Creative Commons: Copyright Tools for the 21st Century
By Laura Gordon-Murnane
How up-to-date are you when it comes to copyright law? Copyright laws in the U.S. have been around since 1790, but two 20th-century revisions, coupled with the internet’s fostering of a read/write culture, have had a significant impact on the use, reuse, and distribution of digital media and content in this century. They’ve also helped initiate a new category of copyright protection. It’s called Creative Commons.
CHANGES IN U.S. COPYRIGHT LAW
The Copyright Act of 1976 eliminated the prior requirement that authors register their work with the Copyright Office. Now, your every doodle, napkin sketch, and home video has copyright protection the minute you finish your creation. That’s change number one.
Second, the Copyright Term Extension Act (CTEA) of 1998, also known as the Sonny Bono Copyright Term Extension Act, lengthened copyright terms in the United States by 20 years. According to the Library of Congress, in its “Copyright Basics” publication, work that was “created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death.” For works made for hire—in other words, corporate works—and “for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter” (www.copyright.gov/circs/circ01.pdf). These two changes have had, and will continue to have, a significant impact on the availability of content created during the 20th and 21st centuries.
How so? Works made in or after 1923 and still under copyright in 1998 “will not enter the public domain until 2019 or afterward (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again.” Furthermore, works “created before January 1, 1978 but not published or registered for copyright until recently may remain protected until 2047” (www.copyright.gov/circs/circ01.pdf). Consequently, much of this content—text, books, magazines, pictures, films, music, audio, and video—cannot enter into the public domain until well into the 21st century.
LOCKING AWAY CULTURE
These changes to U.S. copyright laws coincided with the internet taking off and the beginning of a transition away from a read/only culture to a read/write culture. For most of the 20th century, culture—books, records, and movies—came in a single format—an analog format. You could purchase records and books, but the format prevented easy copying and the copy was rarely of equivalent quality to the original. However, the development of digital tools made it both simple and inexpensive to make digital copies that are, well, perfect. The new digital technologies enable individuals to share, remix, mash up, collaborate, adapt, and create something new and different.
Although digital technology encourages copying, the enthusiasm to create new cultural materials based on what came before is hardly a new phenomenon. Some of the greatest composers of all time borrowed ideas from each other—Beethoven borrowed from Haydn, Bach from Corelli, and Leonard Bernstein from Shakespeare (West Side Story). Isaac Newton hit it on the head when he stated that we all stand on the shoulders of giants.
Today, cultural media of the 20th century is largely off limits, locked away from the public domain. As James Boyle remarks in his The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008; www.thepublicdomain.org), most of the culture of the 20th and 21st century is “lost culture.” Furthermore, he argues, “copyright, intended to be the servant of creativity, a means of promoting access to information, is becoming an obstacle to both.” This is what led the Creative Commons Foundation to find an alternative to “All Rights Reserved.”
SOME RIGHTS RESERVED
The dual forces of copyright law restrictions and a new digital culture led to the launch of Creative Commons—a set of licensing tools that stands between the “All Rights Reserved” of traditional copyright and “No Rights Reserved” that is the public domain. In other words, “Some Rights Reserved.” The story of how Creative Commons moved from idea to reality is told neatly in David Bollier’s Viral Spiral: How the Commoners Built a Digital Republic of Their Own (New Press, 2008; www.viralspiral.cc). After much discussion, Creative Commons’ licenses were released to the public in January 2002. Applying the model of the work done by Richard Stallman and the GNU General Public License for software, Creative Commons’ licenses can be used with text, blogs, music, audio recordings, podcasts, photographs, videos, songs, websites, and films found on the internet.
In September 2009, Creative Commons released an important new report called “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use’” that examines how both creators of content and users of content understand the terms “commercial use” and “noncommercial use” when using content found on the internet. It states that the core mission of Creative Commons “is to facilitate the legal use and reuse of content, by offering creators and other copyright holders free and easy-to-use legal and technical tools that help them publish and distribute their works under flexible copyright terms.” The tools “provide the legal and technical infrastructure necessary to realize the full potential of creativity and innovation in a digital age” (http://bit.ly/q0yWS).
Creative Commons’ licenses are becoming increasingly common and widely accepted by major academic institutions, libraries, museums, nonprofits, and major search engines. Internationally, Creative Commons licenses have been “ported” (linguistically translated and legally adapted) to 52 international legal jurisdictions. In terms of metrics, the study also says that Creative Commons “estimates that its licenses are attached to over 250 million web pages,” which encompasses a wide range of cultural media including “literary and scientific texts, music, images, photographs, film, video” and “blogs, podcasts, and wikis.”
PROBLEM SOLVED? NOT QUITE
Has Creative Commons been a panacea for unlocking culture? No. Some problems have cropped up with using Creative Commons’ licenses. Joan McGivern, General Counsel for the American Society of Composers, Authors, and Publishers (ASCAP), identified “10 Things Every Music Creator Should Know About Creative Commons Licensing” (www.ascap.com/playback/2007/fall/features/creative_commons_licensing.aspx) in late 2007. Lawrence Lessig, one of the original founders of Creative Commons, responded quickly in a blog post (“Commons Misunderstandings: ASCAP on Creative Commons”; www.lessig.org/blog/2007/12/commons_misundertandings_asca.html) that refuted ASCAP’s assertions, point by point.
How might Creative Commons affect and be used by libraries? In a presentation at the Computers in Libraries 2009 conference (www.infotoday.com/cil2009), Michael Sauers, Technology Innovation Librarian, Nebraska Library Commission, spoke on “Participating in the Creative Commons,” where he identified important problems that you or your institution need to consider when deciding to use Creative Commons’ licenses. Sauers mentioned the irrevocable nature of Creative Commons and its noncommercial aspects. Do these create negative marketing for your library? Should libraries worry about unintended use? (See www.slideshare.net/travelinlibrarian/participating-in-the-creative-commons-cil2009.)
Creative Commons’ licenses are nonrevocable. In the Creative Commons FAQ (http://wiki.creativecommons.org/Frequently_Asked_Questions), it says, “This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work.”
In his ASCAP response blog post, Lessig muses that Creative Commons’ licenses should be “term limited”—maybe for a period of 5 years. After that, you could decide to change the licensing terms and suffer no downstream penalties. However, the Creative Commons board has not agreed to implement that change. Before you decide to license your work with a Creative Commons license, you need to think how you feel about people using your work now and in the future.
Another concern: What does “noncommercial” mean? Noncommercial licenses are quite popular. The CC’s study on defining noncommercial says they account for “approximately two-thirds of all Creative Commons licenses associated with works available on the internet.”
However, with this popularity has come confusion. Noncommercial licenses “let people copy, distribute, display, perform, and remix your work for noncommercial purposes only. However, if they want to use your work for commercial purposes, they must contact you for permission.”
You can still make money from your work—as stated in the FAQ, the “noncommercial use” condition applies only to others who use your work, not to you (the licensor). But problems can arise. Let’s say I have a website or a blog that has Google Ads. Can I still use someone’s noncommercially licensed content on my blog? What about the situation of a nonprofit that uses your content while it is holding a fundraising campaign? Can they still use the content and not be in violation of the license? In both situations, the content is not being sold, packaged, or delivered but the owner of the blog/website still can profit from including the content on their site.
I asked Mike Linksvayer, vice president of Creative Commons, to comment on this problem. In his email response he recommended that if you are at all unsure you have two options—use content that is not restricted by the noncommercial license or contact the owner of the content and ask them if they are OK with your use of their content. This is only his personal opinion: Creative Commons does not provide legal advice.
Similar recommendations are echoed in the “Defining Noncommercial” report, where licensors should expect “some uses of their works that would not meet the most stringently conservative definition of noncommercial, and licensees who are uncertain of whether their use is noncommercial should find a work to use that unambiguously allows commercial use or ask the licensor for specific permission.” This situation is something you need to keep in mind in both using noncommercial content and making your own content available for noncommercial purposes.
DEALING WITH DERIVATIVE WORKS
The last problem deals with an issue relating to derivative works. What options/recourse do I (the licensor) have if someone has used my work in a derivative work or in a collection that I do not like? If you let people remix or change your work, they are required to credit your work in the way you request.
If, however, you are uncomfortable with the way they used your work, you can ask them to remove your name from and your association with the derivative or the collective work. Lessig notes that the person using your work cannot “assert endorsement, and the creator does have the right to forbid attribution back to the creator.”
Here’s another possibility. You could contact the person using your content and ask them to remove your content altogether, but since you licensed the work allowing derivative uses, they could refuse to do so.
CREATIVE COMMONS COMFORT LEVEL
Creative Commons has much to offer if you are comfortable with sharing your work. Interested in exploring this further? Creative Commons has created a useful tool that allows you to determine how permissive you wish to be (http://creativecommons.org/choose).
Two questions to ask yourself: Do I want to use other people’s content to mashup/remix, share, and distribute? Do I want to share my own content and allow others to do the same thing? Only you or your institution can answer these questions.
Whatever you decide, in the absence of a rewriting of U.S. copyright law and with the development of better digital tools, we should expect to see more content in multiple formats making its way onto the internet. Creative Commons is one way to gain access to that content, in the spirit of the 21st century and without running afoul of the “all rights reserved” mentality.