Creative Commons - Rebalancing the Copyright Bargain in the Digital Age

Authors Avatar

Creative commons ~ rebalancing the ‘copyright bargain’ in the digital age?

A free culture has been our past, but it will only be our future if we change the path we are on right now.


The rapid progression of the digital age has provided almost limitless access to creator’s works, and has forced a cultural ‘rethink’ on the role of copyright laws in the modern world.    Centuries old copyright laws, created in an age where the reproduction of works was easy to control, have emerged into an era with almost limitless potential for cheap, accessible reproduction by anyone.   Whilst copyright laws have provided periods of protection for creators interests, they are perceived by many to serve commercial monopolies over works and against both the interests of creators and society alike.   This has triggered a cultural revolution toward alternatives that attempt to restore control back to the creators, and foster creative freedom that is essential for a healthy and progressive society.

This paper will examine the relationship between copyright, the public domain, and one of those alternatives, Creative Commons.


2.1        The Origins of Copyright.

In 1710 the Statute of Anne was enacted in Britain giving legal effect to the concept of copyright, and in doing so, it dramatically changed the manner in which the rights over works were controlled.   The new law overturned decades of monopoly control by the Stationers’ Company, and was intended to foster creative freedom by providing creators exclusive exploitation rights over their own works.   Similar laws were later enacted overseas, along with a breadth of international agreements over time, all of which attempt to provide global consistency for the protection of intellectual property; copyright is truly universal.

2.2        Copyright & the Creation of the Public Domain.

Early copyright laws prescribed limited terms for exploitation rights; generally only 21 years,   which automatically gave genesis to the public domain.  Works that either did not fall within

copyright, or whose terms had expired, automatically permitted unrestricted use by anyone.   Historically, works in the public domain attracted little attention because the ability to reproduce and publish works was limited to commercial distributors.   It is only in recent years, with the advent of modern technology, that the public domain has drawn closer scrutiny regarding the long standing problems with an ‘all or nothing’ application of copyright.

2.3        Problems with Copyright.

Copyright law provides universally exclusive rights to creators (or those who own the copyright) including the right to reproduce original or derivative work, distribute, sell, display and perform such works for extended periods.   However, history has shown that many creators surrender their exclusive exploitation rights to commercial distributors for little financial return, because of a significant power imbalance between the two.

Whilst creator control and protection was generally an important focus for copyright, commercial control and influence have now become the dominant factor in copyright.

The modern ‘essence’ of copyright is reflected in a recent statement from a Sony BMG representative: ‘It is imperative for Sony BMG to combat this problem, if we don't, we have no business anymore.’; business and finance being their motivation, not the creator, the work or society.

Copyright has also been criticised as being excessively legalistic, inflexible and adversarial toward consumers, which hinders creativity and freedom of artistic expression.   This illustrates a balancing of rights, often termed the ‘copyright bargain’ – a balance between protection for the artist and rights for the consumer’, with determination of that balance often being elusive, particularly when complicated by commercial influence.    Copyright terms have been repeatedly extended far beyond those of the founding Acts, with works in Australia and the US now being effectively excluded from the public domain for 70 years past the creator’s death.

Critics argue that such extended terms are designed not to protect the creator, but to protect commercial monopolies, because invariably commercial enterprises become the owners of many works, who vigorously enforce exclusivity.

The availability of affordable technology, that was previously only within the domain of large commercial entities, is now readily accessible by anyone with a home computer.   Anyone

can now access, download and remix works rapidly from all over the world, each potentially constituting a ‘copy’ in breach of copyright laws.   This creates extreme difficulties with enforcement and compliance, particularly involving sources based in countries not subject to copyright provisions.   When coupled with an increasingly adversarial relationship between lawful distributors and consumers, broad scale cultural rejection of the traditional copyright system was inevitable.

In 1998 the tension between digital age consumers and commercial control was demonstrated with the implementation of the Copyright Term Extension Act, into the US Senate.   Also known as the Sonny Bono or ‘Mickey Mouse’ Act, the Act extended the life of copyright terms on works by an additional 20 years, increasing terms for many works to include the life of the creator plus 70 years.   This extension was also adopted by Australia through the 2005 US-Australia Free Trade Agreement.   However, the motivation behind the American Bill was seen by critics to be in response to corporate lobbyists, in this case Disney, seeking to protect royalties from copyright works nearing the end of their life.

Professor Laurence Lessig, an outspoken critic of copyright, launched a legal challenge to the new bill.   The challenge ultimately failed, but provided the impetus for Lessig to create a ‘copyleft’ system of licensing to afford greater creator freedom for copyright works; Creative Commons was born.


Creative Commons was created ‘[t]o help artists and authors give others the freedom to build upon their creativity, without calling a lawyer first.’   It provided a free, easy to use, universal system founded on the law of contracts, accessible via the internet.   Creative Commons challenges the traditional view of works entrenched in copyright; that of exclusive proprietary rights, or no rights, representing a cultural shift away from exclusivity.   Creators are now able to choose how they permit access to their works beyond the control of commercial distributors, through the issuing of different licenses via the website.   Consumers wishing to sample or use a creator’s works in compliance with a CC license could do so without the having to pursue the often difficult processes of obtaining permission and paying of royalties; or fear prosecution under copyright.

Currently, six different CC licenses are available which enable a creator to voluntarily assign some or all exploitation rights away.   The license cannot be revoked and is forever,  with all monitoring and enforcement of the terms being the responsibility of the creator.

Creative Commons is not intended to replace copyright but to complement it, through creator freedom, rather than exclusivity.


4.1        Redress Power Imbalance?

Creative Commons potentially threatens the power of commercial distributors, who argue that a surrendering of creator rights through CC licenses may limit opportunity for creators, and make it difficult for them to secure financial contracts with commercial distributors.   This ‘all or nothing’ monopolistic approach was maintained by the dual nature of the copyright bargain,  in which prior to Creative Commons, distributors effectively ‘held all the cards’, with creators subject to immense pressure to agree to the terms presented in contracts or face the alternative of market isolation and career failure.

Join now!

Creative Commons redresses this power imbalance because it provides alternative opportunities for creators.   Creators may now freely choose, without undue influence, the assigning of rights through a CC license to facilitate their own market exposure.

4.2        Freedom to Self-Promote

Freedom for creators is provided by power and control over their own work.   CC licenses place the decision making regarding works directly in the hands of the creator.   This is then supported by the vast potential for exposure, both through the CC website, its links and other digital mediums such as Google, Amazon, Kindle, YouTube and MySpace.   Creators that previously may ...

This is a preview of the whole essay