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Access Copyright II: Creative Commons

By Christopher Moore | March 5, 2006

Along with the selection of auditors, approval of the minutes and other routines, the Access Copyright annual general meeting in Toronto on Friday, March 3, had two items of particular interest to creators. Let’s take them in parts.

Creative Commons and Access Copyright

Maureen Cavan of Access Copyright and Marcus Bornfreund of Creative Commons Canada announced the two organizations will work together to create a new entity: an online, free, searchable Public Domain Registry – in effect, a comprehensive catalogue of Canadian works that are in the public domain. (It will be a list, not a repository on the lines of Project Gutenberg, but it will be able to provide links to online versions of public domain materials.)

The new Canadian Public Domain registry will work on wiki principles — editable by anyone using it — and it has the support of the Wikimedia Foundation, most famous for the editable online encyclopedia, Wikipedia.

Good idea. And the Access Copyright/Creative Commons partnership might also reduce misunderstandings that have existed among the partisans of Creative Commons and Access Copyright.

Participants in copyright debates sometimes fear that collectives like Access Copyright seek to commercialize and license everything. ( Consider the loudly expressed fear of Canadian Ministers of Education that someone wants to “license the internet” and collect money every time a schoolkid opens a browser!) Collectives only license certain uses of certain works. In some existing collective-license agreements, sampling, measuring, and reporting processes confirm that Access Copyright has no licensing interest in up to 95% of the material being copied. (The rest may be owned by the user, or in the public domain, or covered by fair dealing, or licensed in some other way, etc.) Yet the sheer volume of copying is such that it is still cost-effective to have a collective license for the remainer, which for large users can run to tens of thousands of licensed copies a year.

As a by-product of its measuring and recording processes, a collective builds up a vast bibliographic competency in non-licensable work as well as in those it does provide licensed access to. As a result, Access Copyright can immediately and at little cost provide a great deal of information about Canadian works in the public domain. And the Public Domain Registry should help demonstrate how collectives can facilitate public access to works and uses that are not under license as well as to ones that are.

Supporters of collective licensing have much to learn from this collaboration, too. Since Creative Commons puts so much emphasis on the right of copyright holders to waive their expectation of payment, writers, musicians and others who need to be paid for the value of the works they offer sometime wonder if Creative Commons is mostly “copyright for rich kids.” We fear that the $100,000 a year professors who choose to make their work available without charge through Creative Commons come to expect they can take everyone else’s work on the same basis — and are entitled to laws that make that a right. But in fact Creative Commons includes a “commercial use” clause. Those who need to be paid for commercial use of their work can put that right into their Creative Commons license. CC doesn’t need to imply surrender of one’s economic rights. Copyleft is part of copyright. (Or vice versa, if you prefer.)

What the Creative Commons process has not offered in this regard is the follow-through that collectives offer. If a user wants to make commercial-use copies of twenty CC works, it needs to hunt out twenty farflung rightsholders and try to negotiate twenty agreements and payment schemes. It’s hardly convenient or user-friendly, which means CC has a hard time delivering the goods to those who might exercise the “commercial use” rather than the “take it all” aspects of a CC licence.

The logic of licensing seems to be that Creative Commons systems are being driven either to become collective licensing shops themselves — or to link up with existing ones. Cooperating with one collective on the Public Domain registry may help open channels to explore CC’s options in that regard.

Meanwhile, the potential for a comprehensive, reliable road map to the Canadian public domain should be an unmitigated good in itself.

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