A Perspective on Copyright Licenses -- Creative Commons and more

In the law in the United States, copyright ownership is considered to be personal property, just like a car or any other item the law calls personalty or chattels. In recent developments in the law, copyright and other intangible property has been generally referred to as "intellectual property." The law that has evolved concerning intellectual property is often incorrectly referred to as "intellectual property rights." Unfortunately, the term "rights" has been vastly over-used and over-extended in our system of law to the point that nearly every claim of any interest is also claimed to be a "right." 

The concept of a copyright is usually considered to date back to the British Statute of Anne in 1710. In America, the idea of a copyright was based on a series of laws that were passed prior to the establishment of the United States and the idea of a copyright was incorporated ultimately into the United States Constitution, Article 1, Section 8, Clause 8 which states,

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

As you can see the term "copyright" was not used in the Constitution's definition. Today, intellectual property law incorporates the general areas of copyright, trademarks, patents and trade secrets.  The World Intellectual Property Organization defines intellectual property (IP) as follows:

Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.

In the legal community intellectual property law represents a very narrow and poorly defined "specialty." Subsequently there are relatively few lawyers who support themselves solely from handling "intellectual property" cases. The most defined area of the intellectual property is patent law and there are a few patent law attorneys in every state, but most are concentrated in the Washington, D. C. area. From an online search it appears that there might be a dozen or so law firms in Utah that advertise that they handle intellectual property cases.

In my own experience I was one of only a few attorneys I knew about personally that had actually litigated copyright issues. Most of the online discussion about "copyright" is conducted by people who have never represented clients in a copyright case from start to finish. I have always wanted to ask those who are writing about copyright in the genealogical community if they have ever been personally involved in a copyright case other than one of their own making. It is interesting how many people have an opinion about copyright law with so little background in the subject.

Since copyright is a legally defined, personal property interest, it is subject to modification by contract. In other words, you can buy, sell, rent, license and otherwise limit your copyright claim in any way that is allowed by law. The ability to contract away all or part of your copyright is referred to in the law as a right of alienation.

You can also lose your copyright interest by ignoring its existence. Ultimately, the only way to protect your copyright interest in the United States is to file a lawsuit in the Federal District Court system. As witnessed by the recent case of the Authors Guild, Inc. v. Google, Inc., copyright litigation can be immensely time consuming and expensive. Just for your interest, here is the complete heading of the Google case.

THE AUTHORS GUILD, BETTY MILES, JIM BOUTON, JOSEPH GOULDEN, individually and on behalf of all others similarly situated, Plaintiff-Appellants, HERBERT MITGANG, DANIEL HOFFMAN, individually and on behalf of all others similarly situated, PAUL DICKSON, THE MCGRAW-HILL COMPANIES, INC., PEARSON EDUCATION, INC., SIMON & SCHUSTER, INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., CANADIAN STANDARD ASSOCIATION, JOHN WILEY & SONS, INC., individually and on behalf of all others similarly situated, Plaintiffs, v. GOOGLE, INC., Defendant-Appellee. 

Here is a list of the attorneys in the case:

For Plaintiff-Appellants: PAUL M. SMITH, JENNER & BLOCK LLP, WASHINGTON, DC (Edward H. Rosenthal, Jeremy S. Goldman, Anna Kadyshevich, Andrew D. Jacobs, Frankfurt Kurnit Klein & Selz PC, New York, NY on the brief) 

For Defendant-Appellee: SETH P. WAXMAN, WILMER CUTLER PICKERING HALE AND DORR LLP, WASHINGTON, D.C. (Louis R. Cohen, Daniel P. Kearney, Jr., Weili J. Shaw, Wilmer Cutler Pickering Hale and Dorr LLP, Washington D.C & Daralyn J. Durie, Joseph C. Gratz, Durie Tangri LLP, San Francisco, CA on the brief) 

 Since copyright is a property interest and since it can be alienated in part or in whole, several organized schemes have been developed to regulate the granting of limited copyright interests. The most well-known and used of these schemes is the Creative Commons. This international organization has developed a highly useful and workable way to license copyright interests. From the lack of discussion on this topic, I assume very few of the genealogists who have concerns about their "copyright interests" have studied the alternatives. I seldom see genealogical works licensed under the Creative Commons. I strongly suggest that anyone with a concern about copyright become very familiar with the Creative Commons. Personally, I am very careful to observe the conditions of any of the licenses.

The other well-known licensing system is the GNU Operating System sponsored by the Free Software Foundation. Since the GNU Operating System applies primarily to software, it is not usually mentioned in genealogical circles.

I am not going to try to explain the limitations or advantages of either system. If you really want to know about copyright, you need to understand the options for licensing. By the way, if you go to an "intellectual property attorney" for advice, you just might want to ask him or her to explain the Creative Commons, if they don't seem to know what you are asking about, you might reconsider their qualifications. Of course, I am not presently, nor do I want to be, a practicing attorney in any state of the United States and everything in this post is my opinion and should not be construed as legal advice for any purpose and you are most welcome to correct or disagree with me anytime. I am perfectly accustomed to being told I am wrong.