Copyright laws are based on the idea that people who create creative/artistic works deserve legal protection for their expression, and need an incentive to keep creating. The theory is that creators create in order to get financial payback for creating, and also to be identified with the work in question. Authors typically want to control the use of their work and, the theory goes, prefer to place conditions on the use of the work.
Critics of the current system feel that the general public’s interests would be better served without tight restrictions over the use of works. This article attempts to shed light on the “copyleft” movement, and explain the difference between traditional copyright licensing and the newer form of “copyleft” licensing.
The Traditional Model of Copyright Licensing
Copyright holders may enter into arrangements whereby they give permission to others to use their works. This arrangement is a licensing arrangement, born out of the freedom to contract and the Copyright Act. Permission to use a copyrighted work is called a license. A traditional license to use a copyrighted work is typically given in exchange for some sort of remuneration (i.e. a royalty payment or a license fee). A traditional license agreement sets out the terms and conditions for the use of the work.
Use of a copyrighted work without the express or implied permission to do so is outside the scope of a licence and in most cases constitutes an infringement of copyright laws. Copyright infringement can lead to civil and criminal liability. A common example of infringement would be distributing a copyrighted software program over the internet without the permission of the copyright owner. Even where the software was lawfully purchased the software licence agreement will typically limit the uses of the software, i.e. to prohibit the purchaser from selling copies of the program.
Certain kinds of uses, which might otherwise be considered an infringement of copyright are allowed, if they fall into a category of use under the fair dealing exceptions of section 29 of the Copyright Act. Fair Dealing provides uses for the following purposes, without the copyright owner’s permission: private study, research, criticism, and review.
An author who wishes to relinquish all copyright protection in a work could release the work into the public domain. This means that anyone could modify the work, publish it, and sell it for profit, among other things, because the original author has relinquished control over the work. Works end up in the public domain either because the author has chosen to place them in it, or because the term for which the particular work is copyrighted has ended. (See section 6 of the Canadian Copyright Act).
The Copyleft Model
By contrast, the copyleft licensing model takes advantage of the freedom to contract, but licences rights to others without many of the same restrictions embodied within the traditional copyright model. This newer model goes by different names, including open-source licensing, free licensing, and copyleft. For the purposes of this article, we will use the term copyleft.
Copyleft, was invented by Richard Stallman in the mid-1980s, as a method of making works available for free use. The idea took shape in the software community, as Stallman established a general framework within which software could be made free and all modified and extended versions of the software would remain as such. To date, the concept has been used in other creative communities as well, to extend copyleft licensing schemes to audio, visual, video, education, and other textual works.
As copylefters in the tech community explain, the reason behind resorting to copylefting is to avoid the typical effects of placing a work within the public domain. Anytime a work is placed in the public domain, it runs the risk that people making derivative works from the original work will copyright the new work, creating proprietary and therefore exclusive work. This would defeat the entire purpose behind placing the work in the public domain.
An example of this would be a newly created computer program built upon the source code of another program, and then copyrighted to restrict the use of the new program. The author of the original work presumably would not have intended his or her work to restrict other users down the line, even if there were generations of modifications in between.
The ideology behind copylefting is expressed as follows:
Proprietary software developers use copyright to take away the users’ freedom; we use copyright to guarantee their freedom. That’s why we reverse the name, changing “copyright” into “copyleft.” [See http://www.gnu.org/licences/licences.html]
Copylefting takes advantage of the freedom to contract by making the terms of the copyleft licence conform to an enforced sharing ethic. A typical Copyleft license agreement says that anyone redistributing the software, whether or not the software has been changed, must give all future users the freedom to use, distribute, and make changes without legal recourse.
The first step in copylefting a program is to claim copyright in it. Then a term is included in the licensing agreement stating that the exact wording of the original licence must be preserved each time the software is modified and distributed. In one step, this accomplishes two things: first, it preserves the moral rights belonging to the original author, as the author’s name is included in the wording of the licence. Second, it preserves the freedoms implicit in copylefting by making the ability to make changes to the software and the software itself inseparable. No programs derived from the software in question may come without the exact original copyleft licence, or with terms revoking the original terms. In this way, the arrangement is sealed.
In addition, licensing conditions are included, requiring that all derivative software created from a copylefted work is to be made available in a form that facilitates modification. This means that the source code must be accessible to users.
In other creative communities, the legacy behind copylefting works has been preserved. The wording of the preamble to the Free Art Licence, one of the many examples of a copyleft licence, contains the following mission statement language:
The intention is to make work accessible and to authorise the use of its resources by the greatest number of people: to use it in order to increase its use, to create new conditions for creation in order to multiply the possibilities of creation, while respecting the originators in according them recognition and defending their moral rights […] Knowledge and creativity are resources which, to be true to themselves, must remain free […] This is the basic aim of this Free Art Licence: to promote and protect artistic practice freed from the rules of the market economy. [See http://artlibre.org/licence/lal/en/]
It is clear that copyright issues are at the forefront of the legal issues surrounding the internet. The control over the ways users obtain and use copyrighted works need not necessarily carry with it the restrictions contained within the traditional copyright law model. The rise of the copyleft movement is evidence of that.