Creative Commons - Rebalancing the Copyright Bargain in the Digital Age

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.

I INTRODUCTION.

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.

II THE LAWS OF COPYRIGHT.

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.

III THE IDEA OF CREATIVE COMMONS.

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.

VI A THIRD FORM OF IP RIGHTS?

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.

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

This is a preview of the whole essay

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 have been rejected by distributors, or accepted but assigned their exclusive rights away through contract, are no longer confined by these limitations. Releasing work under a CC license enables consumers to test or sample the creator’s work without breaching copyright. If they approve of the work they are likely to seek more of it and pay for it. Creators that are successful before engaging distributors (if they choose to) are in a far stronger position to negotiate on equal terms. Many may choose to self-market and distribute, ensuring they receive 100% of the royalties without any of the encumbrances normally associated with distributor contracts. A strong example of this is the CC license application to Revver videos which has seen over $1 million paid to people who have uploaded their videos and received payments from advertisers.

4.3 Free Digital – Death of the Original?

Opponents of the Creative Commons ethos assert that freely available media on the internet, as facilitated by CC licenses, will reduce sales of the original works because people will not pay when they can download it for free. Critics argue that this perception is over simplistic, and without evidence, countering, that creators gain exposure they would not ordinarily receive by opening access to potential markets not yet discovered by the commercial distributors.

4.4 Fostering Creativity.

One of the primary purposes of CC licenses was to foster creativity and freedom of expression for other creators. With the ability to use the works of others without fear of prosecution in remixing and adapting work, creators are able to explore and create new works not practically possible before. Industry proponents argue that creativity is actually stifled because copying and changing original works is uncreative and regressive. This argument does not withstand rational scrutiny because it ignores the reality that many creators value creating original works, and strive recognition as an ‘original creator’, it also ignores the perspective of current and future generations who may not necessarily value works from a traditional viewpoint.

Additionally, the distribution of a successful remix provides almost limitless opportunity for secondary exposure of the original works. That exposure has enormous potential for creators because it may create interest for more of their works that can be exploited; something that may not have occurred without the use of a CC license.

4.5 Creative Commons – The Challenges.

Whilst Creative Commons offers the potential for a great expansion in the way works and information are exchanged, it does not come without problems.

The primary concern is how creators enforce their rights under CC licences, as potentially the licenses may be unenforceable. To date, there have been no legal test cases in Australia, with only two reported examples overseas, the first being determined in the Netherlands in 2006 regarding the unauthorized use of photographs posted on the Flikr site. Although the court upheld the license conditions in support of the creator, the offending tabloid was not forced to pay restitution.

Further potential conflict may arise in circumstances where creator’s rights have been partially assigned to collecting societies, as occurs in many European states. This was tested in a Spanish case in which a collecting agency, that acquires partial rights for music produced by its members, sought the restitution of royalties for music covered by CC licenses used by a local disco. The court held the agency did not manage the artists or their music and therefore the provisions of the CC licenses stood, the case was dismissed.

Conflict with moral rights copyright provisions may also undermine the integrity of CC licenses. Consumers utilizing CC licensed work believing it to be subject to unrestricted terms may still find themselves subject to prosecution for breaches relating to attribution or integrity.

With all the potential problems, the CC movement continues to grow at a phenomenal rate. It is constantly evolving and refining in response to the needs of its consumers, and now represents a new third form of property rights.

V CONCLUSION.

History has shown that the existence of only two forms of intellectual property, copyright and the public doman, are extremely vulnerable to undue commercial influence, often to the detriment of the creator and society. Whilst Creative Commons is far from offering utopia, its ability to restore balance to the copyright bargain is not only positive but essential to the creative health of society. It may also cause self focused commercial distributors to re-consider their role in society, including their relationship with creators and consumers, which can only be a good thing.

Rebel publisher William Carter, the first person executed for unauthorized printing, discovered that copyright laws can often work against freedom; Creative Commons now offers an additional form to the copyright bargain based on freedom, a form that is long overdue.

finis

BIBLIOGRAPHY

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3. Legislation

The Statute of Anne 1710.

4. Treaties

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International Convention for the Protection, of Performers, Producers of Phonographs and Broadcasting Organisations, opened for signature 26 October 1961, 496 UNTS 3, (entered into force 18 May 1964).

World Intellectual Property Organisation Copyright Treaty, opened for signature 31 December 1997, WIPO, (entered into force 6 March 2002).

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The term ‘creator’ is used throughout this essay to describe the originators of literary, dramatic, artistic or musical works, sound recordings, broadcasts, cinematograph films, and live performances.

James Boyle, The Public Domain: Enclosing the Commons of the Mind (2008) 1-4,

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Arnold, above n 3,

Vaidhyanathan, above n 3,

Maruca, above n 3.

Arnold, above n 3, 4.

Lessig, above n 1, 8-9,

Boyle, above n 3, 1-4,

Christine Harold, Our Space: Resisting the Corporate Control of Culture (2007) 144,

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Lessig, above n 1, 8-9,

Boyle, above n 3, 1-4,

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The Statute of Anne 1710 also known as the Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.

The Statute of Anne 1710,

Samuels, above n 7, 1-6

John Feather, ‘The Book Trade in Politics: The Making of the Copyright Act of 1710’ (1980) 8 Publishing History 19, 31—36,

Arnold, above n 3, 4,

Vaidhyanathan, above n 3, 37,

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Patterson, above n 9, 180-202.

Over twenty four in total –see

WIPO, WIPO Administered Treaties (2009) <> at 2 December 2009.

WIPO, above n 11,

Berne Convention, opened for signature 14 July 1967, 828 UNTS 222, (entered into force 27 January 1970,

World Intellectual Property Organisation Copyright Treaty, opened for signature 31 December 1997, WIPO, (entered into force 6 March 2002),

Among many others.

WIPO, above n 11.

Samuels, above n 7, 1-4,

Lessig, above n 1, 1-8,

Boyle, above n 3, 1-4.

Samuels, above n 7, 1-6,

Lessig, above n 1, 1-8,

Boyle, above n 3, 1-4.

Samuels, above n 7, 1-6,

Lessig, above n 1, 1-8,

Boyle, above n 3, 1-4.

Samuels, above n 7, 1-6,

Lessig, above n 1, 1-8,

Boyle, above n 3, 1-4.

Arnold, above n 3, 4,

Australian Copyright Council, Copyright Purposes and Sources (2008) <> at 27 November 2009.

Patterson, above n 9, 222-230,

Shane Simpson, Music Business (3rd ed, 2006) 377,

Arnold, above n 3, 4,

Vaidhyanathan, above n 3, 37-40,

Richard Broome, Aboriginal Australians (3rd ed, 2001) 266,

, Why New Artists and Musicians Need Legal Advice the Most - To Keep From Being Taken Advantage Of (2009) Ezine Articles – Legal, <> at 28 November 2009.

Patterson, above n 9, 222-230,

Shane Simpson, above n 19, 377,

Arnold, above n 3, 4,

Vaidhyanathan, above n 3, 37-40,

Broome, above n 19, 266,

, above n 19.

Moldova Org, US court to try first case of copyright claims over music downloads on file-sharing networks (2009) <> at 28 November 2009.

Canadian Music Creators Coalition (CMCC), A New Voice (2008) <> at 2 December 2009,

Sir Hugh Laddie, ‘Copyright, Over-Strength, Over-Regulated, Over-Rated?’ in Sir Hugh Laddie, Sir Robin Jacob, Ruth Towse, Graeme Laurie & Charlotte Waelde (eds), Innovation, Incentive and Reward: Intellectual Property Law and Policy (1997) 1-16,

Stina Teilmann, ‘On real nightingales and mechanical reproductions’ in Helle Porsdam (ed) Copyright and Other Fairy Tales: Hans Christian Andersen and the Commodification of Creativity (2006) 34-35.

Andrew Adam & Rachel McCrindle, Pandora’s Box: social and professional issues of the information age (2008) 454.

Wikipedia, List of Countries’ Copyright Term Length (2009) <> at 29 November 2009.

Samuels, above n 7, 1-4,

Lessig, above n 1, 1-8,

Boyle, above n 3, 1-4.

Samuels, above n 7, 1-4,

Lessig, above n 1, 1-8,

Boyle, above n 3, 1-4.

Teilmann, above n 22, 34-35.

Lawrence Lessig, ‘(Re)creativity: how creativity lives’ in Helle Porsdam (ed) Copyright and Other Fairy Tales: Hans Christian Andersen and the Commodification of Creativity (2006) 17-19.

Gerard Simington, Music Industry Runs Into Copyright Enforcement Problems In France (2009) Ezine Articles – Legal, <> at 2 December 2009,

House of Representatives Standing Committee on Legal and Constitutional Affairs, Commonwealth Parliament of Australia, Cracking down on copycats: enforcement of copyright in Australia (2000) 16-17.

CMCC, above n 24,

Lessig, above n 26, 21-22,

Litman, above n 4, 135-136.

Dorothy Schrader, ‘Copyright Term Extension and Music Licensing: Analysis of Sonny Bono Copyright Term Extension Act and the Fairness in Music Licensing Act’ in John Martin (ed), Copyright: Current Issues & Law (2002) 161-172,

Matthew Rimmer, Digital Copyright and the Consumer Revolution: Hands off my Ipod (2007) 41.

Schrader, above n 30.

Rimmer, above n 30.

Wikipedia, List of Countries’ Copyright Term Length (2009) <> at 29 November 2009.

Samuels, above n 7, 1-4,

Lessig, above n 1, 1-8,

Boyle, above n 3, 1-4.

Australian Government Attorney General’s Department, Australia-United States Free Trade Agreement - changes to Australian copyright law - March 2005 (2009) <> at 2 December 2009,

Wikipedia, List of Countries’ Copyright Term Length (2009) <> at 29 November 2009.

Samuels, above n 7, 1-4,

Lessig, above n 1, 1-8,

Rimmer, above n 30.

Paul Heald, ‘Losing to Disney: The Complex Lesson of Eldred v Ashcroft and the Corporate Control of Copyright’ in Fiona Macmillan & Kathy Bowrey (eds), New Directions in Copyright Law, Volume 2 (2006) 316,

David Bollier, Silent Theft: The Private Plunder of Our Common Wealth (2002) 123.

Bollier, above n 34, 124,

Eldred v. Ashcroft (01-618) 537 U.S. 186 (2003) 239 F.3d 372,

Paul Saint-Amour, Copywrights: Intellectual Property and the Literary Imagination (2003) 125-126,.

Rimmer, above n 30, 261-263,

Kembrew McLeod & Lawrence Lessig, Freedom of Expression: Resistance and Repression in the Age of Intellectual Property (2007) 306.

Lawrence Lessig, ‘Creative Freedom for All’ in Vikram Amar, Rosemary Passantino, Lawrence Lessig (eds), The Best American Legal Commentary (2005) 90,

Creative Commons, History (2008) <http://creativecommons.org/about/history/> at 2 December 2009.

Lessig, above n 37,

Creative Commons, above n 37,

Rimmer, above n 30, 261-264,

Marieke van Schijndel & Joost Smiers, ‘Imagining a World Without Copyright’ in Helle Porsdam (ed) Copyright and Other Fairy Tales: Hans Christian Andersen and the Commodification of Creativity (2006) 151.

Lessig, above n 37, 89-90,

Creative Commons, above n 37.

Arnold, above n 3,

Vaidhyanathan, above n 3,

Maruca, above n 3.

Arnold, above n 3,

Vaidhyanathan, above n 3,

Maruca, above n 3.

Creative Commons, About Licenses (2008) <> at 2 December 2009,

Lessig, above n 1, 286.

Scot Morris & Kirti Jacobs, Creative Commons (2008) <> at 2 December 2009.

Ibid.

Christina Spurgeon, Advertising and New Media (2008) 111.

Harold, above n 6,

CMCC, above n 24,

Ian MacDonald, Creative Commons licences for visual artists: a good idea? (2006) Australian Copyright Council, <> at 2 December 2009,

Morris, above n 43.

Rimmer, above n 30, 263,

ABC Radio National, above n 7,

Claremont Copyright, Alternatives to Standard Copyright (2008) <> at 2 December 2009.

Morris, above n 49.

Lawrence Lessig, ‘Does copyright have limits : Eldred v Ashcroft and it aftermath?’ (2005) 5 Queensland University of Technology Law and Justice Journal 2, 219-230,

ABC Radio National, above n 7,

Culture, Media and Sport Committee, above n 59,

Harold, above n 6.

Simpson, above n 19,

ABC Radio National, above n 7,

Culture, Media and Sport Committee, Great Britain House of Commons, New Media and the Creative Industries (2006-2007) 340,

Harold, above n 6,

van Schijndel, above n 38, 147-152,

Lessig, above n 37,

Lessig, above n 48.

Lessig, above n 37,

Lessig, above n 48.

Paul Torremans, Copyright Law: A Handbook of Contemporary Research (2007) 312-313,

Yochai Benkler, The Wealth of Networks - How Social Production Transforms Markets and Freedoms (2006) 455-456,

Lessig, above n 37,

Lessig, above n 48,

Waelde, above n 6.

Lessig, above n 37,

Waelde, above n 6,

Harold, above n 6.

Lessig, above n 37,

Waelde, above n 6,

Harold, above n 6.

Creative Commons, CC Network (2008) <> 2 December 2009,

ABC Radio National, above n 7.

Torresmans, above n 51,

Benkler, above n 51,

Waelde, above n 6,

Harold, above n 6,

ABC Radio National, above n 7.

Rimmer, above n 30, 289,

Lessig, above 37.

Lessig, above n 37,

Waelde, above n 6,

Harold, above n 6.

Steve Gordon, The Future of the Music Business: How to Succeed with the New Digital Technologies – A Guide for Artists & Entrepreneurs (2005) 130-192,

ABC Radio National, above n 8.

Mark Glaser, Creative Commons + Flickr = 22 Million Sharable Photos (2006) MediaShift: Your Guide to the Digital Media Revolution at 2 December 2009.

McDonald, above n 46,

Morris, above n 43.

Glaser, above n 59.

Lessig, above n 37,

Lessig, above n 48,

Rimmer, above n 30,

Waelde, above n 6,

ABC Radio National, above n 7.

Lessig, above n 37,

Lessig, above n 48,

Rimmer, above n 30,

Waelde, above n 6.

ABC Radio National, above n 7.

Johanna Gibson, Creating Selves: Intellectual Property and the Narration of Culture (2006) 107-109,

Matt Mason, The Pirate’s Dilemma: How Youth Culture is Reinventing Capitalism (2008) 101,

Lucie Guibault & P Hugenholtz, The Future of the Public Domain (2006) 335-338.

Harold, above n 6, 142,

Lessig, above n 26, 20,

Lessig, above n 48.

Lessig, above n 26, 20,

Harold, above n 6, 142,

Gordon, above n 58.

Zachary Katz, ‘Pitfalls of Open Licensing: Analysis of Creative Commons Licensing’ (2006) The Intellectual Property Law Review 46, 391-413,

Kathy Bowrey, ‘The New, the Bad, the Hot, the Fad: Popular Music, Technology and the Culture of Freedom’ in Fiona Macmillan & Kathy Bowrey (eds), New Directions in Copyright Law, Volume 2 (2006) 270.

Ian McDonald, ‘Creative Commons, Just Say ‘CC’?’ (2006) 24 Copyright Reporter 4, 223-234,

McDonald, above n 46,

Bowrey, above n 67.

Naomi Korn & Charles Oppenheim, Creative Commons Licences in Higher and Further Education: Do We Care? (2006) Ariadne Magazine, <> at 2 December 2009,

Wikipedia, Creative Commons: Legal Test Case (2009) <> at 2 December 2009.

Mia Garlick, Creative Commons Licenses Enforced in Dutch Court (2006) Creative Commons, <> at 2 December 2009.

Wikipedia, above n 69.

Katz, above n 67,

Mia Garlick, Spanish Court Recognises CC Music (2009) Creative Commons <> at 2 December 2009.

Sociedad General de Autores y Editores (SGAE).

Katz, above n 67,

Garlick, above n 70.

Creative Commons, above n 42.

ABC Radio National, above n 7,

Chrisanthi Demos, Interview with Jessica Coates, Project Manager Creative Commons Australia, Queensland University of Technology, 16 October 2008, <> at 2 December 2009,

Creative Commons, Supporters (2008) <> at 2 December 2009,

Creative Commons, Press Releases (2008) <> at 2 December 2009.

McDonald, above n 46,

McDonald, above n 68,

Pam Foo, ‘Do copyright owners understand how to use Creative commons licences?’ (2007) 25 Copyright Reporter 4, 132-148,

Bowrey, above n 67,

Katz, above n 67,

Foo, above n 79.

Arnold, above n 3,

Vaidhyanathan, above n 3,

Maruca, above n 3,

Lessig, above n 37,

Lessig, above n 48.

ABC Radio National, above n 7,

Mason, above n 65,

Gordon, above n 58.

Arnold, above n 3.

Creative Commons - Rebalancing the Copyright Bargain in the Digital Age

This is a preview of the whole essay

Litman, Jessica, ‘Revising Copyright Law for the Information Age’ in Thierer, Adam & Crews, Clyde (eds), Copy Fights: The Future of Intellectual Property in the Information Age (2002) Cato Institute, Washington, USA.

Jessica Litman, ‘Revising Copyright Law for the Information Age’ in Adam Thierer & Clyde Crews (eds), Copy Fights: The Future of Intellectual Property in the Information Age (2002) 125-126.

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