PD HowTo

2006-12-30

In commenting on my essay Who's Afraid of the Public Domain?, Mike Linksvayer raises a practical question: how exactly do you put your creations into the public domain?

On all of the writings I post at my website, I place a "public domain" image (linking to http://creativecommons.org/licenses/publicdomain/) and the phrase "no rights reserved" (linking to my copyright policy; I also place a meta tag of <meta name="DC.Rights" content="Public Domain"> in the head of each page. Is that enough? Maybe not. According to this Wikipedia page, we face the following conundrum:

It is controversial, however, whether it is possible for a copyright holder to truly abandon the copyright of their work. Robert A. Baron argues in his essay "Making the Public Domain Public" that "because the public domain is not a legally sanctioned entity," a statement disclaiming a copyright or "granting" a work into the public domain has no legal effect whatsoever, and that the owner still retains all rights to the work not otherwise released. The owner would then have the legal right to prosecute people who use the work under the impression that it was in the public domain. It is certainly true that under some jurisdictions (which ones?), it is impossible to release moral rights, though that is not the case in the United States. A more likely problem may be the lack of factual evidence that the owner has indeed put the work into the public domain.

Some scholars of copyright law, including Lawrence Lessig, agree that it is difficult to put works in the public domain, but not impossible. The Creative Commons website, for example, has a public domain dedication form which produces an electronic receipt which is meant to act as legal backing for the dedication. Even if it is ruled that a work cannot be released into the public domain, a thorough dedication such as this one also releases all rights, so that the author retains only a free-use license. Lessig, however, argues that another licensing option, such as the Creative Commons Attribution-Only license, is a safer choice, and that click-through agreements are insufficient to put works in the public domain.

Hmm. There are several problems here:

  1. American law was modified in 1976 to automatically put works under copyright, thus (seemingly) removing the option to place one's works directly into the public domain. This change supposedly protected creative individuals but in fact restricted their freedom.

  2. The identity of the author is not necessarily clear from a legal perspective. Yes, I own saint-andre.com (look it up in whois), so presumably I have control over what is posted at that domain. But is my assertion that I am the author of, say, Who's Afraid of the Public Domain? legally binding? Well, it appeared at my website first, but it's not digitally signed, so who knows.

To overcome some of these challenges, Creative Commons provides a public domain dedication service whereby the author enters an author name, email address, and work title into a web form and Creative Commons sends an electronic receipt to the author and to Creative Commons. But who says that a given email address can be reliably associated with the author? A stronger method would involve the use of digital signatures, but that is prohibitively difficult for the average creative individual, who doesn't know what a digital certificate is, let alone have the tools that would make it easy to digitally sign documents, images, and the like -- heck, even I don't know how to digitally sign an HTML file with OpenSSL, and (thanks to Thunderbird) I digitally sign the email messages I send!

It's clear to me that we need better tools to enable rights-assignment (including assignment to the public domain) during the authorship phase -- support in word processors, desktop publishing programs, image creation applications, music recording software, and so on. We need better ways to associate electronic files with authors, whether through digital signatures or some other means. We need ways to register public domain works with a neutral third party such as Creative Commons. Then we need to start testing these mechanisms among authors and in the courts of law and public opinion.

In the meantime, I've updated my copyright policy to adhere to the guidelines that Mike mentions, and I've updated my essay to point to some helpful pages at Creative Commons.


Peter Saint-Andre > Journal