P. Bernt Hugenholtz

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Hugenholtz photoThe public domain begins with authorship, but depends on a creator’s willingness to share his or her creation in the public sphere through some sort of license. Speaking at the Law School on October 24, Professor P. Bernt Hugenholtz examined how two systems approach the issue of creators’ rights and public dissemination of work: the regime of “authors’ rights” common in civil law countries for hundreds of years, and the open-source movement inspired Creative Commons licenses that are based in U.S. copyright and contract law. Hugenholtz, who suggested the two approaches might be combined to good effect, is a professor of intellectual property law and director of the Institute for Information Law at the University of Amsterdam. His talk was sponsored by Duke’s Center for the Study of the Public Domain.

Creative Commons, which was co-founded by William Neal Reynolds Professor of Law James Boyle, offers creators a platform of predefined, standard-form online licenses that give users broad freedoms to reproduce, adapt or disseminate their works, while preserving some rights for the creators themselves, Hugenholtz explained. “You can choose how many rights you want to give away. There are icons for attribution, no commercial use, no derivative work–and if you use my work, offer it under similar–‘share-alike’–terms.”

Creative Commons licenses promote the wide dissemination of creative work, an original goal of the U.S. copyright system, Hugenholtz continued. They additionally turn back the clock on copyright in allowing authors to shorten the terms under which their work is protected, emulating the original 14 or 28 year copyright term of the Copyright Act of 1790, as opposed to the current term of “life [of the author] plus 70.” A key attraction of the new licenses–over 50 million are currently in use and an offshoot system for scientific work, Science Commons, is gaining in popularity–is the fact that the author remains “the master of the universe, Creative Commons enables the author to license his work directly to a user.”

The authors’ rights regimes that prevail in many civil law countries share that feature, said Hugenholtz. Rooted in notions of natural justice, authors’ rights are not dependent on formalities “because the right is created upon creation.” They are long-term, with “life plus 70” the norm in the European Union, and even “life plus 100” the rule in Mexico.

Authors’ rights provide protection for the creator not only against third parties that infringe their rights–the so-called ‘pirates’–but also against their contractual counterparts, the publishers or other exploiters of their works. Authors enjoy two types of protection against exploiters: moral rights and statutory limits to copyrights transfers. Moral rights, “inalienable rights of true creators”, cannot be fully waived. Two moral rights are central to the authors’ rights regimes: the right of “paternity,” or attribution, and the right of “integrity,” which gives the creator the right to object to the mutilation or distortion of the work. These moral rights color the creator’s economic rights; assignments are never absolute. A creator cannot transfer “all rights” to a publisher as is common in the U.S. Creative Commons licenses mirror these moral rights in allowing a creator to insist on receiving attribution for and being able to restrict derivations of the original work, Hugenholtz observed.

Finding common ground between the “new world” Creative Commons and “old world” authors’ rights inspired Hugenholtz to suggest a synthesis that he called “author’s copyright”: moral rights for life, and economic rights for a limited term.

“The public domain starts here, with the author,” he concluded. “Keeping the copyright where it originates, with the authors, is the only way to safeguard the public domain.”