I’m an implementer, tool builder, technologist; but that shall not preclude me from working on the human system side as well. Sometimes some of our tools will process data that happen to be human expressions. Today, whatever capability the tool might provide and if it is the most amazing ever imaginable, there can’t be any hope of meaningful improvement on the tool or human system side in such cases as copyright law can easily render it completely void. There’s much to write about the damage the print-era copyright law does to the digital world, but even the hypertext community seems to not care at all about the human system side in that respect. It’s no coincidence that we have no other choice than starting from scratch with our poor attempts to build another new hypertext system as most of the earlier work is unavailable, unusable or lost for legal reasons and I’m not aware of a single theoretical work that wasn’t published under the traditional publishing paradigm. Sure, the general availability of digital computers and networks are a fairly new development (we remember a time in our lives where there weren’t any), so the early computer/network pioneers didn’t have to deal with this issue as the technology itself built by them has no inherent recognition or support for copyright law that was designed to regulate the publishing industry. Even with our recent attempts, I have no legal permission to use anything published on jrnl.global except my own stuff. There’s absolutely no point in developing collaborative hypertext capabilities like a shared journal if we lack the most basic human system side policies that make it shared. There’s absolutely no point in curating work if it can disintegrate or disappear at any time. I don’t need the submissions to an institute to hold a monolog. What follows is a practical description of how copyright prevents collaboration.
For my Personal Hypertext Report #6, I made a screenshot image that contains portions of Frode Hegland’s “jrnl launch meeting announcement (for Friday 24th of August 2018)” text. As the report primiarly covers actual issues of the existing posts on jrnl.global, it made sense to not only publish/distribute it via my own dedicated machine, but also to submit it to the FTI jrnl under Frode’s control. Sure, such practice is totally stupid because we don’t have a capability yet for both copies to share the same canonical identity, but what else do you do as long as nobody is working on such capabilities yet? So for the screenshot on the jrnl under Frode’s control, there is no legal problem because in the process of submitting, I gave permission to Frode to distribute my contribution to the screenshot, while Frode already has the permission to distribute his own contribution to the screenshot of course. Now, I also want to distribute the screenshot including Frodes contributions to it myself, be it via the dedicated machine(s) under my own control or in print, for which I need Frode’s permission, and that’s not only for me personally. Furthermore, I want to invite my visitors/readers/users to distribute my part of the work as well (for backup/posterity reasons), to create derived works, to distribute the derived works and to use all of that for whatever purpose (the four essential freedoms of libre-licensing). As the screenshot can’t be separated into Frode’s contribution and mine without disintegrating or destroying it, it’s up to Frode to consent or object to my plan of giving everybody blanket legal permission to do their own computing, reception, curation and publishing in freedom, sovereignty and independence as the technology easily enables them to – so I intend to remove the legal prevention and risk as from realizing the full potential of what digital can offer. Therefore, a non-transferable permit limited to me personally wouldn’t do.
I could argue that the screenshot is a new work/interpretation with its own new copyright to me as the original author. If so, I would license it under the GNU Affero General Public License 3 + any later version (without having really investigated what it means for works that aren’t software) and also the Creative Commons Attribution-ShareAlike 4.0 International (despite it doesn’t have a trusted path of upgradability). Why do I pick these two licenses? Simply by looking around which ones are most protective of users rights/freedoms, what features they offer in service to that. These licenses are not perfect, but the best we can do for now without violating the law, as we can’t change it nor afford to ignore it.
But did I obtain rights myself, is there enough that statisfies the threshold required to become copyrightable? It could be the composition, I also draw the rectangles, but then, the output of my converter isn’t copyrightable as it was generated by a machine and not a human. Then, making an image of it in a particular way/composition might render it copyrightable again, but I didn’t change the program output, so it’s probably not enough creative expression of my own. Can I obtain rights similar to reproduction photography that makes a photo from an old Public Domain painting in the museum and get copyright on the basis of “creative arrangement” ending 70 years after the death of the photographer? In contrast to photography, I can’t creatively influence the capturing process of the screenshot function as standardized by the operating system. On the other hand, I positioned the two windows carefully and also cut it to a certain detail subframe, something that reproduction photography might not be allowed to do as it’s supposed to reproduce the original truthfully.
What if the screenshot would turn out to be a combined, collaborative work? That’s usually the case if several authors work together in creating a shared result for which the individual contributions are hard or impossible to determine afterwards. Now, Frode and I didn’t work together in arranging the screenshot, but Frode’s contribution in form of the text is clearly identifiable, so did we both earn copyright for the new, combined work? What about the UI elements that are visible from the text editor and WordPress, are their UI layout design portions (as used) covered by copyright and would I need to ask for permission to publish the screenshot? If so, we all would have to agree on licensing in order to not block each other from using the result ourselves. If we fail to agree on licenses or one of us changes his mind at any point in time and fails to convince the others, and it makes no sense or is impossible to break up the combined work into its constituting parts, the effort of creating it would go to waste, which is why collaborative projects need to decide on licensing in advance to avoid legal entrapment.
The screenshot could also be seen as a derivative work and to create such requires permission from the original author of the work the derivative is based on. While it’s pretty obvious that Frode’s text isn’t the main subject of the screenshot, Frode could claim that the image is a derivative because I would not have been able to produce it without his text as the basis. Choosing a different text or coming up with one myself might sound like a feasible alternative, but the aspects I want to focus the viewer’s attention on are particular constructs as found in this specific instance. Demonstrating them in any other context would make them far less relevant in their function as a practical statement. So if it is a derivative, I didn’t ask Frode for permission to create it.
Frode suggested that I should handle it as a citation, maybe because Frode works on documents and academic publishing a lot, so he’s the expert when it comes to citations. Quite frankly, I’m not convinced that my use of his text portion in the screenshot is actually a citation, and I wonder how Frode seems to not be aware of the citational deficits. For one, I’m not referring to any specific statements of the text. The red boxes highlight sporadic XHTML features that might be created by a program, so if I’m citing, I might not cite Frode. Frode’s text just happens to be around the potential citation and is captured as the broader context, while not being aligned and cut off, so the point really isn’t to cite the text at all. Second: I didn’t copy the cited text authentically (except if the claim is that there are many of them, cited down to character level and even splitting characters visually) as a citation would require. I also don’t indicate the source of the portions and won’t for the entire screenshot, because the source for the latter is myself, it doesn’t exist in this particular composition anywhere else. Or is the idea that the image can only be found on his jrnl blog server instance? Well then, I submitted it to there, so if I would have uploaded the image to my server (ignoring copyright implications), the result would have been me citing myself without involvement of Frode other than being the storage host for the citing publication. If it were a citation, I and everybody else would be able to use my image composition under my copyright terms including Frode’s cited portions as long as the copied citation material isn’t changed and the reference to the source is kept intact, without asking Frode for permission in advance. Not having to ask Frode for permission for every occurrence of redistribution would be a nice thing, but being prohibited from modifying the incorporated copy of the cited original wouldn’t. Do we look at Wikipedia articles as works built by each contributor citing all earlier citations/contributions down to the very first author who created the initial article text?
With a citation, Frode’s text portion as “cited” by me doesn’t need his permission to be cited, nor does his text fall under my copyright license just because I cited it, so if one extracts and reproduces Frode’s text from my image, he’s solely under Frode’s copyright provisions, but if he does something with my work as a whole including Frode’s citations (derived works for example), it would fall entirely under my copyright provision. Does Frode want to resort to citations in order to retain his copyright in case that somebody extracts his text from my image, to not give his text into the commons of the libre-freely licensing community as his original article publication is still under “all rights reserved”? Does he care about the function of citations as references that serve as promotion and “impact factor” (“relevance”, page rank and SEO for academia)? Does he care about personality rights/moral rights? If I only knew, I could adjust accordingly.
It’s important to understand that copyright notices as a consequence of licensing don’t serve as a mechanism to make explicit who referenced what as citations do for critical review and discussing the cited separate original. Instead, they’re about explicitly declaring the legal status of a combined or non-combined work. Copyright isn’t designed to make things open and useful, it is designed to do the exact opposite: to restrict usage, mandated by law as the default. Citations in their legal function limit copyright a little bit, so useful reception isn’t prevented entirely. The legislator deemed the most primitive “collaboration” of re-inventing the wheel over and over again to be already sufficient. It was imposed by the slow, static production and dissemination of printed books, where no-one can interact with the original author via the physically fixed medium, so the suggested way is to prepare and publish a response that includes citations and improvement suggestions in another book, for the original author/publisher to hopefully discover it in order to cite them again in a third publication. This methodology is the maximum of what citations grant us legally for “collaboration” despite the advent of computers and networking.
If there’s some disagreement that eventually leads to a legal dispute, a judge would need to decide what kind of work the screenshot might be and either split it into individual, autonomous parts or treat it as an indivisable whole. Depending on the outcome, we would face different scenarious of who would be rightsholder: Frode alone, me alone, both of us or none of us, if the screenshot should turn out to be not copyrightable. I would learn if I did infringe on Frode’s copyright or not, if I (and subsequent others) would be permitted to make use of the creation or not. In fact, the pre-digital copyright utterly lacks ways to find out who is a copyright holder or to establish who owns what if only specific parts of a combined work should be used, which in itself is reason enough to explain why copyright is broken beyond repair. Transclusion doesn’t help at all because the transcluded original source can disappear at any time and in the case of the screenshot image, there’s no way to technologically construct it in the exact composition of elements as on display. To create ViewSpec capabilities that enable such results is not only very difficult, they would be of almost no general use and therefore a great waste of time. Neither transclusions nor ViewSpecs would solve any of the legal problems, they would only distract from them by creating the impression that combined works are possible without too much care about the legal status of the elements they’re composed from.
The sad reality of copyright in the digital era is that no matter how good the technical work or content is – if the human system of accompanying legal provisions turns out to be deficient, everything is destined to go right into the trash, pretty much like most of software development and text publishing is done up to this day, producing into obscurity and irrelevance.
To be completed…