disappointed that they've gone with a "non-commercial" license, which can be problematic. In fact, because of the "noncommercial" part, I hesitated about posting this story. After all, we are a commercial site, and I wanted to make sure to include some images, but technically I might be violating their CC license, and that seemed like too much trouble. However, in reading the comic, I felt that it's probably okay for me to discuss the comic in this matter... but just the fact that I had to consider it, and even thought about not posting it should, again, suggest why such licenses barring non-commercial use can cause more trouble than they're worth.

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Filed Under: comics, copyright, culture

34 Comments

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cc (profile), 7 Oct 2010 @ 4:39am

"because of the "noncommercial" part, I hesitated about posting this story. After all, we are a commercial site, and I wanted to make sure to include some images, but technically I might be violating their CC license"

Hmm.. CC licenses are based on traditional copyright, so all fair use exceptions that apply to copyright automatically apply to CC licenses as well.
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Richard (profile), 7 Oct 2010 @ 5:22am

Commercial Use
Commercial use needs to be more tightly defined - perhaps there should be several levels of commercial use? I can imagine that many users of cc licenses wouldn't really object to reposting of extracts (even substantial extracts - beyond fair use limits) on an ad supported site but might object to direct commercial sales of complete physical books.

I know that cc licenses can be problematic - but they are better than the alternative. Their existence does enable many who would otherwise go for a straight "all rights reserved" to dip their toes into something a bit freer.
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Michael, 7 Oct 2010 @ 5:29am

Re:
Sure, but who wants to get sued so they can use the fair use defense?
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Steve R. (profile), 7 Oct 2010 @ 5:38am

Balance is Expansive
The "problem" with balance is that if someone takes an extreme point of view the fulcrum point can progressively move unreasonably in their direction. For example, some people have advocated that copyright privilege should not expire. The subsequent "balance" is the life of the author plus seventy years. Illustrating the progressive move of the fulcrum; Tom Bell wrote the following: "The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term (subject to certain conditions) of fourteen years. The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection. Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years. The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years. Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years." Quite a difference from the original fourteen year period authorized in 1790.

While times and circumstances change, we still need to look back at the original intent of copyright and patent law to determine an appropriate "balance" based on that philosophy, not the bastardized "balance" of today.
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Greevar (profile), 7 Oct 2010 @ 6:05am

Balance? I don't see any possible balance.
There can't be any balance in a copyright law. The very core of how a copyright works is completely against any semblance of balance. Copyright law is at conflict with our natural rights to freedom of speech and sharing of ideas. If "all men are created equal" why do some people have more right over speech than others? Any true balance would involve allowing creators freedom to express ideas and the people's freedom to share those expressions of ideas. Everything in the copyright law should be repealed save for one measure: giving credit to creators whose works you've adapted. That is the single point I would strongly support in a new copyright law.
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Richard (profile), 7 Oct 2010 @ 6:09am

Re: Balance is Expansive
Yes - and a good example of this was the recent attempt to increase EU sound copyright from 50 to 95 years. The "agreed compromise" was 70 years - (thankfully the whole thing seems to have run into the sand at present - but I guess it'll be back soon). Of course - once they've got their 70 they'l start lobbying for 110 and "compromise" at 95...
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NullOp, 7 Oct 2010 @ 6:15am

Revenge
EVERYONE should make copies of all their music and give it away! Millions and millions of illegal CDs floating around! T'would be a wonderful thing.
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Richard (profile), 7 Oct 2010 @ 6:24am

Re: Balance? I don't see any possible balance.
Everything in the copyright law should be repealed save for one measure: giving credit to creators whose works you've adapted. That is the single point I would strongly support in a new copyright law.

To which I would add the retention of copyright in unpublished works - as long as they remain unpublished and the authors remain alive. This is necessary to back up contractual arrangements in commissioned work.

This would make copyright an "all or nothing" right. In other words if you have a copy and have acquired it legally and have settled all debts in relation to it then you can re-copy or re-distribute without hindrance.

However if you break into my house (or into my wifi connection) and copy my documents off my computer then that is still infringement. Similarly if a digital work is commissioned by a company, supplied on approval pending payment - and the company goes bust before paying for the work, any copying of the work by the receivers or those who acquire the physical assets of the company would also be infringement.
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Anonymous Coward, 7 Oct 2010 @ 7:01am

Cathy aside, comics are supposed to be funny, right?
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Marcus Carab (profile), 7 Oct 2010 @ 7:02am

Re:
Some people aren't only worried about being sued. I've always gotten the impression that Mike takes creators' rights claims very seriously, even when he disagrees with them or thinks they are shortsighted.
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Anonymous Coward, 7 Oct 2010 @ 7:11am

Re: funny comics (post #9)
No, despite the name, modern comics are frequently (and intentionally) not funny. Think about the newest Batman movie you've probably seen, it wasn't a comedy, and the books it's based on aren't either. Some comics are action, some are drama, some are used as a medium to communicate a social or intellectual message, some are used to sell pictures of women with extremely large bosoms. It's just a medium like print or film or audio file, people can put whatever content in it they like.
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jduhls, 7 Oct 2010 @ 7:14am

hesitant?
"but just the fact that I had to consider it, and even thought about not posting it should, again, suggest why such licenses barring non-commercial use can cause more trouble than they're worth."

Um, don't you have to just contact the artist and ask them? And in this age of instant communication with any other human being via email, IM, the twitter, or FaceFart, that shouldn't be too hard, right? And you get to talk to the artist. Is there something I don't understand about the actual workflow in this situation?
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iamtheky (profile), 7 Oct 2010 @ 7:28am

"non-commercial" license does not preclude nor have any bearing at all on the fair use of the work, having an internal battle weighing the two seems false at best.
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Karl (profile), 7 Oct 2010 @ 7:32am

Re: hesitant?
Um, don't you have to just contact the artist and ask them?

And if the artist said "no?" Or wanted Techdirt to pay him to write about the comic?

...But, in this case, Techdirt's use clearly falls under fair use. So, the only reason to not include is is as a show of good faith with the artist... But that's not really dependent on the license.

I'm also a bit surprised at the -NC license. I guess the comic artist plans on making money through licensing? That's really the only reason to use -NC.
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Karl (profile), 7 Oct 2010 @ 7:33am

Re: Re: hesitant?
Um, "not to include it."
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Karl (profile), 7 Oct 2010 @ 7:37am

Re: Re: Balance? I don't see any possible balance.
To which I would add the retention of copyright in unpublished works

Unpublished works should be protected under privacy laws. Copyright applies to works that are already published.

If that weren't the case, then a company could "steal" an unpublished song, simply by paying the statutory royalty fees.
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out_of_the_blue, 7 Oct 2010 @ 7:39am

Problematic? -- Why not just *ask* permission by email?
If you want to run the story and are at all concerned by exact license terms. Seems a reasonable balance, and I'm willing to bet that the permission process would take about ten minutes total between two people: May I use this to support my views on copyright? Commercial site, but I'll derive no income *directly* from such use. --- Sure, go ahead.

[Hmm. I see now that I repeat comments. Consider this for emphasis.)
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out_of_the_blue, 7 Oct 2010 @ 7:50am

Re: Re: hesitant?
@ Karl: "And if the artist said "no?" Or wanted Techdirt to pay him to write about the comic?" -- Then you don't run the piece. I'd think it wise to remove that uncertainty.

"I'm also a bit surprised at the -NC license. I guess the comic artist plans on making money through licensing? That's really the only reason to use -NC." -- NO, the reasoning behind -NC, as I regard it but I think general, is to make a *gift* to the public at large, but to prevent *grifters* from getting totally unearned income from your gift. That's quite a large point, but if your focus is solely on greed and getting *money*, and you've no conception of psychic rewards from such generosity, then I doubt you'll grasp the purpose of -NC.
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Marcus Carab (profile), 7 Oct 2010 @ 8:00am

Re: hesitant?
I'm not entirely clear on the law here, but as far as I know once a creator has licensed something under a binding contract like CC, they can't simply handwave those terms away on a case-by-case basis. I doubt that mere verbal/casual-email permission would override the terms of the CC-NC -- they would probably need to draft and sign an additional commercial license specifically for Techdirt.
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Dark Helmet (profile), 7 Oct 2010 @ 8:11am

Hmmm...
Is that an Eye of Horus symbol I see on the podium?
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Crosbie Fitch (profile), 7 Oct 2010 @ 8:14am

Discussion of the NC issue elsewhere
I blogged this here: Hard about for Hårda Bud, Nina Paley!.

It was also blogged at p2pnet here: Jolly Roger: copyright in cyberspace.

Note that the artist discusses the use of CC-NC in the comments.
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Crosbie Fitch (profile), 7 Oct 2010 @ 8:59am

Re:
Have you heard of Righthaven?

You do realise that fair use is something a judge decides as a valid defence in court - after the litigation, after you've refused to settle, after you've appointed expensive lawyers to represent you in court, after it has been demonstrated that infringement has indeed occurred, that you are the infringer, etc.
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Karl (profile), 7 Oct 2010 @ 9:02am

Re: Re: Re: hesitant?
Then you don't run the piece.

You don't see any potential problems with this? Prior restraint of free expression, perhaps?

the reasoning behind -NC, as I regard it but I think general, is to make a *gift* to the public at large, but to prevent *grifters* from getting totally unearned income from your gift.

So, anyone who wants to make money is a "grifter?" I'm not sure I buy that.

If you're concerned about commercial entities "locking up" your content, a ShareAlike license works perfectly well. The GPL is kind of like that - anyone is free to use GPL software, even for commercial use, but the software itself must remain libre.

If the comic was released under a ShareAlike license, Techdirt's use would be perfectly acceptable, since the content of Techdirt is released as public domain (as much as is possible). But since Techdirt is a commercial entity, they would be disallowed from reprinting the comic, even though the comic isn't being locked away from public use.

...That's assuming it wasn't fair use, which it is.

Now, I understand (and support) the idea that if a company makes money from someone's labor, the laborer has a right to ask for compensation. In regards to copyright, "compensation" means licensing.

So, like I said, the only rational reason to use a NonCommercial license is if you plan on licensing your content. But I don't think the comic creator intends to do this, so I don't know why he would use -NC.

Especially not if the comic truly is a "gift" to the public. You don't expect to get paid for giving gifts.
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Karl (profile), 7 Oct 2010 @ 9:12am

Re: Re: hesitant?
as I know once a creator has licensed something under a binding contract like CC, they can't simply handwave those terms away on a case-by-case basis.

Yes, they can. Creative Commons licenses are non-exclusive, so you can grant a commercial license to whoever you like, even if the content is released as -NC.

From the Creative Commons FAQ:

One final thing you should understand about Creative Commons licenses is that they are all non-exclusive. This means that you can permit the general public to use your work under a Creative Commons license and then enter into a separate and different non-exclusive license with someone else, for example, in exchange for money.
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Crosbie Fitch (profile), 7 Oct 2010 @ 9:53am

Re: Discussion of the NC issue elsewhere
Sorry, the link to the artist's discussion is here: http://www.p2pnet.net/story/44401#comments
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Marcus Carab (profile), 7 Oct 2010 @ 12:02pm

Re: Re: Re: hesitant?
Absolutely. But would simple verbal permission constitute a "separate and different non-exclusive license"? Or would you require something more robust?

...And even if you do have the legal ability to grant such permission, would large & lawsuit-timid publishers go ahead based only on that? Or would they insist on more firm assurances that they weren't in violation of the CC?

Anyway like I said I'm not entirely clear on this so maybe I'm way off-base - but I do know that publishers usually want their licenses clear-cut and set-in-stone before they start reproducing something.
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Marcus Carab (profile), 7 Oct 2010 @ 12:04pm

Re: Hmmm...
I thought you of all people would know that the entire comic book medium is a Masonic conspiracy!
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The Groove Tiger (profile), 7 Oct 2010 @ 4:13pm

Re: Revenge
Why would anyone want deadly plastic discs flying around?

Just download the damn thing.
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H�rda Bud, 8 Oct 2010 @ 3:17am

Thanks
Thank you for the article. I am very glad you wrote this in spite of the NC problem. As Crosbie Fitch says we have had a discussion about this. And he, and others of his opinion, convinced me this was the wrong way to go. And this article illustrates very well what he meant. I will change the licensing but have not decided yet to what.

I just wonder: Don't you ever write about copyrighted material?
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Richard (profile), 8 Oct 2010 @ 8:28am

Re: Re: Re: Balance? I don't see any possible balance.
Privacy laws don't cover my second example - breach of contract maybe would - but leaves you as an unsecured creditor. At present copyright laws give the victim of a default a much stronger weapon (I know - I've used it myself)
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Crosbie Fitch (profile), 8 Oct 2010 @ 8:47am

Re: Re: Re: Re: Balance? I don't see any possible balance.
Contract is about exchange, not about binding another to silence or non-disclosure.

One needs law to secure what we can all recognise as an author's exclusive right to their writings - not a monopoly.

So, yes, intellectual work must be properly and rightly recognised as intellectual property - in order that it can be exchanged (for money).

What has to disappear is the 18th century infatuation that a reproduction monopoly is also deserved.

Once intellectual works are properly recognised as property, contract governs their exchange (without impinging upon anyone's rights, free speech, etc.). So intellectual property law is still needed, even if copyright is abolished. This is why I have arguments with those who would not only abolish copyright and patent, but would also argue against the recognition of intellectual property entirely (the argument that if a burglar steals a copy of your work, or a client rejects your work, but has retained a copy, you haven't lost anything so have no grievance).
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Anonymous Coward, 8 Oct 2010 @ 11:05am

Re: Balance? I don't see any possible balance.
Everything in the copyright law should be repealed save for one measure: giving credit to creators whose works you've adapted. That is the single point I would strongly support in a new copyright law.

I couldn't help but notice that you failed to give credit to the creators of the words that you used in your comment.
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Karl (profile), 8 Oct 2010 @ 12:19pm

Re: Re: Re: Re: hesitant?
would simple verbal permission constitute a "separate and different non-exclusive license"?

It depends upon the company and the use. But I'm sure the company would require whatever paperwork it would require for a non-CC license. If verbal permission is OK to print a non-CC-licensed photo (for example), then it would be OK here.

I do know that publishers usually want their licenses clear-cut and set-in-stone before they start reproducing something.

In this respect, a NonCommercial license isn't any different than the default copyright license ("all rights reserved").

If they get the artist's permission, it doesn't matter whether they are in the violation of the CC license or not. The publisher's license is completely separate from the CC license.

The artist and business can enter into whatever agreement they want, and do whatever they want with the content. But the only thing they can't do is prevent others from using the content under the terms of the CC license.
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jduhls, 11 Oct 2010 @ 8:19am

Re: Re: hesitant?
"And if the artist said "no?" Or wanted Techdirt to pay him to write about the comic?"

...then the artist doesn't get publicity. I might consider saying "no" to people, organizations, business, etc, that I don't like or that I have ethical disagreements with. What if the artist doesn't want to ethically "sell out" or something? Isn't it about deciding WHO can profit from your work? I'm still confused why -NC would NOT be a logical option. But I am also not very smart. ;-)
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