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Welcome to the World of Wiki and Linux: Enforcement of Copyright in Collaborative Works
[September 27, 2006]

Welcome to the World of Wiki and Linux: Enforcement of Copyright in Collaborative Works

By TMCnet Special Guest
The emergence of the Internet has given creators the opportunity to collaborate in ways that have never before been available.  Using the Internet, collaborators can edit documents in real time, discuss those changes with other collaborators and readers around the world, and with a single click distribute the end result to countless readers.  But how does one of these collaborators enforce rights in the resulting works?  This article will discuss why the authors believe that existing copyright categories do not suffice, and that this Internet-fostered phenomenon requires a new copyrightable category: a “collaborative work.1

The foremost example of a collaborative work is Wikipedia, the online collaborative encyclopedia, with over five million articles in over 229 different languages, all contributed by members of the general public.  “Open source” software projects are another fertile ground for collaboration with the Linux kernel having, for example, over a thousand contributors in its fifteen years of existence.  Copyright law, however, has not kept pace with these developments.  A fundamental tenet of copyright law is that an author may protect only his or her own original expression, which in the case of a collaborative work may be relatively small with respect to the whole.  Consequently, enforcement of copyright in a collaborative work poses a challenge.

Collaborative Works
In some sense, the definition of “collaboration” is simple, as it refers to multiple people working together to produce a common result.  Collaborations occur frequently in the realm of copyright, with films and commercial software as prime examples of the traditional collaboration.  For such collaborations, the owners generally can be readily identified and the content of the work is independent of its subsequent uses or derivates.  Collaborative works, in contrast to traditional collaborations, are characterized by the lack of a single owner and the fact that each succeeding revision of the work effectively replaces all preceding revisions including the original work itself: a collaborative work can be edited in place such that succeeding revisions rapidly render every preceding revision obsolete.  In addition, each collaborator’s contribution (and thus ownership) of the collaboration is “diluted” in relation to the contributions of the other collaborators much as shares (and thus ownership) of corporations are “diluted” as additional shares are issued.
The quintessential collaborative works are “wikis” — Web sites that permit a visitor to freely edit documents in the wiki.2  A defining attribute of a wiki is that documents are edited in place such that visitors to the wiki will see revisions in real time as soon as edits are made.3  Wikipedia, the online encyclopedia, is one of the largest wikis, with more than 1,390,000 articles in the English language version and a significant number of contributors; indeed, more than 25,000 users edited Wikipedia entries in December 2005 alone.  All Wikipedia content is licensed under the GNU Free Documentation License (“FDL”) published by the Free Software Foundation (“FSF”).  The FDL grants any person complying with its terms the non-exclusive right to, among other things, redistribute and make derivative works of a covered work so long as that person licenses back their derivative works under the FDL.  Consequently, the Wikimedia Foundation, which owns and operates Wikipedia, has a non-exclusive right to contributed articles under the FDL, but takes no ownership interest in those articles.
“Open source” software (“OSS”)4 is software protected by copyright that is licensed by its authors under terms permitting redistribution to the general public and the making of derivative works without royalty, so long as licensees comply with certain restrictions on how such derivative works may be used or licensed.  Open source collaborators use the Internet for all aspects of software development, from exchanging source code to discussing the project and distributing the software to end users.  Newer versions of OSS software generally supersede all previous versions, and so each succeeding version effectively replaces older versions.  OSS projects use a variety of licensing schemes.  Many are licensed under the GNU General Public License (“GPL”) published by the FSF, which permits, among other things, redistribution and the making of derivative works from covered software under the condition that all such derivative works themselves be licensed back under the GPL.  Many other OSS projects are licensed under the more permissive “BSD” license, which authorizes the general public to exploit the covered work in any manner so long as a suitable attribution notice is incorporated therein and each licensee accepts a warranty disclaimer.  Neither license contains provisions regarding enforcement of the copyrights in the software.  Accordingly, the determination of ownership interests in OSS software falls to traditional copyright doctrines.5
The difficulty presented by collaborative works is that copyright law gives each collaborator only limited rights in the collaboration with no way to enforce copyright in the entire work.  As the Supreme Court reiterated in the seminal case of Feist Publications, Inc. v. Rural Telephone Service Co., “[o]riginality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.”6  Thus, each collaborator generally has a copyright only in his or her own contribution and not the portions of the work authored by other contributors.7  The problem is not that each collaborator has no rights; the problem is that all of them have rights in the collaborative work, diluted to the point of practical oblivion.
These limited rights present several issues.  First, since collaborative works can potentially have dozens, and, in some cases, hundreds, of contributors, the diluted nature of ownership in a collaborative work gives each individual author no real incentive to enforce his or her own copyright in the work.  Without any incentives to enforce copyright in the collaborative work, the collaboration may languish as infringers plagiarize from the collaborative work or withhold modifications from the collaboration that could have been incorporated back into the collaborative work.  Such withholding violates the implicit quid pro quo of collaborative works: “I will give you my contributions so long as you will give me yours.”  Second, even if collaborators have an incentive to enforce copyright in the collaborative work, it remains an open question as to which collaborators would adequately represent the interests of the entire collaboration and not just their own self-interest.8
Traditional collaborations have not had to face these problems.  Despite the fact that the closing credits of any modern movie reveal that tens, if not hundreds, of individuals routinely contribute to each movie (everyone from the director to the special effects personnel), the movie studio is generally the sole author of a movie because of the effect of the “work made for hire” doctrine.  Similarly, commercial software development companies (and not their employees) generally own the rights in commercial software.  In both cases ownership of the collaboration was vested by copyright law in the entity that brought the collaborators together.  Collaborative works have no association with such a single entity; the collaborators are free to come and go much as shareholders of a public corporation come and go as they trade their shares.  Interestingly, the FSF recognizes the need for a single focal entity through its requirement that all contributors to its software projects sign a copyright assignment agreement before their contributions are even considered for inclusion.
But are there any viable solutions?  Copyright law already has a way in which authors can share an interest in an entire copyrighted work.  Under the “joint works” doctrine, authors of “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”9 each own an undivided interest in the entire joint work.  Joint authors share rights even if their contributions are unequal.  However, this doctrine would not be applicable to collaborative works because case law has held that authors must have a specific intention that a contribution be merged into the joint work at the time the writing is performed and not afterwards.10  (The contributors to a collaborative work will be hard pressed to claim that they had the intention to create a joint work if they have never met and a particular collaborative work was already in existence for some time before new contributions are made.)  Recognizing collaborative works as a form of joint work would give each collaborator an incentive to enforce copyright in the entire work, but would do nothing to align the goals of the individual collaborators with that of the entire collaboration.  Legislation may be necessary to provide the necessary concurrence between the collaboration as a whole and the person(s) enforcing copyright on its behalf.
The free exchange of ideas made possible by the Internet has allowed a new form of work — the collaborative work — to flourish.  However, without any consideration of how to enforce the copyrights inuring in collaborative works, potential infringers may be able to avoid liability for copyright infringement because of the diluted nature of the ownership of those works.  As ownership of collaborative works becomes increasingly diluted, a common point of enforcement becomes more necessary.  One solution is to treat collaborative works in a similar manner as a joint work so that certain contributors to the collaborative work can enforce its copyright.  Such a solution would do nothing, however, to ensure that those contributors act with the interests of the collaboration in mind.  Consequently, until copyright law catches up with the developments of the modern world, the ability to enforce copyright in collaborative works will remain limited at best.
Stanton J. Lovenworth has more than 25 years’ experience in corporate representation, including mergers and acquisitions and business organization.  He is the head of Dewey Ballantine’s Intellectual Property Transactions and Technology group and a leader in the firm’s Life Sciences and Health Care practice.  Mr. Lovenworth has extensive experience in transactional intellectual property matters, including technology licensing (particularly in the pharmaceutical, biotech and software sectors); patent, merchandise, trademark and copyright licensing; protection and enforcement of trademark rights; formation of  pharmaceutical, biotech, software development, telecommunications and other intellectual property-based or -centered joint ventures, collaborations and strategic alliances; and research, development, co-promotion and supply agreements in the pharmaceutical and biotech sectors. In addition, Mr. Lovenworth has broad experience in mergers and acquisitions, “spin-outs” and venture capital transactions involving intellectual property assets.
Thomas K. Dyas is an associate in Dewey Ballantine’s Intellectual Property Transactions and Technology group.  His practice encompasses transactional intellectual property matters.  Previously, Mr. Dyas worked in the information technology industry as a computer security analyst and software developer for such companies as IBM (News - Alert) and VA Linux Systems.
1 Of course, copyright law deals usually with the issue of multiple authors in certain contexts, such as employer/employee situations or specifically enumerated “work made for hire” situations, such as films, where the end result is a single owner of the product.
2 Many wikis, including Wikipedia, do impose limits on who can edit the wiki in certain instances to avoid vandalism and so-called “editing wars.”
3 While prior revisions can sometimes be accessed, this usually takes extra steps to accomplish and is usually done only for archival purposes.
4 Open source software is sometimes known as “free software”, a term that the FSF coined.
5 Under traditional copyright law, authors automatically obtain a copyright in any original work of authorship at the moment it is fixed in a tangible medium of expression.
6 499 U.S. 340, 348 (1991).
7 For example, in New York Times Co., Inc. v. Tasini, 533 U.S. 483 (2001),  the Supreme Court held that, absent an agreement to the contrary, the New York Times had no copyright in the individual articles it publishes, but rather only the entire collective work encompassing the entire newspaper as published.
8 Arguably, in the case of Wikipedia, the Wikimedia Foundation would be the proper party.
9 17 U.S.C. 101 (emphasis added).
10 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 6.03.

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