Creative Commons: IMPACT guide to the essentials

Whilst still in his role as an IMPACT® lawyer, Andrew Mills wrote an overview of Creative Commons for the October/November 2007 issue of Computers & Law. What follows is an IMPACT®  guide on Creative Commons, based on Andrew's article.

Creative Commons (CC) is a Massachusetts-based charitable corporation. In CC’s own words, its mission is:

‘To build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules’.

It’s a little like the open-source or free software movements, but without being limited to software. 

Concepts behind Creative Commons
The CC licence tools let copyright holders grant some of their rights to the public whilst reserving other rights for their own use. However, before exploring the different licensing mechanisms, let’s consider the legal concepts that underlie CC’s approach. The concepts are:

• the public domain
• the commons
• open content
• intellectual property conservancies.

The public domain
The idea of the ‘public domain’ in the context of copyright is much a United States’ concept. Simply put, things in the public domain are available for anyone to use.

The idea is rooted in the US because before the US Copyright Act 1976 copyright did not attach to works unless the author affixed a copyright notice. In other words, copyright did not arise automatically; the author of the work in question had to take a positive step to get it. The UK law has provided automatic protection for works since long before that time.

In CC’s view, the idea of automatic protection closes the door to lots of materials that might otherwise be available to the public, either completely or at least in part.

The commons
If we were considering the physical environment, the commons would be like the parks and streets. Unlike those physical things that might get worn-out or damaged the more that they are used by the public, that problem doesn’t exist in the world of copyright.

We are familiar in copyright with the notion that there is no copyright in an idea but there is in the expression of that idea. CC’s intention is to try and help foster a growing body of different copyrights (i.e. not just mere ideas but expressions of ideas) out there for anyone to use freely, whether they are words or images or sounds.

Open content
This is the ‘open source’ materials and other material that are available for use in certain circumstances by anyone without payment of any royalty or needing further permission. Classic materials here would be open source software made available under the GNU General Public Licence.

Intellectual property conservancies
CC sees itself as kind of curator, helping to protecting and care for certain works to make sure that they remain available to the public and do not fall into the hands of potentially nasty exploitative private owners.

What are the CC tools?
CC’s first tools were a set of licences created at the end of 2002 and made available free for public use. The good thing that CC has done, though, is to simplify the idea of licensing into core elements and then provide a range of licences that address those elements.

If someone wants to make their copyright works available to the public, they will need to consider the following issues:

• Attribution: how the author wants others using their work to credit them;
• Commercial use: whether to restrict use to non-commercial activity only without express further permission;
• Derivative works: whether to allow others to only use the whole work or allow them to create derivatives based upon it;
• Share alike: if the author allows derivative works, he or she might want also want others to offer their derivative works back to the public on the same terms as applied to the works made available in the first place.

As a result of these issues, there are a set of six basic licences. However, before looking at these variations, it is important to appreciate that each licence carries a set of ‘minimum terms’. These are:

• The licensor retains ownership of copyright but that ownership does not restrict freedom of expression or fair use rights
• Restrictions on licensees
  • they must seek permission to do any of the restricted acts
  • they must reproduce intact the copyright notice
  • they must link to the original work
  • they must not change the licence terms
  • they must not restrict other licensees' lawful use of the work
• Rights for licensees
  • they may copy, distribute, play or perform the works in public (the core acts normally restricted by copyright)
  • they may translate the work to another format as an exact copy
• Scope & duration
  • worldwide applicability
  • irrevocable
  • lasts for the duration of the copyright

Readers familiar with software licensing will recognise the issues as being those types of issues one might expect to consider in a licence.

What are the standard CC licences?

• Attribution Non-commercial No Derivatives (‘by-nc-nd’). This is the most restrictive licence. CC says this is the ‘free advertising’ licence because it allows downloading, distribution and linking but not more.
• Attribution Non-commercial Share Alike (‘by-nc-sa’). This allows every thing that the previous version allows, but also the creation of derivative works on the basic that the licensee makes those derivative works available to the public under a by-nc-sa licence too.
• Attribution Non-commercial (‘by-nc’). Slightly less restrictive than the previous version, this allows any non-commercial use provided that there is attribution but licensees do not have to make derivatives available on the same terms.
• Attribution No Derivatives (‘by-nd’). This allows commercial and non-commercial use subject to attribution but does not allow the licensee to create derivatives.
• Attribution Share Alike (‘by-sa’). Almost the least restrictive licence, this allows any use by the licensee, subject to credit to the licensor and provided that derivative works are made available to the public under a similar by-sa licence.
• Attribution (‘by’). The least restrictive licence: allows any use, including commercial and derivative creation, by the licensee subject to attribution to the licensor.

CC also offers a small selection of more specialised licences, including:

• Sampling licences. Both versions of this licence allow for re-use of bits of a whole work. One version allows for any use other than in advertising and the other restricts use to non-commercial activity.
• Public dedication. In effect, throwing off the legal constraints of copyright and allowing anyone to use your work for any purpose whatsoever. The copyright equivalent, perhaps, of donating your body to science in your will.
• Founders licence. Like a public dedication of copyright works, but only after a 14 or 28 year period. This actually works as a sale-and-licence back with an exclusive licence to the author for a 14 year period with the option to extend to 28 years. The durations used here reflect those in the US’s first copyright law in 1790.
• Music sharing licence. Aimed at unsigned or pro-fan musicians, it allows for downloading, file-sharing, copying and web-casting provided none are for commercial purposes. Together with registration of ‘who to contact for commercial rights’ at Common Content, this is a great tool for the self-publicist.

International aspects

The CC licences were originally drafted with US law in mind. Naturally, this has lead to the concerns about enforceability and interpretation in other countries. With this in mind CC has been producing local law versions and now has versions covering 38 legal jurisdictions, including England & Wales and Scotland. In general, though, only the six basic variations have been ‘ported’ in each case. There are eight more jurisdictions due for completion before the end of 2007 and more targets on the list.

Flavours

There are now further projects and target sectors upon which CC is turning its attention. These are all part of its idea of ‘the commons’:

• Science Commons. According to it’s website, ‘Science Commons serves the advancement of science by removing unnecessary legal and technical barriers to scientific collaboration and innovation’
• ccLearn. A project of CC to promote open learning and educational resources.
• ccMixter. A site dedicated to music re-mixes licensed under a CC licence.

Comments

[Jordan]

Great to see this! You knew I would have to drop in and make a comment...

I would take one small issue with the idea that "the ‘public domain’ in the context of copyright is much a United States’ concept."

While the UK, it is true, has not had registration for a long time, and the US kept it until recently, the public domain is very much a concept inherent in all copyright law -- from the Statute of Anne forward. It is, in terms of copyright law, the state of not having a copyright (though there have been recent suggestions to restructure the PD as a positive concept). Copyright in every system expires, thus I don't think it is a US concept at all, or even that related to registration. It is inherent in the idea that copyright is a limited right. Now that of course starts to differ when you start thinking about moral rights.

And one other related point:

"The idea is rooted in the US because before the US Copyright Act 1976 copyright did not attach to works unless the author affixed a copyright notice. In other words, copyright did not arise automatically; the author of the work in question had to take a positive step to get it."

To clarify, it was the Berne Convention Implementation Act of 1988 that dropped the notice requirements -- notice was still required after the 1976 revision.

I think that the bigger picture of the CC arguments are more about applying copyright in a digital world rather than the idea that "automatic protection closes the door to lots of materials that might otherwise be available to the public, either completely or at least in part."

The problem is that the digital context has lots more potential for regulating activities by copyright that were previously unregulated because of practical impossibility. All of this (digital copyright) has led to a chilling effect because of the burden of having to seek permission from the rightsholder when, as they see it, there is lots of value in giving permission right up front.

Thanks!

[Alex]

Hi Jordan

Thanks for your comments! I'll see that the guide is updated to deal with the points you make

Alex