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Australasian Intellectual Property Law Resources |
Kimberlee Weatherall[*]
In a relatively recent paper on the Creative Commons, Israeli academic Niva Elkin-Koren adopted a title that might be apt for this presentation also: ‘A sceptical view of a worthy pursuit’. The phrase sympathetic scepticism may be oxymoronic,[1] but it captures something of the attitude with which I approach Creative Commons. Elkin-Koren and I both share Creative Commons’s concern regarding the expansion (in all kinds of different directions) of copyright and the risks such expansion poses to innovation and liberty.[2] I share, too, the belief that a great deal of copyright-protected material can and should be made generally accessible and useable, where its restrictions do not serve the objectives we associate with copyright: incentives for creativity; remuneration to creators, and a degree of control over the outputs of the creative soul.
However I am also – and this, too, I share with Elkin-Koren – somewhat sceptical of the particular strategies of Creative Commons. Something feels wrong. But identifying where the wrongness comes from is quite an exercise in forensic analysis. There is no shortage of critics of the Creative Commons movement and licenses. The criticisms range from the highly philosophical to the brutally pragmatic. But it is difficult, at times, to extricate the legitimate criticisms from the rant.
In this paper I undertake two broad tasks. First I examine, in a systematic way, the most frequently raised criticisms of Creative Commons as a movement and as a licensing system. The purpose of this examination is to judge how compelling each of these critiques is, and how they might be answered. The motivation for this paper stems most importantly from the fact that the potential users of Creative Commons licenses are no longer a few random bloggers or other hobbyists. We are seeing more government bodies and other public sector institutions considering their adoption: in late 2005, a commissioned report recommended the adoption of Creative Commons licenses across a whole range of public sector institutions,[3] and a Creative Commons-inspired license is, of course, already used by the BBC.[4] It therefore behoves us to think very carefully about what kinds of information, and what kinds of creators, such licenses fit. Should we ever be seriously recommending Creative Commons? If so, when? If not, what changes would need to be made before we could make that recommendation? Finally, in the last, brief part of the paper I consider whether the issues are different once we move beyond individual licensing of works, to consider public, and institutional uses.
Two features of this paper should be noted. First, in order to give some focus to the paper, it is concerned only with Creative Commons. I do not address any other existing open content licensing scheme. Some of the discussion here will apply more generally; other parts will not – but that is a matter for the reader. Second, in order to avoid a long, detailed, descriptive part, I assume that the reader already possesses some familiarity with the Creative Commons system. For that reason I will not be outlining the basics of Creative Commons licensing, the license elements, or its good points, except as they are relevant to answering the critiques outlined below.[5]
In many ways, Creative Commons is stuck between a rock and a hard place. In attempting to achieve real, immediate ends within the framework of the existing law, Creative Commons can appear to the Copyleftist or Information anarchist to be engaged in a sellout. By seeking openly to recruit people to a more open, less proprietorial approach to copyright, and by seeking to route around the established intermediaries which are an integral part of creative industries, Creative Commons is bound to inspire the dislike of those same influential intermediaries. In this part of the paper, I outline a series of critiques that have been raised against Creative Commons in the literature and commentary. As we will see, those criticisms do come from both sides. As I will also argue, many have some foundation, although many can also be answered.
The first critique sometimes levelled against Creative Commons is that it is more social movement than pragmatic toolkit. Commentators often refer to it as such,[6] and if we look at sociological definitions of the concept, it is easy to see why. For example, Turner and Killian define a social movement as:
‘[A] collectivity acting with some continuity to promote or resist a change in the society or organization of which it is a part. As a collectivity a movement is a group with indefinite and shifting membership and with leadership whose position is determined more by informal response of the members than by formal procedures for legitimating authority.’[7]
This would appear to fit the Creative Commons organisation. It is more collectivity than fixed institution: while there is an organisation at the centre which provides a measure of continuity, the general ‘membership’ of supporters – which we might characterise as users, the national groups adapting Creative Commons licenses to local law, and other supporters – changes over time. It is promoting changes in society, and a vision of the way that society ‘should be’, by seeking to bring about a change to the way that people make available and use creative works. The original US entity that is Creative Commons was built on the view that public institutions have failed to locate a proper balance in copyright, and that no correction can be expected in the near future, because the US Congress is corrupted,[8] captured,[9] or calcified by its procedural rules.[10] Nor is this movement satisfied with being confined to a closed community: rather, it explicitly seeks to convince the world at large. As Elkin-Koren describes:
‘Like its predecessors the Open Source Movement and Freedom of Software, [Creative Commons] seeks to change the social consequences of copyright law by instantiating an alternative. Unlike these movements, which focus on software and address a rather small and homogenous community of professionals, Creative Commons seeks to become a popular movement, which addresses the public at large. A key to its success is its ability to convince as many people as possible that Creative Commons is the right way to use creative works.’[11]
How do we know that Creative Commons aims to change the world through persuasion of the public at large? Firstly, because they say so. Creative Commons’s avowed aim is ‘to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules.’[12] Lessig is even more explicit. In Free Culture he states that:
‘[T]he point that distinguishes the Creative Commons is that we are not interested only in talking about a public domain or in getting legislators to help build a public domain. Our aim is to build a movement of consumers and producers of content … who help build the public domain and, by their work, demonstrate the importance of the public domain to other creativity.’[13]
As stated in the writings of Professor Lawrence Lessig,[14] the founders of this movement envisage a staged process of social and then legal/political change. The first stage is to create a rich ‘commons’, or repository of high-quality works in a variety of media, and to promote an ethos of sharing, public education, and creative interactivity. Then, through the establishment of this commons, and by means of creating a real, effective alternative, social norms will change as people become convinced by this alternative model of creativity and sharing. This change will, finally, create a foundation for changes to the law.[15]
Second, the actions of the organisation suggest a desire to ‘rally the troops’. Consider, for example, the script of one of the information videos which can be downloaded from the Creative Commons website:[16]
Only a couple of months into Creative Commons’ life, and more than 100,000 pioneers … had joined the movement. And then things got really interesting. Because before long you put this commons into practice just as we had dreamed but could never have done alone.
[…] what had been only an idea 8 months earlier was a global movement - more than 700,000 works licensed strong. And still you’ve helped us realise that more could be done. …
And so, Creative Commons carries on. 12 months since hitting the scene, more than 1 million licensed works, 1 million artefacts of culture free to re-use. And we’ve got bigger plans still. Plans to help authors republish books out of print. Plans to explore a Science Commons. Plans to weave our philosophy and our tools into the fabric of the Net. Plans to knock down the walls between Reader and Author, or Listener and Composer. Between Audience and Artists. Between Community and Citizen. or Culture and Creator. Plans to bring Creativity back to its senses. And with your help, to keep growing, just as big as the old Big C.
Creative Commons. The rules have changed. And it’s just the beginning.’
The mere fact that Creative Commons seeks to be a social movement is not necessarily a criticism. However, the adoption of the form and methods of a social movement has certain implications, which can be (and are) criticised.
The first implication is that in their eagerness to convince the public at large, spokespeople for Creative Commons sometimes have a tendency towards rhetorical excess (the kind seen in the ‘script’ quoted above). The rhetoric of the debate in which the proponents of Creative Commons are engaged sometimes takes on tones reminiscent of the Cold War.[17] This may be an accepted form of communication in the United States – a culture which, on the whole, has a stronger tolerance for persuasive oratory than Australia. In an Australian environment, however, boosterism has the potential to alienate potential allies.
A second criticism that can be levelled against the social movement approach is that, in its enthusiasm to collect ‘adherents’ or followers, it may tend to over-emphasise the positive aspects of such licensing, and downplay, or gloss over, the negative aspects. When this happens, it can tend to interfere with the ability of the non-lawyers to whom it is targeted to make a fully informed choice about the licensing that is appropriate to their circumstances. We see echoes of this criticism in comments by, for example, the Australian Copyright Council which refer to the ‘hype’ and ‘rhetoric’ of Creative Commons.[18] I think it is also fair to say that while there are certainly documents and statements buried within the Creative Commons website which urge individuals to obtain legal advice and consider carefully whether Creative Commons licensing will assist them, the impression from a more superficial visit to the website is that there are no downsides.
The problem is exacerbated by the fact that Creative Commons actually offers very little advice about the license terms and how to choose them.[19] It is quite possible to go to the Creative Commons website, and choose a non-commercial license without ever being alerted to the ongoing debate about what counts as non-commercial (you can find more on the website, but it does involve digging around a little). In response to the Frequently Asked Question, ‘Can I still make money from a work I make available under a Creative Commons license’, the answer is ‘Absolutely’, and the explanation does not explore the implications (in terms of value of the work) that the competing, free versions (perhaps available on file-sharing networks) might have. It really is difficult to imagine much revenue coming to a composer from a song that is broadly available on file-sharing networks. In short, Creative Commons promotes the positives and refrains from giving guidance, leaving authors to decide on their own.[20]
A third problem stemming from the nature of Creative Commons as social movement is that some of the particular terms in the licenses are not as ‘neutral’ as one might hope. Drafting a license inevitably involves making choices. In Creative Commons licenses, the choices are informed by the ideology of the movement as a whole: they are not ‘values-neutral’. One example of this problem may be found in the definition of ‘non-commercial’. In Creative Commons licenses which allow only non-commercial uses, the relevant clause reads as follows:
You may not exercise any of the rights granted to You […] in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.
The point to note about this provision is that it does not ban the placing of material onto a file-sharing network: this would appear to be true even if the company behind the file-sharing network is a commercial entity. In many countries, placing work on a file-sharing network is considered in the same category as commercial uses.[21] The reasons for excluding file-sharing are explicitly ideological: it has been done, according to the Creative Commons website, ‘because we believe that file-sharing, used properly, is a powerful tool for distribution and education’.[22] It is worth noting, perhaps, that when the Creative Archive License Group drafted a license, based on Creative Commons models, for use by the BBC and other organizations, it adopted a very different definition of non-commercial use.[23]
How serious are these problems? On the one hand, it would be unfair to be too critical of the desire of the Creative Commons to promote their licensing model with positive messages and stories of success, and by extolling of the benefits of the license. This is little different, after all, from the approach of the peak bodies representing copyright industry interests which regularly extol the benefits of the strongest possible copyright protection, and the general evils of copyright infringement.[24] It remains to be seen whether a movement framed in these terms can make headway in this highly pragmatic country.
On the other hand, the criticism that the website, and material produced by Creative Commons is so overly positive as to be misleading is, I think, justified. At times, the ‘boosterism’ glosses over the subtleties of licensing, potentially reducing credibility and losing allies in the process. Finally, the value judgments made in the licensing terms offered (such as the non-commercial term) is a particularly significant issue, because it encourages others to write their own, less ‘political’ licenses and license terms – possibly encouraging the tendency toward license proliferation, below.
In sum: at this stage, critiques of the amount and accuracy of information about Creative Commons are important. Before recommending use of the system, I would recommend a careful analysis of the terms and their implications, and (in the case of a governmental or public sector body considering them) the writing of a policy on the different licenses and which to apply in any given circumstances.[25]
The second, major criticism of Creative Commons that we see in the literature is that the movement is fundamentally incoherent: that its aims are entirely at odds with the strategies it adopts. The radical embodiment of this criticism comes from proponents of libre culture. For example, Berry and Moss, in an article from about 12 months ago argued that:
‘[T]he Creative Commons project on the whole fails to confront and look beyond the logic and power asymmetries of the present. It tends to conflate how the world is with what it could be, with what we might want it to be. It’s too of this time – it is too timely. We find an organisation with an ideology and worldview that agrees too readily with that of the global “creative” and media industries. We find an organisation quick to accept the specious claims of neo-classical economics, with its myopic “incentive’ models of creativity and an instrumental view of culture as a resource … Where we might benefit from critique and distance, the Creative Commons is too wary to advocate anything that might be negatively construed by the “creative” industry. … the Creative Commons’ ideological stance has the effect of narrowing and obscuring political contestation, imagination and possibility.’[26]
This criticism may be accurate when seen from a more radical viewpoint, but it is hardly helpful. To the extent that Creative Commons seeks to work within the current system – a fundamental policy choice already made – this criticism will stand.
More serious, because it is more sympathetic, is the critique of Niva Elkin-Koren. Elkin-Koren points out that in the Creative Commons literature, the concept of just what is the ‘commons’, and of what makes creativity possible are unclear.[27] There are generalised, vague statements that sharing of, and access to creative works is a Good Thing which Should Be Promoted, but beyond that the vision becomes blurry:
‘Creative Commons’ slogans emphasize access (‘Creativity always builds on the past’), but what kind of access to preexisting works is necessary to facilitate creativity? What would make a work accessible? Does it have to be free of any legal restraints? Is it enough that works would be widely disseminated? Could some restrictions apply and the work still be considered free?’[28]
The movement lacks a clear, comprehensive vision of the information society which is to be brought about by its actions.[29] As Solum has noted in another context, ‘Free’ has multiple meanings in this literature and is not always used consistently.[30] Built on this fuzzy foundation is the Creative Commons approach: the use of licenses, founded on the idea that authors should make the choice how to license their property rights in their works.
According to Elkin-Koren, the fuzzy foundation, and mismatched strategy lead to two key problems. First, by treating copyright works as commodities protected by property rights, the effect of a successful Creative Commons movement may be to encourage individuals to think of their writings as economic assets. Instead of strengthening a culture of sharing, this may weaken ‘the dialogic virtue of information that is a key to individuals’ participation in the creation of culture’. In short, she argues:
‘[R]eliance on property rights in creative works is likely to reinforce the belief that sharing these works is always prohibited unless authorized. To the extent this normative framework affects our behaviour, it may distort our natural practices related to information.’[31]
The second, related problem with relying on voluntary licensing is that creators may not make the choices that you would like: particularly if they are not operating according to some shared vision of creativity or the outcome to be obtained.[32] Elkin-Koren notes that to the extent that the vision of creativity in Creative Commons requires transformative use to be allowed, it assumes that individual authors will make licensing choices that authorise free access to their creative works: an assumption not, apparently, borne out by statistics on use thus far. In practice, people often choose the more restrictive Creative Commons licenses.[33] And why would they not? They have not been given some other vision of freedom to which they are asked to subscribe; the literature does not make clear what kinds of access are necessary preconditions to a creative future. Another commentator noted that:
‘What we’re seeing is that an effort intended to get more content into the commons is being used to restrict the flow of information. Social systems work in strange ways … There are a great many people with the desire to find methods to control their data and they seem to be latching on to the idea of twisting the information-liberation methods of Creative Commons to construct a culture of information-control.’[34]
Ian McDonald, too, has noted that in many cases, the very material people are most likely to want to re-use (corporate logos, Disney characters) are the least likely ever to be released under a Creative Commons license. [35]
There are a number of responses that may be made to these critiques. The last point is perhaps the easiest to deal with: it is true that much will not be licensed on these terms. To consider this fatal to the idea of Creative Commons licensing would be a mistake, however for two reasons: first, because the aims are more long term – Creative Commons as an organisation aims to set the foundation for legal reform in the future (which might make Disney characters more accessible!). Second, because it is possible that in some areas at least, resources may build over time. ‘Culture jamming’ and other mash-ups are not the only kind of creativity which Creative Commons as a licensing system may promote.
The more serious objection, of course, is the philosophical one: that Creative Commons will in fact have the effect of encouraging property views of creative outputs – and restrictive property views at that. However this argument, too, can be answered at least to some extent. First, it is not clear that Creative Commons will do anything to increase the extent to which we see copyright works as ‘property’. We are arguably already in a situation in which copyright and property rights in creative outputs are ‘pervasive’ – with or without the Creative Commons movement.[36] Stories about copyright pervade the popular media: a person would have to have been living under a rock for the past 2 years to be unaware of the fact that copying music to your iPod is, strictly speaking, copyright infringement (although it may soon not be). Advertisements regarding the evils of movie or music piracy pervade the cinemas and even the unskippable parts of rental DVDs. Schools are being encouraged (at times controversially) to build copyright into their curricula.[37]
Second, the particular version of property rights and creativity being promoted by Creative Commons could be seen as a useful counter to the existing copyright models. By emphasising the creative possibilities of sharing and collaborative information production, and by providing a legal mechanism which can be used, Creative Commons could, while promoting copyright as property, also help to indicate that property doesn’t necessarily mean ‘locking up’: that is, it could (and indeed, aims to) have an important effect in changing social practices, and signalling an alternative.[38] As Yochai Benkler has argued in his recent book, The Wealth of Networks, collaborative production of information goods has tended to be, though present, at least obscured until recently. The increasing profile of commons-based production may serve to alert people to the fact that there are other ways.
As for the issue of people choosing restrictive licensing terms and thus using the system to be more restrictive than in the past: this is, on current evidence, a real danger. One possibility is that unattractively-licensed material will simply ‘wither and die’ for want of users.[39] Another possibility, however, is that even restrictively licensed material may be a useful contribution to the public domain and to the culture of sharing.[40] The more access to artistic, creative, and informational material people have, the more they can build, not just on the expression, but the ideas in the works. We should not assume that Creative Commons has failed if people fail to allow derivative works. Nor, on the other hand, would one say it is a resounding success if everyone chooses highly restrictive terms. In those circumstances, we may end up feeling that we have gained little (and perhaps, lost something) as compared to a world in which everyone simply relies on implied licenses.
In summary, these debates over philosophical approaches, and the value of the ‘property’ label, have long been with us in copyright thinking and are likely to be long with us. Having made the policy decision to work within the system, some criticism is inevitable. The issue of people choosing more restrictive licenses than would serve the ‘movement’ is a more significant concern, at least on current evidence. To some extent, for so long as the vision of what access is necessary to promote creativity is unclear, it is hard to see why people would be less restrictive.
A third, quite common critique of Creative Commons is that it involves unnecessary, unhelpful and unhealthy invasion of a law-free zone by lawyers and bureaucracy – somewhat ironically for a movement whose founding tract suggests that we should ‘Fire Lots of Lawyers’.[41] In many ways, the Creative Commons system reflects a peculiarly American (and in particular, an American legal academic) way of viewing the (copyright) world. The resort to licensing reflects the characteristically American reliance on private ordering (or, in plain English – contract and property): itself driven by a philosophical emphasis on the liberty of the individual, and a preference for markets. In addition, there is also something very ‘bureaucratic’ about the open content licensing system. I suspect it has a relationship with a certain romance that we see in the US academic legal literature about the system for copyright registration. Until quite recently, in order to retain and assert copyright, US authors had to register, and display a copyright symbol on their works (©). There is a view, apparent in the US legal academic literature, that under such a system, things were ‘better’, that it enabled people to borrow with impunity from material not marked and registered.[42]
The problem is that once you have contracts – however ‘easy to read’ they are meant to be – you have law, and the need for legal advice. And the alternative is not necessarily a different law: the alternative might be acting outside the legal regime (that is, relying on things such as implied licenses). Commentators such as Berry and Moss note that in Creative Commons, ‘the ethical practice of sharing communication and culture is being conflated with a legal regime that seeks bureaucratically to enforce the same result through comprehensively drafted and dense legalese.’[43] Putting in licensing, using permissions, checking off another box on the form – Creative Commons is bureaucratic, and might come naturally to academics but not many others. Bowrey, too, has noted that Creative Commons and similar initiatives are:
‘[A]n extension of legal power and juridification of a communicative sphere that many once embraced as ‘free’, as meaning outside of effective legal practice.’[44]
This criticism assumes that using Creative Commons is about creating an enforceable system of rights and obligations. However, another way to see Creative Commons is as a system that is about more than just a set of legal obligations. Perhaps, and particularly owing to the ‘social movement’ nature of the organisation as discussed above, placing the Creative Commons button on your material is like adopting a political button on your jacket – an expressly political act; a signal of support for open access and a request to others to engage in ethical practice in relation to your work.[45] The use of law is conscious: as Bowrey notes, by using licenses and the copyright system itself, Creative Commons might be seen as a ‘public performance … a conscious break with the connotation of anarchy and lawlessness that has previously dominated discussion of digital technology and sharing.’[46] But the day-to-day practice of using Creative Commons licenses might be as much about affirming the value of open access, sharing and re-use of information and creativity as it is about using law.
On the other hand, Creative Commons can only avoid ‘overlawyering’ to the extent that it can achieve its aims of simplifying the acts of indicating permissions and re-using material. Creative Commons is unlikely to achieve this end if it becomes subject to that dreaded elephant in the room: license proliferation. License proliferation occurs where there are too many different kinds of licenses, applying too many different kinds of rights to material. License proliferation could occur within Creative Commons (if too many new licenses or license elements are introduced), or around Creative Commons (if too many other systems of open content licensing are introduced or used). License proliferation has generated a great deal of debate in the open source context,[47] and is an issue which the Unlocking IP project, as I understand it, plans to consider. In the Creative Commons context, a number of organisations have abandoned their own licenses and adopted Creative Commons licenses in part to avoid this issue.[48]
License proliferation has two key costs. The first is information costs (or information externalities): the costs to third parties of avoiding a violation. The more licenses there are, and the more different types of licenses there are, the higher these costs are likely to go. As Merrill & Smith have pointed out,[49] there is a reason why property lawyers, traditionally, have been very wary of defining rights in property via contract – or even permissions in relation to property. One example from their paper which sticks in my mind is the ‘Monday Watch’ example. Imagine if you could create ‘Monday rights’ in a watch – that is, the exclusive right to wear the watch on Monday - and could then sell them off to A. If you want to sell your watch to B later on, you will have to tell B about A’s ‘Monday rights’. Furthermore, once these kinds of rights can be created, all prospective watch buyers have to start asking whether there are any Monday rights (or Tuesday rights, or Wednesday rights) attached to the watch they are looking at. Merrill and Smith refer to the problem as one of ‘optimal standardization’ – you want enough different kinds of property rights to satisfy most people – without so much variety that you lead to a whole lot of additional complications for people day to day.
Now, of course, one of the points of projects like Creative Commons and others is to try to create standard licenses which everyone can understand. The transaction costs of checking out and understanding license terms do get reduced in this scenario. But let’s not pretend they’re not there. There are costs; there is a real tension between “optimal standardization” – having a small number of models people can be familiar with – and freedom to the individual to do what they like. This tension is only exacerbated in a movement which emphasizes the individual author’s right to choose how to license their material.
The second key cost of license proliferation is the problem of license incompatibility: that is, the problem where material licensed under one Creative Commons (or other open content) license cannot be combined with material licensed under another Creative Commons license because the terms are inconsistent. This too has been debated in the open source context: Rosen, in fact, has identified as the key issue given rise by license proliferation.[50] It is also a real issue in the Creative Commons context: at least one project in the United Kingdom has already reported issues of license incompatibility.[51]
The problem of license proliferation does not suggest that we should be converging on a single license or even licensing system. Any attempt to confine the licenses available too much would likely lead to failure of the system: people will only choose to use the system if there is a license which broadly matches their needs.[52] The attempt to confine the licenses too strictly would also be largely inconsistent with the stated philosophy of voluntary licensing and creator choice promoted in the Creative Commons literature. However, it does mean that we need to reach a judgment about the extent of ‘bespoke tailoring’ of rights: when do the costs of tailoring start to outweigh the benefits? In other words: how many is too many? And how would we know?
Some critics have argued that we are already at a point where license proliferation has very significant costs:
‘Lessig’s attempt to make it easier to understand which creative works can, or cannot, be used for modification (due to copyright) has spawned a monster with a thousand heads. The complexity of licenses and combinations of licenses in works has expanded exponentially.’[53]
On the other hand, other critics say that the license terms currently available are too limited.[54] A full exploration of this issue is beyond the scope of this paper. Suffice it say that the issue is a very real one, and one which at present is unresolved:[55] although many solutions have been proposed, from agreement on common ‘license elements’ across schemes,[56] to standardising by agreeing certain basic and necessary preconditions of free access,[57] to coordination by negotiation with Creative Commons whenever a new license is proposed.[58] Given the range of solutions, it would not appear that the problem si unsolveable – merely that it needs further discussion.
A fourth critique says that Creative Commons is largely irrelevant because the kinds of creativity which it fosters or allows are of low value. So, for example, Ian McDonald for the Australian Copyright Council comments (in relation to visual arts material) that:
‘There are … real issues as to the extent to which the people who rely on CC licenses are really “creators”, rather than hobbyists, businesses and organisations. By licensing under CC licenses, you may not really be contributing to cultural development, but merely to a world-wide pool of clipart. You are hardly striking a blow for a new world cultural order by giving the old one a free ride at your expense.’[59]
In Forbes magazine, Creative Commons proponents were described as a ‘ragtag bunch of gleaners who claim that copying is creativity because they can’t create anything without directly re-using copyrighted material.’[60] Or, if they are not ‘a ragtag bunch of gleaners’, they are that far worse subspecies – the well-salaried, comfortable, ivory tower academic who does not have to write for a living.[61]
For professional artists, the licenses are irrelevant, McDonald argues, for two reasons. First, they do not allow for the claiming of royalties, other forms of direct payment for services, or remuneration under the statutory licenses,[62] and are inconsistent with certain key kinds of commercial deals: in particular, exclusive licenses which tend to be more valuable to commercial entities.[63] According to McDonald, practicing artists should be wary of granting free licenses to people or organisations that are perfectly capable of paying a reasonable royalty or license fee. Second, professional artists cannot use Creative Commons-licensed material owing to the restrictions placed on that material.
There is some truth to this view. In the general enthusiasm for Creative Commons licensing and collaborative creation, proponents can tend to downplay other forms of creativity. It is also true that many of the early adopters of Creative Commons licenses are hobbyists, academics, and other people who make their living by means other than selling creative outputs, rather than professional artists.
However, the first point to note is that this licensing system is, as yet, relatively young. It is noteworthy that more and more public sector institutions are at least considering such licensing. The potential to unlock the vast reserves of copyright material generated by or held by these institutions could radically change the equation which the critics describe. That, however, can only be speculation at this point.
However, even to the extent that these licenses remain the preserve of the hobbyist and the academic and a few isolated professionals – the question remains: is that a problem? Is creativity to be less valued because it is not professional – and if so, why? There is a long, and venerable line of thinking which emphasises the importance of individual engagement with culture, and individual creativity.[64] Is this activity less to be valued, or called the activity of ‘mere hobbyists’?
It also seems implicit in these criticisms that creativity which uses, incorporates, and transforms existing material is somehow of lesser value than creativity which does not. Such a view is rather strange when it issues from the mouths of the representatives of the creative industries. Creative acts that incorporate, use and transform existing material are the lifeblood of the creative industries. People may not enjoy the film The Da Vinci Code, but it is a creative production despite being based on a (copyright-protected) book. Do we really think less of the scene in My Best Friend’s Wedding where everyone sings ‘I say a little prayer for you’ because it incorporates an existing song? Or do we see it as a wonderfully creative moment? No doubt some acts are more creative – and more worthy – than others. The person who copies picture, sticks a moustache on it, and then republishes it may not be particularly creative. But the pair of comedians who trawled through video clips to find enough little extracts to create a video in which President Bush and Prime Minister Blair sang of their ‘Endless Love’ are.
In addition, even if you take the view that ‘mash-ups’ are not valuable, it is not necessarily the case that these are the only kinds of access and re-use which are furthered by Creative Commons. As an organisation, it seems that Creative Commons is actually quite agnostic as to whether, in order to contribute to the public domain, a creator must allow transformative re-use (the making of derivatives). Indeed, it would seem to be implicit in the Creative Commons approach that worthwhile contributions to the public domain occur even where a work is licensed only to allow verbatim distribution (ie, the NoDerivs license).
Finally – and to be fair, some of the critics acknowledge this – many, if not most theorists who advocate Creative Commons and the kinds of production to which it applies as being something that will co-exist beside, rather than seek to replace, existing modes of production.[65]
In summary, this criticism does not seem particularly serious. It focuses on one particular form of creativity – the hobbyist mash-up – and ignores the growing interest of the public sector in using such licenses. It also seems to undervalue creativity which is not professional or which builds on existing material: a strange attitude, given the importance of creativity to human flourishing often emphasised in the copyright industries’ own literature. Finally, it seems to ignore the fact that creativity of this kind may ‘sit beside’ a professional system of creativity. The leading theorists in this area, in particular Yochai Benkler and Jack Balkin, have emphasised the fact that individual creativity and expression may sit beside, and sometimes ‘glom on’ more professional modes. They are not the less valuable for doing so.
The fifth criticism of Creative Commons is that undervalues culture and creativity. Berry and Moss, for example, accuse Creative Commons proponents of holding a ‘miserable, cramped view of culture’, because:
‘Culture is here viewed as a resource or, in Heidegger’s terms, “standing reserve”. Culture is valued only in terms of its worth for building something new. The significance, enchantment and meaning provided by context are all irrelevant to a productivist ontology that sees old culture merely as a resource for the “original” and the “new”.’[66]
A similar critique which sees this Creative Commons perspective on culture as impoverished may be found in the recent work of Anderson and Bowrey,[67] who argue that the ‘common ground’ of the Access to Knowledge (A2K) movement, the notion of information and culture as a shared ‘commons’ is imaginary; that proponents of such a view tend to ignore the history and power relations that have surrounded representations of indigenous culture in particular. On this view, knowledge, and access to knowledge, become ‘generalised public goods’. The problem, according to Anderson and Bowery, is that in many situations, unmediated, unrestricted access is not a good thing: there are real difficulties in determining how to treat access where indigenous knowledge, cultural and related artefacts and records are concerned.[68]
A further argument along these lines made by the Australian Copyright Council is that widespread use of Creative Commons licenses will lead to an overall devaluing of creative work:
‘If CC licenses become widely adopted, it is likely that an expectation will arise that – unlike, say, lawyers, accountants and IT consultants – creative people should give away their work for free. The long-term effect could be that corporations and other big organisations like universities and governments will be less willing to pay for copyright material or to see that the people who create it have much value. Meanwhile, it’s likely that real creators will have to keep doing their music, photography, film-making, art or writing as a hobby only, subsidised by their day jobs.’[69]
These criticisms are closely related to those considered in the last section. It is, perhaps, true that in the general rhetorical approach used by Creative Commons, other views of creativity are given less than full shrift. It is also possible that the proponents of Creative Commons should spend more time, and effort, acknowledging that theirs is one vision, not the only one, of creativity and how it occurs. However, this would seem to be an issue of emphasis, rather than substance. To the extent that creators are concerned that ‘universities and governments will be less willing to pay for copyright material’, it is not at all clear that that is something that government – or theorists - should be concerned about. Or, if they are concerned, it perhaps means that the artists affected, to the extent they are valued by society, should be supported by other means, including patronage.
A final criticism which must be considered is that the licenses are badly drafted, and have considerable practical issues. Recent Australian Copyright Council publications point out a particular series of issues with the licenses:[70]
1. That the Australian version of the ‘NoDerivs’ license does not in fact ban the making of derivative works;
2. That the ‘NonCommercial’ licenses in the Creative Commons suite, because they ban only uses primarily intended towards commercial advantage or monetary compensation – allow commercial uses such as reproduction in corporate gifts, calendars, publications and websites;
3. That none of the Creative Commons licenses allow an artist to prevent uses by organisations, or politicians, whose objects the artist may not support;
4. Creative Commons licenses make it much harder to police moral rights issues, owing to the absence of any direct discussion/negotiation between copyright holder and licensee;[71]
Creative Commons licenses are inconsistent with the awards and contracts that may apply in an industry: particularly in the film industry;[72]
The ‘Human-Readable Code’ – the document referred to by the Creative Commons organisation as the ‘Commons Deed’, and referred to by one critic as the ‘fluffy human readable code’ – is misleading. By attempting to simplify the license sufficient to make it human-readable, the Deed glosses over the implications of using the license;
A lot of the hype about CC licenses may not apply to an individual artist; and
They are inflexible: other licensing approaches are more flexible, and can more easily be tailored to the particular situation of an individual creator.[73]
Some of these criticisms seem justified;[74] others are far less convincing. In particular, the claim that various uses would count as non-commercial (such as playing music in a bar or hairdresser, printing an artwork on business gifts or calenders, using artwork on letterheads, or using pictures to illustrate books, magazines and other publications does seem a strangely narrow reading of when an activity should be seen as ‘primarily intended for or directed toward commercial advantage.[75] That the Copyright Council reading may be incorrect is supported by recent ‘draft guidelines’ on what counts as non-commercial produced for discussion within the Creative Commons organisation.[76] These draft guidelines suggest that the ‘Non Commercial’ term is intended to limit uses to particular kinds of users (not including for-profit companies), and to prevent uses which might be construed as advertisements. It is not at all clear that an Australian court would in fact interpret the license in accordance with this additional, external document. However, as a practical matter, if guidelines can be agreed, it would be possible to amend the licenses to incorporate the guidelines by reference to deal with this particular issue.
Another valid criticism of the Creative Commons licenses is that, at least in the ‘Lawyer-readable Code’ they follow an unfortunate, American style of contractual drafting. If these licenses are any guide, it would appear that the trend toward plain English drafting which has been so influential in Australia and the United Kingdom has passed the United States by.
To the extent that these criticisms are well-founded – and some are better founded than others – they do need to be dealt with. But looking at them, none appear to be fatal, or a cause for rejecting the Creative Commons licenses altogether.
So far, this paper has discussed a series of critiques of the Creative Commons model and movement. As will be noted, some of the critiques here considered are more serious than others. Some raise issues which could fruitfully be dealt with in a future drafting round, others (particularly the philosophical issues) will never be dealt with entirely satisfactorily. In this last part of the paper, however, I wish to comment, briefly, on the issue of scaleability.
What we are seeing, in very recent times, is the increased interest in Creative Commons or other open content licensing by public sector institutions. Institutions in the United Kingdom have considered such licensing,[77] as have universities, and presentation titles in this very conference suggest a broader interest by various government bodies.
These developments are interesting, because Creative Commons was not really designed for this use. In large part, the whole Creative Commons system is designed with the aim of making it easier for individuals to licence their creative outputs so that others can enjoy, re-use and build on them:[78] whether ‘sequentially’ (with one person accessing another’s work, and perhaps transforming it), or as part of larger-scale, collaborative projects made up of contributions from multiple individuals (an example of such a project being Wikipedia, the online encyclopaedia).[79] The founders of Creative Commons took the view that there should be an easy-to-use system established to facilitate such creativity.
In order to think about whether it is sensible for government bodies or other public sector institutions to use Creative Commons, we actually have to move beyond all of the critiques already considered. Most of these critiques are founded on the assumption that that method of licensing is aimed at individuals and individual choices about terms. The philosophical concerns arise because commentators are concerned that individuals will make restrictive choices and become too accustomed to licensing – this is not really an issue for institutions, where issues of licensing and IP management are likely to be ingrained. The concern about overlawyering, too, is hardly a significant issue when we are talking about large bureaucracies with good legal advice. The argument that Creative Commons is just about parasitic forms of creativity hardly applies once we consider institutions making material available.
In other words, institutional use raises a whole new set of issues. These may end up being less serious, or more serious, than the ones we’ve been talking and arguing about – but they are new. The issues are of two kinds: practical, and (once again), philosophical.
Looking at the discussions within the Common Information Environment, and within institutions such as MIT which have adopted open content policies on a large scale, we can see that the practical issues relating to such licenses are considerable. Open licensing in the public sector is a work in progress. Most uses of such licenses are either at the proposal stage, or relatively new. Many different models are being tried; many vary the standard Creative Commons licenses. Few have been subject to evaluation as to their success. It follows that questions remain as to the best system for licensing. Moreover, if the MIT example is anything to go by, the institutions and entities using open licensing have had to establish management systems to deal with a whole range of matters that arise when a project for digitisation and/or open access project is commenced: identifying material for open access, identifying and managing third party IP, ensuring or encouraging inclusion of material in open access repositories, and creating systems for prospective users to identify the available material. The licenses, and license terms used cannot be seen in isolation from the system: indeed, they are only a small part of the process.
As for the philosophical issues: it seems to me that the issue we need to discuss, here, is: why licenses? Why (given some of the very real concerns about license proliferation, complexity, information costs and the like), in an area where there is material access to which we want to maximize – are we talking about licensing at all? Why aren’t we talking about legal or regulatory reform: to remove copyright, or grant broad rights of dissemination and publication of, for example, government copyright material? Here, it seems to me, a license does nothing that removal or restriction of copyright tcould not do, and in fact adds costs and uncertainty: because it can be revoked, because terms can be added, because different terms might be applied by different governments. As LexisNexis once put to the CLRC, a licensing policy:
“would only successfully meet the public policy goals and other objectives identified above if the license was fee free, the government had no discretion, and no negotiation was required.”
Frankly, that’s an amendment to the law we’re talking about.
As a kind of work in progress (like Creative Commons licensing itself), the conclusions to this paper must remain, to some extent, open. I have attempted, in this paper, to think systematically through some of the most common critiques of Creative Commons licensing that we see in the literature, and to explore some of the answers to those critiques. In doing so, I have sought to indicate, in a preliminary way, which of those critiques seem most compelling on examination. None, it seems to me, militate against Creative Commons licensing per se, many indicate that careful thought should be given before embarking on such licensing. But to me, perhaps the most striking implication that arises from this review is that we have not really yet thought about whether the issues are different for public sector institutions and governments, or how increased public sector use might change the landscape for such licensing. Given current trends, and the presenters at this conference, it seems to me that that is the discussion we need more urgently to have.
[*] BA, LLB (Hons) BCL (Oxon) LLM (Yale), Associate Director, Intellectual Property Research Institute of Australia and Lecturer, University of Melbourne Law School.
[1] Sympathy: Conformity of feelings, inclinations, or temperament, which makes persons agreeable to each other; community of feeling; harmony of disposition; the quality or state of being affected by the condition of another with a feeling similar or corresponding to that of the other; the fact or capacity of entering into or sharing the feelings of another or others; fellow-feeling. Scepticism: doubt or incredulity as to the truth of some assertion or supposed fact. Also, disposition to doubt or incredulity in general: Oxford English Dictionary.
[2] Niva Elkin-Koren, ‘Exploring Creative Commons: A Skeptical View of a Worthy Pursuit’, in P. Bernt Hugenholtz and Lucie Guibault (eds) The Future of the Public Domain (Kluwer Law International, forthcoming 2006), from manuscript available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466
[3] Intrallect Ltd and AHRC Research Centre for Studies in Intellectual Property and Technology Law (2005) Final Report to the Common Information Environment Members of a study on the applicability of Creative Commons Licences: http://www.intrallect.com/cie-study/CIE_CC_Final_Report.pdf
[4] The Creative Archive license, described in Intrallect, ibid.
[5] For a summary of Creative Commons, Catherine Bond’s paper in this conference is useful. For generally enthusiastic treatment of Creative Commons, see Robert Merges, ‘A New Dynamism in the Public Domain’ (2004) 71 U Chi. L Rev. 183. See also in Australia the writings of Brian Fitzgerald, one of the driving forces within the Australian Creative Commons movement.
[6] Eg Yochai Benkler, The Wealth of Networks (Yale UP, 2006), 455; Kathy Bowrey, Law and Internet Cultures (Cambridge UP, 2006), 166.
[7] Ralph H. Turner, and Lewis M. Killian. Collective Behavior. Englewood Cliffs, N.J.: Prentice Hall, 1972, 1987, p. 223. See similarly Doug McAdam, who defines social movements as ‘those organized efforts, on the part of excluded groups, to promote or resist changes in the structure of society that involve recourse to noninstitutional forms of political participation’. See also Herbert Blumer. "Collective Behavior," in Robert E. Park, ed. An Outline of the Principles of Sociology. (New York: Barnes and Noble, 1939), at 199 (‘Social movements can be viewed as collective enterprises to establish a new order of life. They have their inception in the condition of unrest, and derive their motive power on one hand from dissatisfaction with the current form of life, and on the other hand, from wishes and hopes for a new scheme or system of living’).
[8] By the money of lobby groups employed by the IP industries: on the political economy of intellectual property rights in general, and the public choice argument raised in this context, see William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Harvard University Press (Belknap), 2003) Chapter 15, pp403-419.
[9] Again, by the intellectual property industry lobbies, including Hollywood, the Record Industry and the Pharmaceutical Industry. “Captured”, here, is really just another way of saying “corrupt”, but more polite. See Landes and Posner, above n6.
[10] It has often been noted just how hard it is to get legislative change through the US Congress if some stakeholder group – particularly any important industry – sees itself as being disadvantaged. This is because the large number of ‘veto gates’ – chokepoints at which a veto can be exercised thus preventing legislation passing to the next stage of the enactment process – through which any proposed legislation must pass. Industry lobby groups can exercise pressure at each ‘veto gate’ – they can seek to have a bill sent to an unsympathetic Congressional Committee; they can seek to hold the bill up in Committee – even before they try to make sure it doesn’t pass through one or other of the House and Senate. On ‘veto gates’, see McNollgast (Mathew D. McCubbins, Roger Noll & Barry R. Weingast), ‘Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation’ (1994) 57 Law & Contemp. Probs. 3, 22.
[11] Niva Elkin-Koren, ‘Exploring Creative Commons: A Skeptical View of a Worthy Pursuit’, in P. Bernt Hugenholtz and Lucie Guibault (eds) The Future of the Public Domain (Kluwer Law International, forthcoming 2006), from manuscript available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466, at page 8
[12] Creative Commons website, History of Creative Commons, at http://creativecommons.org/about/history.
[13] Lawrence Lessig, Free Culture (2004), 283-284.
[14] In particular, Code and Other Laws of Cyberspace (2000); The Future of Ideas (2002), and Free Culture (2004). Elkin-Koren notes that ‘Lessig’s triology set the ideological foundation of Creative Commons, and Free Culture could be thought of as its manifesto.’: Elkin-Koren at 8.
[15] See Niva Elkin-Koren, ‘Exploring Creative Commons: A Skeptical View of a Worthy Pursuit’, in P. Bernt Hugenholtz and Lucie Guibault (eds) The Future of the Public Domain (Kluwer Law International, forthcoming 2006), from manuscript available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466 at 8-9.
[16] Reticulum Rex (the second video on Creative Commons) (emphasis added). The first video, Get Creative, is written in similar style: ‘If the Big © is like a red light, then CC is a green light. If the Big © says ‘No Trespassing’, CC says, ‘Please Come In’. If the Big © says ‘All Rights Reserved’, CC says, ‘Some Rights Reserved’. So you can use the powers of the Net to find works, free to share and build upon. And to invite people to transform or trade yours, so that you can get creative – not only with what you make, but how you make it available; so you can collaborate across space and time; so you can be a co-author with someone you’ve never met; so you can stand on the shoulders of your peers – all without asking permission. Because permission has already been granted. Creative Commons. Get Creative. It’s easy when you skip the intermediaries.’ As an aside, given these texts, it is not particularly surprising that those the well-established intermediaries of the Australian market – the collecting societies such as CAL, APRA and others – have not reacted with enthusiasm towards Creative Commons Licensing.
[17] See generally Dan Hunter, ‘Culture War’ (2005) 83 Tex L Rev 1105 (somewhat facetiously calling the Lessig-Benkler-Vaidyanathan arguments ‘Marxist-Lessigism’ (although denying the real revolution comes from their arguments)). For an example of the rhetoric sometimes leveled against Creative Commons and the like, see Michael Fraser, ‘Information wants to be free?’, paper presented at the Biennial Copyright Symposium, 17 November 2005, available at http://www.copyright.com.au/reports%20&%20papers/Copyright_symposium_2005.pdf.
[18] Eg Ian McDonald, ‘Creative Commons licenses for visual artists: a good idea?’, Australian Copyright Council Article, February 2006, available at http://www.copyright.org.au/pdf/acc/articles_pdf/a06n04.htm; Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006).
[19] As Tom Chance has noted, learning about the basics of Creative Commons is easy – ‘there are a variety of wonderful web pages and videos that explain it to newcomers’. But ‘the learning curve required to responsibly license your work, understanding all of the consequences, is immense.’ – and here, in my own view, the information on the Creative Commons site does tend to let the individual down. Tom Chance, ‘Remix Culture: Issues surrounding re-use in Creative Commons licenses’, Free Software Magazine, Issue 6, July 2005.
[20] See also Elkin-Koren, ‘What Contracts Can’t Do: The Limits of Private Ordering in Facilitating a Creative Commons’ (2005) 74 Fordham Law Review (forthcoming), manuscript at 38 (noting that ‘the only practice Creative Commons persistently promotes is letting individuals govern their works.’).
[21] For example, under Australian law, the copyright offences (situations where copyright infringement is a criminal act) are limited, generally, to commercial acts. However, the criminal provisions also drafted in a way so as to capture acts which give rise to infringement ‘to an extent that affects prejudicially the owner of the copyright’ (Copyright Act 1968 (Cth) s 132(2)(b)), and conduct which results in one or more infringements which ‘have a substantial prejudicial impact on the owner of the copyright’ and ‘occur on a commercial scale’ (taking into account volume of infringements and value): Copyright Act 1968 (Cth) s 132(5DB). The same general position pertains in the US as a result of the No Electronic Theft Act.
[22] Creative Commons website, Frequently Asked Questions, at http://creativecommons.org/faq.
[23] In the BBC Creative Archive License, ‘non-commercial’ means ‘personal use or use for educational purposes within any educational establishment listed in Annexe A, but excludes any commercial use (including professional, political or promotional uses’): see at http://creativearchive.bbc.co.uk/license/nc_sa_by_ne/uk/prov/.
[24] Who could forget the cinema and television advertisements produced by the Australian Federation Against Copyright Theft (AFACT) in Australia in 2004, which used a script along these lines: ‘You wouldn’t steal a car --You wouldn’t steal a handbag--You wouldn’t steal a television--You wouldn’t steal a movie--Downloading pirated movies is stealing--Stealing is against the law--Don’t buy into it: Movie Piracy: it’s a crime. Report it.’.
[25] This recommendation is consistent with the view expressed in Intrallect, Intrallect Ltd and AHRC Research Centre for Studies in Intellectual Property and Technology Law (2005) Final Report to the Common Information Environment Members of a study on the applicability of Creative Commons Licences
http://www.intrallect.com/cie-study/CIE_CC_Final_Report.pdf. This report was done in order to explore the applicability of Creative Commons licenses to public sector organizations in the United Kingdom. While coming out in favour of the licenses, it came out with a series of recommendations, including a recommendation that organizations should raise awareness of the issues through workshops and briefing papers, and create best practice guides for use and licensing.
[26] David M. Berry and Giles Moss, ‘On the “Creative Commons”: a critique of the commons without commonalty’, Free Software Magazine, Issue 5, June 2005, at 1-2, available at http://www.freesoftwaremagazine.com/free_issues/issue_05.
[27] Niva Elkin-Koren, ‘Exploring Creative Commons: A Skeptical View of a Worthy Pursuit’, in P. Bernt Hugenholtz and Lucie Guibault (eds) The Future of the Public Domain (Kluwer Law International, forthcoming 2006), from manuscript available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466 at 9, 10.
[28] Niva Elkin-Koren, ‘What Contracts Can’t Do: The Limits of Private Ordering in Facilitating a Creative Commons’ (2005) 74 Fordham Law Review (forthcoming), manuscript at 22
[29] Elkin-Koren, above n2 at 10
[30] Larry Solum, ‘Book Review: The Future of Copyright’ (2005) 83 Tex L Rev 1137, at 1141-1142. As Solum notes, Lessig refers in the same breath to free speech, free markets, free trade, free enterprise, free will, and free elections. It is quite obvious that there are many different meanings of ‘free’ happening here: Lawrence B. Solum, ‘Book Review: The Future of Copyright’ (2005) 83 Tex L. Rev. 1137, 1142. Solum rightly notes that the passage – and in particular, the use of language in this passage, reveals the technique of the book: its reliance in particular on rhetoric, not rigor.
[31] Ibid at 13.
[32] Note here the contrast that may be drawn between Creative Commons on the one hand, which seeks to address ‘the public at large’, and which relates to all kinds of different types of creativity and actors, and the Open Source Movement on the other hand, which addresses a smaller, more homogenous group of individuals and only one kind of creative output. Even in the open source area, there have been challenges in reaching a shared ‘vision’ (there are distinctions to be drawn between the more ‘political/idealist’ vision of the Free Software Movement and Richard Stallman and the more business oriented perspective of the Open Source proponents on the other): but the challenges are likely to be far greater within the field sought to be covered by Creative Commons. [[**] *need some references
[33] Ibid at 14, citing statistics from the Creative Commons website as at July 2005. As Elkin-Koren notes, at that time, it would seem that over 50% of users of the license were choosing ShareAlike terms, which requires that authors make their material available on identical terms. The effect of such a term is to limit the options for the user considerably, and, perhaps, to entirely preclude professional artists from using such material (see Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006). In addition, almost a third of authors use a NoDerivs license, which allows only distribution ‘as is’, and no transformative use. See generally Anupam Chander and Madhavi Sunder, ‘The Romance of the Public Domain’ (2004) 92 California Law Review
[34] Bob Wyman, Weblog post on As I May Think, 24 March 2005, available at http://bobwyman.pubsub.com/main/2005/03/lazyweb_query_a.html.
[35] Ian McDonald, ‘Creative Commons licenses for visual artists: a good idea?’, Australian Copyright Council Article, February 2006, available at http://www.copyright.org.au/pdf/acc/articles_pdf/a06n04.htm
[36] It might be argued that the developments outlined in this paragraph encourage people only to see commercial works as ‘property’, but that Creative Commons extends that reasoning to anything creative that a person produces. Given more active engagement with culture online, however, I doubt the difference is more than minimal.
[37] This has been particularly controversial recently in Canada, where ‘Captain Copyright’, a cartoon figure developed by Access Copyright (the Canadian equivalent of CAL) to teach copyright to schoolchildren has been a much maligned figure.
[38] See Elkin-Koren, above n2 at 20.
[40] In theoretical terms, however, there is room for serious doubt whether mere access is sufficient. Much of the literature on the public domain talks about the importance of allowing exercises of the creative imagination: see, for example, David Lange, ‘Reimagining the Public Domain’ (2003) 66 Law & Contemp Probs 463, 466 (noting that ‘… what moved me no less was a concern for those who … might be driven by pure need towards transient episodes of creative expression neither intended nor likely to find any public outlet’); Dan Hunter, ‘Culture War’ (2005) 83 Texas Law Review 1105, 1135 (talking about ‘the degree of autonomy we accord to individuals to create’).
[41] Lawrence Lessig, Free Culture, above n11 at 304-306.
[42] See eg Chris Sprigman, “Reform(aliz)ing Copyright”, Forthcoming Stanford Law Review, at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=578502>; L. Ray Patterson, “What’s Wrong with Eldred? An Essay on Copyright Jurisprudence” (2003) 10 J. Intell. Prop. L. 345, 352 (referring to the removal of such formalities as a‘trojan horse’); William
[43] David M. Berry and Giles Moss, ‘On the “Creative Commons”: a critique of the commons without commonalty’, Free Software Magazine, Issue 5, June 2005, at 3, available at http://www.freesoftwaremagazine.com/free_issues/issue_05. As they note, while the Free Software movement also uses a ‘license’, ‘[a]t least Richard Stallman and his ingenious GNU General Public License (GPL) is honest in claiming to be an ethical rather than purely legal force. … The GPL is based on a network of ethical practices that continually (re-)produce its meaning and form. The commons is always more than a formal legal construct’.
[44] Kathy Bowrey, Law and Internet Cultures (Cambridge UP, 2006), 166-167.
[45] Creative Commons itself has identified the ‘idealist’ as one of four types of users of Creative Commons licenses: see for example the argument in the Creative Commons submission to the Australian Competition and Consumer Commission on the re-authorisation of APRA, dated 7 October 2005, available at http://www.law.qut.edu.au/files/ACCCFinal31.pdf (pp4-5). Lessig, too, refers to the people ‘who mark their content with a Creative Commons license just because they want to express to others the importance of balance in this debate’: Free Culture at 285. This attitude towards CC licensing was exhibited in a debate that occurred on a number of Australian blogs – including my own – in 2004 [[**] *references required]. My own attitude, at least, was that placing a Creative Commons license on the blog content was a statement about my attitudes towards copying, and a request for ethical practice in relation to the blog. Obviously, this story falls into the category of ‘highly anecdotal’, and I am in danger of extrapolating too much from my own experience. A rigorous consideration of the issues would require more detailed studies of motivations of users of the licenses: a study which has not, so far as I am aware, been done at this point.
[46] Kathy Bowrey, Law and Internet Cultures (Cambridge UP, 2005), 165.
[47] For example, the Open Source Initiative has chartered a special advisory committee on License Proliferation: see here: http://opensource.org/docs/policy/lpcharter.php. Lawrence Rosen, whose work on open source licensing is well known, has also written a brief paper on License Proliferation, in which he identifies the issue as “an important problem” for open source software: Lawrence Rosen, ‘License Proliferation’ (2005), available at http://www.rosenlaw.com/LicenseProliferation.pdf.
[48] Elkin-Koren gives the example of the EFF, who recommended Creative Commons licenses over the EFF’s own license, because they ‘believe[d] in consistency in licensing and the CC licenses’ machine-readable code will help both listeners and creators to find and combine works more easily’: Elkin-Koren, above n2 at 17, quoting EFF, Open Licenses, at http://www.eff.org/IP/Open_licenses/. The MIT also abandoned their own license previously used on their Open CourseWare project, to adopt a Creative Commons license: see The MIT OpenCourseWare Story, available from http://ocw.mit.edu, at 10.
[49] Thomas W. Merrill and Henry E. Smith, ‘The Property/Contract Interface’ (2001) 101 Colum. L. Rev. 773; also Thomas W. Merrill and Henry E. Smith, ‘Optimal Standardisation in the Law of Property: The Numerus Clausus Principle’ (2000) 110 Yale L. J. 1
[50] Rosen, above n39 (‘Imagine a world in which every word processing program created documents in its own internal format that could not be accessed directly by other word processing programs … Similar things also happen with free and open source software: combining differently licensed software in useful ways is constrained by the terms of their licenses.’)
[51] See Tom Chance, above n17.
[52] Note that even with the elements currently offered, the Australian Copyright Council has criticized Creative Commons for being inflexible: Australian Copyright Council, above n16.
[53] David M. Berry and Giles Moss, ‘On the “Creative Commons”: a critique of the commons without commonalty’, Free Software Magazine, Issue 5, June 2005, at 3, available at http://www.freesoftwaremagazine.com/free_issues/issue_05
[54] Australian Copyright Council, above n16 (noting that the system (particularly in Australia) is not flexible.
[55] Worth exploring is Rosen’s idea that we should be looking, not to limit the licenses necessarily, but to deal with the issues in a systematic way, by documenting differences and picking common ways to express particular rights or permissions: Rosen, above n39
[58] The Free Software Foundation suggests that persons contemplating writing a new license contact them, since ‘the proliferation of different free software licenses means increased work for users in understanding the licenses; we may be able to help you find an existing Free Software license that meets your needs.’: Free Software Foundation, Licenses, at http://www.fsf.org/licensing/licenses/.
[59] Ian McDonald, ‘Creative Commons licenses for visual artists: a good idea?’, Australian Copyright Council Article, February 2006, available at http://www.copyright.org.au/pdf/acc/articles_pdf/a06n04.htm
[60] Stephen Manes, ‘Let’s have less of Lessig’, in Forbes Magazine, 4 February 2004, available at www.forbes.com/2004/04/02/cz_sm_0402manes_print.html
[61] A particularly strong articulation of this criticism may be found a the paper of Michael Fraser, CEO of the Copyright Agency Limited (CAL), the body which manages the statutory copying licenses for literary works in Australia: ‘Information wants to be free?’, paper presented at the Biennial Copyright Symposium, 17 November 2005, available at http://www.copyright.com.au/reports%20&%20papers/Copyright_symposium_2005.pdf. Similar views may be seen in Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006) at 9 (commenting that ‘the licenses may be of some use to … people like academics, who have well-paying day jobs, and who have become used to giving away copyright in the articles they write to multinational publishers in order to promote their careers. (It’s probably therefore no coincidence that a lot of the people involved in promoting CC licenses are academics!)’).
[62] Ian McDonald, ‘Creative Commons licenses for visual artists: a good idea?’, Australian Copyright Council Article, February 2006, available at http://www.copyright.org.au/pdf/acc/articles_pdf/a06n04.htm, at 3. See also Association Littéraire et Artistique Internationale (ALAI), Memorandum on Creative Commons Licenses, January 2006, at 2 (noting this as the first, key thing an author should be aware of in choosing a Creative Commons license). The general tone of this latter document is less critical than the Copyright Council documentation. ALAI advocate an approach of caveat auctor, the Copyright Council on the other hand views Creative Commons as downright misleading.
[63] Association Littéraire et Artistique Internationale (ALAI), Memorandum on Creative Commons Licenses, January 2006, at 2.
[64] See for example sources quoted above n40.
[65] See for example Yochai Benkler, The Wealth of Networks (Yale UP, 2006) (in which Benkler discusses a ‘third mode’ of production – commons-based peer production. See also Jack Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’ (2004) 79 N.Y.U. L. Rev. 1. These two differ: Balkin has argued that the networked information culture is ‘layered on top of industrial forms’ – such outputs ‘glom on’ outputs of the industrial information economy as material for bricolage (see also critics of Creative Commons in Australia, like Ian McDonald, who argue that the material most likely to be wanted for transformative use will not be licensed under Creative Commons: McDonald, above n16). Benkler, on the other hand, is less certain: he argues that ‘as the proportion of culture that is generated in the network and through social production increases in quantity, quality, and salience, social production will in turn be able to increasingly rely on its own resources for generating new subjects, themes, judgments of worth, and identity attachments and enactments.’ This debate was ‘engaged’ in a recent ‘seminar’ on Benkler’s book on the group blog Crooked Timber: available at http://www.henryfarrell.net/files/benkler_seminar.pdf.
[66] David M. Berry and Giles Moss, ‘On the “Creative Commons”: a critique of the commons without commonalty’, Free Software Magazine, Issue 5, June 2005, at 2, available at http://www.freesoftwaremagazine.com/free_issues/issue_05. See also Niva Elkin-Koren, ‘Exploring Creative Commons: A Skeptical View of a Worthy Pursuit’, in P. Bernt Hugenholtz and Lucie Guibault (eds) The Future of the Public Domain (Kluwer Law International, forthcoming 2006), from manuscript available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466, arguing (at 12) that the Creative Commons system sees creative works as simply ‘commodities’, ‘chips to be traded, rather than ideas to be shared’.
[67] Jane Anderson and Kathy Bowrey, ‘The Imaginary Politics of Access to Knowledge: Whose Cultural Agendas are Being Advanced?’, Paper presented at the Con/Texts of Invention Conference, Case Western Reserve University, Cleveland, Ohio, April 2006.
[68] The Anderson/Bowery argument is far more subtle and detailed than this. It might be fairer to characterize their view as suggesting that the A2K movement commits a sin common to historical (and imperial) treatments of indigenous culture and knowledge: characterizing them as differentiated by ‘culture’, but also characterizing them from an outsider perspective, rather than on indigenous terms. It is sufficient, for the purposes of this paper, to note the basic truths that Anderson and Bowery expose regarding Creative Commons: that it papers over the subtleties of different kinds of information; it treats access to and distribution of information as unqualified goods, and that, like historical IP law, it treats creative works as resources on which everyone should be able to build: a notion inconsistent with many indigenous views of culture. On these issues, see also Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006) at 9 (arguing that ‘the CC licenses are “tone deaf” to the special concerns [an indigenous creator] may have about letting people use material that contains sacred, secret or otherwise sensitive material.’).
[69] Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006) at 6.
[70] Ian McDonald, ‘Creative Commons licenses for visual artists: a good idea?’, Australian Copyright Council Article, February 2006, available at http://www.copyright.org.au/pdf/acc/articles_pdf/a06n04.htm
[71] Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006), at 7-8. The ACC further argues that ‘the fact that you have licensed your work under a CC license may make it reasonable for people to do things such as change your work, or reconfigure it, or use only small parts, making it difficult for you to argue that your moral rights have been infringed.’: at 8.
[72] Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006) at 8.
[73] Australian Copyright Council, Information Sheet G094: Creative Commons Licenses (May 2006)
[74] It does indeed seem to be the case that the NoDerivs Australian license does not ban derivative works: a fact which must be put down to drafting oversights.
[75] Such a reading is clearly out of step with the intended drafting, and would seem to confine ‘primarily intended for or directed toward commercial advantage’ only to those situations where the user is selling copies of the copyright-protected material.
[76] The draft guidelines are available at http://lists.ibiblio.org/pipermail/cc-licenses/attachments/20060110/02d7a271/NonCommercialGuidelinesclean-0001.pdf. While such guidelines are clearly not determinative of the meaning of any terms in the Creative Commons licenses, they are at least indicative of what is intended.
[77] See Intrallect Report, above n3.
[78] See Lawrence Lessig, Free Culture (2004), 282-286.
[79] Both individual and collaborative access to and contributions to knowledge are important to the Creative Commons movement: see generally Lawrence Lessig, Free Culture (2004). Since the movement takes its inspiration in particular from the open source movement, collaborative creativity has been emphasised, as a form which particularly takes advantage of developments in networked technology: see generally Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press: 2006).
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