Repositioning Creators’ In The Digital World: Part III

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III The Creative Commons Licence

Evolution Of The Creative Commons

If Public Domain can be considered a container, then the Commons represents its content of inexhaustible resources, jointly held and accessible without permission. Open Content is a philosophical context in which Creative Commons develops its menu of licenses, a set of legal provisions that allows anyone to use certain works without specific permissions or royalties.79

- Andrea Ciffiolilli, PhD Candidate
Department of Economics, Universita Politecnica delle Marche, Ancona, Italy.

Call it the Commons,80 the Knowledge Commons,81 or the Global Commons,82 the right of ‘common’ has been recognized in law since the Renaissance.

Though the term Commons has been used historically in relation to communal property and in relation to the environment, it is increasingly becoming a term of reference used to describe endangered public resources, including knowledge and the arts. The overarching idea in a common property regime is that the property in question is owned by a defined community, and is managed in accordance with long term goals for the general benefit of the entire community. Most common property regimes are very careful about the commodification of resources, for fear it would lead to the depletion of the resource or the creation of social inequality.83

Carol Rose, a professor of Law and Organization at Yale University, has spent a great deal of scholarly time examining the social features that are beneficial to the creation of a common property regime.

Nevertheless, issues concerning the global commons pose a particular challenge to the social optimism of the CPR (“Common Property Regime”) literature: however effective CPRs might be for small-scale resources, they could be entirely ineffectual on a large scale. A new literature on social norms seems to be converging on the view that while community regimes for managing common property are not at all unusual, such regimes are very likely to develop only under certain favorable conditions. These circumstances can be predicted from transaction cost analysis. Critically important are opportunities for mutual monitoring and social leverage; small group size helps to produce these opportunities, as do pre-existing familial and social relations. Robert Ellickson, a leading figure in the new norm literature, predicts that norms are likely to emerge to overcome collective action problems in what he calls “close-knit groups” but he is agnostic about whether this can occur on a larger scale or among strangers.84

Given the perceived barriers related to the size of the global creative community, one must ask the question ‘Does the Creative Commons present the remedy, or is it simply not going to fit all creative models?’ This question will remain unanswered for a period of time, though the immediate success of the Creative Commons model is indicative of its appeal.

The minds behind the Creative Commons have taken inspiration from historical concepts of the Commons, the Public Domain, Open Source and Copyleft in shaping the Creative Commons. A commons, which they argue, will not fall victim to the tragedy of the commons due to the unconsumable nature of the information.

The Creative Commons and the Creative Commons Licence are the brain child of Lawrence Lessig, Stanford University Professor, author, blogger and “Internet guru”. Ideally, Lessig and his fellow advocates see it as the commons that would hold all forms of creative property in common for the benefit and use by all. They see the Creative Commons option as one that creates a middle road between the “All Rights Reserved” standard copyright disclaimer and a “No Rights Reserved” surrender to the public domain, and addresses the concerns that are raised by this dichotomy.

Too often the debate over creative control tends to the extremes. At one pole is a vision of total control — a world in which every last use of a work is regulated and in which "all rights reserved" is the norm. At the other end is anarchy — a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation. Balance, compromise, and moderation — once the driving forces of a copyright system that valued innovation and protection equally — have become endangered species.85

The Creative Commons Licence provides the creator with control their rights and gives them the opportunity to create a “Some Rights Reserved” licence that can be tailored to the creators’ specific needs and desires.

The Creative Commons Licence takes its inspiration from the original Open Source and FLOSS communities. The menu-style licensing strategy, wherein rights holders pick and choose the rights they would like to licence, is derived from the FLOSS model. The concept is further based on principles that are expressed in the idea of the Public Domain, but also in the Open Source movement, and the debates of the Cultural Commons and other Open Content public interest groups.

It is a repeated theme among the founders of the Creative Commons that the future greatness of any society is dependent on the ability of its creators to stand on the shoulders of the giants of the past. This observation about the nature of human creativity often frames arguments in favour of the Creative Commons licence which are directed at the issue of access, as it relates to end users and other creators. Not only to the ‘Commoners’ believe in the expansion of the Public Domain, they also believe that once artists become aware of the objective of the Commons many will choose to turn their works over to the public, or to exercise only some, but not all, of the rights available to them under the law.

The purpose of all of this [Creative Commons] was to demonstrate that you could give up control over part of your rights and encourage lots of creativity on top of it without necessarily giving up the right to make money from the underlying content that’s being sampled. / The sampling licence in its pure form says, you can sample me, you can sample me for commercial purposes, but you cannot copy my underlying song and distribute that for either commercial or non-commercial purpose.86

The Creative Commons Licence

A creature of the twenty-first century, the Creative Commons regime was introduced in the United States in the Spring of 2003 and is rapidly expanding to other jurisdictions. Versions of the Creative Commons Licence are already available in Canada, Australia, Austria, Belgium, Brazil, Finland, France, Germany, Japan, the Netherlands and Taiwan. Working with various global agencies, its founders are pushing for the introduction of the licence in Chile, China Croatia, Ireland, Israel, Italy, Jordan, South Africa, Sweden, Switzerland and the United Kingdom.

Though the Creative Commons licence, is the most common version of a commons licence, it is not the only version currently employed. Art Libre, an organization operating primarily out of France has launched a commons licence under its ‘Free Art’ label. Though the labeling is different, the impetus behind the licence is similar.

Generally, the rights that can be controlled under the Creative Commons licence include:

  1. Attribution: Allows others to copy, distribute, display and perform a copyright protected work, or a derivative work based on it, but only if they give the initial creator credit.
  2. Noncommercial: Allows others to copy, distribute, display and perform a copyright protected work, or a derivative work based on it, but only for noncommercial purposes.
  3. No Derivative Works: Allows others to copy, distributes, display and perform verbatim copies of a copyright protected work, but not a derivative work based on it.
  4. Share Alike: Allows other to distribute derivative works only under a licence that is identical to a licence that governs the original work.

The influence of Copyleft in the Creative Commons regime is seen in the Share Alike aspect of the licence, or the aspect of the licence that calls for reciprocal licensing under identical terms of the parent licence. A Share Alike Creative Commons licence implicitly authorizes the production of derivative works. A licence cannot include both Share Alike and No Derivative Works options. The most commonly employed version of the Creative Commons licence is the “Attribution-Noncommercial-Share Alike” licence.87 There remains space within the Creative Commons regime for the commercial exploitation of work, whether this is achieved through individual licences or alternative collective licensing regimes.

With the Creative Commons Canada licence, there are six possible licences, each of which reserves a different subset of copyright(s). The appropriate licence is generated on a creator's response to the following two questions:

  1. Do you want to restrict commercial uses of your work, i.e. permit others to copy, distribute, display and perform the work and derivative works based upon it only for non-commercial purposes?
  2. Do you want to allow modifications of your work?
    1. Yes, i.e. permit others to create derivative works
    2. Yes, as long as the other works are share alike, i.e. permit others to distribute derivative works only under a licence identical to the licence that governs your work.
    3. No. i.e. permit others to copy, distribute, display and perform only verbatim copies of the work, not derivative works based upon it.

Once a creator has selected the appropriate Creative Commons Canada licence variant for his or her digital work, the licence generator will output three different formats of the licence, each with its own specialized function.88

Regardless of the form of Creative Commons Licence that is selected, the licence has standard terms that specify it applies worldwide, lasts for the duration of the work's copyright, and is non-revocable.

The Canadian Creative Commons licence varies slightly from other international models as the licence terms needed to be adapted from the American model to specifically include the concept of creator moral rights. Pursuant to the terms of the licence the creator moral right of attribution is retained, but, in all versions of the licence the right to integrity of the work is expressly waived.

Supporting The Remix Culture

The impacts of a strong counter culture have been critical in the development of the Creative Commons licence. The primary parties who were considered in the development of the licence were creators, both in their creator and user capacities, and end users of creative information who benefit from a healthy and vibrant Public Domain.

Particular consideration was given to the need for a strong “Remix Culture”, defined by Lessig as a diverse outpouring of creativity particularly in forms such as documentary film makers and music sampling, which are based on multi-media and compilation. The appeal of the Creative Commons has been heightened by recent news stories about the plight of film makers trying to clear the rights to old film clips, lyrics, corporate logos and such, and of culturally important films forced out of distribution because the term of licence on “Happy Birthday” had expired.

The advent of Napster and the second-generation Peer-to-Peer stacks led to an unprecedented upheaval in the music industry, as these programs are seen as tools that facilitate mass infringement. However, Lessig and others in the academic world support P2P for the “Remix Culture” benefits.

Now I don’t personally support the idea of people using peer-to-peer technologies to commit acts that are considered illegal. So I am not interested in peer-to-peer surviving for the purposes of enabling copyright infringement. But I am really eager that the technology be allowed to exist so that the many legal uses that it will encourage – including uses that will support the remix culture – will be able to take off.89

The potential advantages of a P2P system are also advocated by Neil Leyton, an indie musician and founder of the independent music label Fading Ways. This label has released a number of “Sample” CD’s under Creative Commons licence. The general perception advocated by Leyton and other independent artists is that P2P, the Internet and the Creative Commons open marketing and creative tools that had previously been inaccessible to most artists.

Position Of The Creator

There is a cogent belief in the Creative Commons culture of providing due respect to both the creator and the user, while achieving a “balance” which is seen by many as critical to the modern evolution of copyright. However, as in all balance equations, there are, presumably, benefits and burdens that must be assumed by each party.

Both sides of the copyright bargain deserve respect. Copyright imposes responsibilities as well as rights upon both authors and the public. It is simply not fair for one side to take all the benefit and accept none of the responsibility of the copyright bargain. This applies equally to authors and the public. The public must ensure that authors are economically rewarded for their creative gifts, and authors must ensure that the public is able to retain its rights and abilities to use and access creative expressions90

Generally, some creators have seen the licence as an empowering tool. It is their first opportunity to easily market their works in the manners they would desire, and therefore gives rise to the possibility of the implementation of extensive alternative marketing strategies. This perception was very evident in the comments of Gilberto Gil, Brazilan Culture Minister and Grammy award winning artist, when he addressed students a presentation at New York University on the eve of the launch of the Creative Commons Licence.

This licence allows us musicians and composers to make it explicit to the world – in a manner intelligible to any legal system - that our work, or some of our works, may be samples in the creation of other artistic works, without the people who sample having to ask us permission or pay anything for the sounds sampled, even if they want to commercially release creations that use elements of our own creations …

Copyright today has become an absolute restriction. In the Creative Commons model, which the Brazilian Ministry of Culture fully supports – as my show tomorrow at town hall will prove –you, as creator, have the possibility of liberating some rights to your creative work, or all of them, in addition to the possibility of managing the licenses you adopt. 91

The commons approach has also been praised for its recognition and acceptance of the diversity among creators and creator groups. Proponents of the Creative Commons do not believe that all artists have the same interests, goals or motivations. They recognize that modern advances in the digital realm have helped some creators, by providing access to new markets and additional materials, while it has hindered some other creators through lost sales and Internet piracy.

The overt claim is that copyright exists to protect the rights of “our” creators, who have been “shaken” by new technologies. The claim is at once an overstatement and an understatement. Some creators do stand to lose from unauthorized circulation of their work on the Internet, or unauthorized copying of it with new technologies. As harm is done to these individuals, they may be discouraged or prevented from developing new works from which many might benefit.92

However, within this discussion comes the recognition that the position of creators in the copyright debate cannot be presented as a uniform or consistent one. This recognition has also begun to take hold in the industry. As exemplified by the stance taken by Neil Leyton through Fading Ways:

Fading ways would also like to take this opportunity to reiterate our position on this issue: Canadian artists are NOT monolithic in their opinions.93

Nor is it always appropriate to lump the interests of creators in with the interest of publishers and other right holders who may not share the interest in moral rights or the further development of the creative community. This observation was accurately presented by Laura Murray:

Just as most copyright discussion positions creators and users on opposite sides of the battle, it tends to lump creators with other rightsholders (companies, heirs, assigns, collectives). This is a false geometry. Creators are not even merely a subset of the group “rightsholders” they are more accurately thought of as rightsholders and creators.94

One concept that has not been lost on the advocates of the Creative Commons is the need to ensure the remuneration of artists. Many artists seem indifferent to the source of remuneration and don’t care whether it comes from licensing of the works, payment under alternative licensing regimes that facilitate commercial uses, or from additional sale generated under the alternative marketing strategies fostered under the Creative Commons licence.

When copyright was started, it was to ensure that somebody who invents something or creates something benefits from that. But what is happening now is that people aren’t benefiting from it at all. It’s the corporations that are benefiting.95

The Creative Commons and other Internet tools are seen by many in the creative community as tools that allow creators to secure and control their own remuneration without interference from industry intermediaries who would take a cut of profits and eliminate these tools.

Position Of Copyright Law

The Creative Commons generally supports the existence of copyright law both within and outside the digital world. This comes in part from the recognition of the need for multiple strategies for the administration of rights systems, and the variant desires among creator groups.

Certainly, it is in the public interest that works be protected; they represent human labour and resources that it would not make sense to waste. During copyright term, creators may be protectors of works; they can decide when, how and if to publish or sell and even after publication or sale they have a moral right to the integrity of their work, and can go to court to prevent it from being mutilated or altered. However, if moral rights are asserted to insulate published works from interaction with the world, protecting these rights may not protect the work itself.96

The copyright law has been the subject of criticism within the Creative Commons community for its prevailing “protection” rhetoric and the concern that the need for protection may, on occasion, be improperly focused on the copyright industries rather than the content creator. Protection rhetoric has also been criticized where there is a fear that certain works may be kept out of the market for an extended period under the auspices of protection.

Cultural markets depend on non-market creativity, which generates new ideas and revisits old. Insofar as protection is a goal of copyright law and policy, it must apply to non-market cultural practices just as strongly as its does to market culture.97

Though there is generally support for the legal system, copyright law is seen as taking material out of the common pool.98 Advocates of the Creative Commons would like to include as much material as possible in the common pool, and accordingly are opposed to any revisions the copyright law that would extend the term of protection of works or otherwise serve to keep works out of the commons.

This consistency in this position, as it applies to inheritance of rights, the application of Digital Rights Management tools, term extension and all other manner of copyright expansion can be seen by examining the comments of a divergent pool of copyright commentators.

Russell McOrmond, a FLOSS advocate and technology consultant, when commenting on inheritance rights and term extension has said:

From my own experience I believe it is far more likely that my children are going to be creators and live off of their own creativity, not mine. My legacy should not only be beneficial for my own offspring, but the new generation of creators that will hopefully build on my creativity…. I see copyright as a balance not only of the rights of creators and their audiences, but also as a balance of the rights of past creators and future creators.99

There is also concern over the application of Digital Rights Management and how this may impact the ability of users to access works for where access is being sought for entirely lawful purposes. This is a concern that has been expressed by critics, such as David Bollier, 100 representatives of the greater library and academic communities,101 and creators themselves. The concern over expansive corporate and legislated control is best articulated by Neil Leyton, under the auspices of his label Fading Ways:

We are running the risk of authoring ONE exclusive cultural world at the expense of true art and cultural diversity. Ultimately, the very ability to create will disappear, once the monopoly of culture desired by CRIA et al. is achieved from a ridiculously strong copyright act, Digital rights management and technological protection measures.102

Perhaps the most consistent message that comes out of the Creative Commons is one that is framed by Lessig himself:

The spiral will not end until governments recall a simple lesson: Monopolies are evil, even if they are a necessary evil. We rightfully grant the monopoly call copyright to inspire new creative work. But once that work has been created, there is no public justification for extending the term. The public has already paid. Term extension is just double billing. Any wealth it creates for copyright holders is swamped by the wealth the public loses in lower costs and wider access.103

Nowhere in this rhetoric is there a critique of the ability of a creator to freely enter into contract with a company or individual, and to freely negotiate the terms.

Practical Applications

The practical applications of the Creative Commons regime are numerous and far-reaching. They are evidenced by the music of Gilberto Gil and other artists whose works have been released under the Creative Commons and by a growing acceptance of derivative works and a sampling culture.

The impact of the Creative Commons, and the industry doors that this opens, has been noted by alternative artists and traditional artists alike. The embrace of the Internet as a marketing tool in traditional arts sectors was described by Kip Cranna of the San Franscico Opera in an interview with Xeni Jardin, “We’re counting on technology to save us, because it helps us reach larger audiences than we could accommodate in even the largest of opera houses and concert halls.”104

Many artists have noted the implication of Internet marketing in terms of their ability to reach broader audience and increase sales. Artists have recognized that where works are given away, over P2P systems or under a Creative Commons licence, it can increase their marketability by exposing more people to their works.

The free proliferation of expression does not decrease its commercial value. Free access increases it, and should be encouraged rather than stymied….All of these examples point to the same conclusion: Noncommercial distribution of information increases the sale of commercial information. Abundance breeds abundance.105

Further, the Internet, through P2P and Creative Commons licence, has provided a marketing tool to some artists who did not have access to traditional marketing models. This is evidenced by the comments of Janis Ian, who effectively breathed new life into her career through the implementation of creative Internet marketing strategies.

As for publicity, I found that traditional means, like the Tonight Show, Time and Newsweek, simply weren’t working out as well for artists like me, because we were considered too old and not quite important enough. So I started to find other ways of promoting myself so as to keep in touch with fans.106

Future Issues For The Commons

Historically, there have been problems in communicating copyright policy and perspectives to the public. A number of commentators have cited language (jargon) barriers as the major impediments to community communications.

The problem is, we do not really have our own language to get beyond the “property categories” of copyright law. We do not have our own sovereign discourse for asserting the value of free, un-metered exchanges of information….We do have the language of copyright law and the public domain. But I believe this language doesn’t recognize how the sharing that goes on in a cultural commons – outside of the marketplace – is a powerful creative force in its own right.107

The goals of the Creative Commons for the future development of a full and healthy commons are admirable although they have not been the subject of discussion within the artistic communities. The Creative Commons Licence is not a solution for every artist, and not a complete solution for all who may wish to participate, but it does seem to provide them with the tools to manage their rights in a digital environment.

The founders of the Creative Commons are looking to the future and want to develop a large repository of Creative Commons licensed works in the form of an Intellectual Property Conservancy. The purpose of the Conservancy would be the protection of works of public value and importance, to ensure their integrity and wide spread availability. An Intellectual Property Conservancy developed by the Creative Commons would be founded upon principles of sharing, publication and creative interactivity.108

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