Ok, I really should be doing my statistics assignment right now but I’m just bursting after discovering the most juicy back-and-forth on the question of whether ‘Creative Commons preserves copyright’ between David Wiley and Stephen Downes. Stephen makes an excellent point – albeit couched in a significant dose of paternalism – that people in developing countries don’t need CC because it wouldn’t help them in getting access to learning materials that are currently – and probably will always be – inaccessible via CC. He then extends this by making a pretty strong statement:
The upshot is that, by preserving copyright, open licensing may have actually made it harder to obtain such texts. Since the alternative of Creative Commons exists, there is much less pressure toward shorter copyright terms, and much less pressure for exceptions to copyright, particularly those involving fair dealing.
David Wiley responds with the headline ‘No Stephen…’ After saying that the argument is ‘just plain silly’ he rightly points out that we need evidence to point to such a thing:
This sounds like pure conjecture. I would love to see even a single statement from a person in position of influence over national intellectual property policy along these lines. I doubt one exists, but am always happy to be proved wrong.
I have absolutely no influence over national intellectual property policy, but let me point to an example of exactly how Creative Commons preserves – and in some cases actually helps support – the status quo of copyright.
This story comes from my own experience and my own discomfort at the kinds of conversations that I was having in my previous life with CC in South Africa. CC volunteers and staff are invited to do similar talks around the world where we are invited to talk to artists, students, educators, authors, creators about this new thing that had something to do with ‘copyright licenses’. My talk would basically go something like this:
1. Copyright is broken. Look at all the things you can’t do! Look at all the people who are getting sued! Look how expensive everything is!
2. CC is the solution! It is an alternative to copyright where you can license the material under ‘some rights reserved’ rather than ‘all rights reserved’
3. Look at all these other people who are using CC – some of which are sound businesses. You should too.
After I’m done, I open up to questions. Turns out no one really wants to license their own work, they want to find out what they can USE that is cc-licensed – they want to know what’s available (CC made it a policy not to curate content – they invite volunteers to do this now on their wiki but it’s limited to a listing of just the site title) and why they can’t just carry on using stuff in the same way they always did. The conversation would go something like this:
Audience person: Yes, I have a question. So you’re saying that I can’t just take an image and change it and then use it? I thought there was this 30% rule that you could change something by 30% and then it’s ok…
Me: Turns out that 30% rule doesn’t exist. The fair dealing provisions are really complex and available only in certain circumstances. Blah blah blah about fair dealing…
Audience person: Also, I thought you could make personal copies of things without paying anyone. But now you’re saying that actually I can only use CC-licensed stuff.
CC person: Yes, there are conditions in our copyright law that enable us to use copyrighted materials for personal use but you can’t technically put that stuff on your blog or your own site. I mean, it’s debatable whether you can or not and surely you want to be legally secure?
Audience person: Ah ok. So it looks like I really need to learn more about copyright law.
Jeez. I would feel a bit sick afterward. Here I was telling people about Creative Commons – hoping that they’d join the movement, add stuff to the pool and join the conversation – and I ended up telling them how the copyright cops were out to get them and they should use CC just to be legally sure because actually they can’t be legally sure about anything else on the Internet. Since so little content that people practically consume is available under CC, they end up finding out about the problem (copyright) and then about *the solution* which incidentally doesn’t attack the problem but provides what David Wiley calls a neat “bandaid” (Creative Commons).
More information is definitely better, I’m sure (at least that’s what I’m telling myself) but really, it got my asking myself: what is the value proposition here, really?
This is not only a problem that exists in Africa and China – it’s a great place to look at what the problem is but just because it has this effect in Africa doesn’t mean it doesn’t have the same effect elsewhere. I’ve given so many of these talks so many places and I feel like the key problem was that we were listening too hard to the publishers who were criticizing CC for all the wrong reasons – and in doing that, we stopped hearing anything else.
I guess the ultimate question is: we’re using this bandaid to stop a gushing wound… maybe we need to use something more effective? Maybe we’re putting all this energy into making the bandaid available in more countries without imagining that something else might do the trick more effectively.
Lessig talks about 4 ways in which copyright can be regulated: laws, norms, architecture and markets. In my next post, I’ll argue that norms of sharing are perhaps more effective in actually getting to the heart of the problem: affecting change in copyright law on the Internet.
Now to that assignment!
Hblog.org 
Well, the greatest crimes against access to knowledge are now in contract law, right? So you might not want to publish your work with a publisher at all, regardless of your license. IFLA, EFLA och TACD have addressed this issue a bit.
Great post. Your imagined back-and-forth with audience members is a pitch-perfect anecdote!
Thanks for your comments. Amelia, you’re right — would love to hear more about how IFLA etc have addressed this? Science Commons seems to have done a really good job of addressing contracts too.
Qubitsu: thank you so much for your kind words 🙂
I really admire the way you revealed the core problem embedded in the CC idea, and the clarity with which you present it. I heard Lawrence Lessig during “Wikimania 2006” in Cambridge, Massachusetts, and was overwhelmed by his eloquent description of the copyright problem. Nevertheless, it soon occurred to me too that while the problem was definitely there, the solution proposed was problematic. This feeling came when I looked at some CC-licensed works and asked myself whether it was easier for me to use them. I found out that, in a way, CC makes the “does and donts” system more complicated, and even though it adds some “does” to the list, at the end of the day it increases the ambiguity of copyright limitations, and makes me feel I should stay away from the work and use something else. I also felt this way with regard to another free content project – Wikimedia Commons. A person there managed to have many images he did not like by raising doubts about their copyright status. Since raising such doubts is very easy and very harmful for such free content project, I expected he would be kindly asked to be more productive. In fact, administrators on Wikimedia Commons admired him for spotting potential “problems”. The damage is huge – if a free content project constantly adopts far-fetched limiting interpretation, what should we expect of a judge who is asked to address the issue?
This is an interesting description of some of the complexities and ambiguities in the area of copyrights, but I think the primary question is a little off the mark.
First, Creative Commons and any serious licensing system (such as GPL or Apache) relies upon copyright as its basis for authority. You must first assert ownership of a creative work before you have any standing to declare how others may use it – or its licensing terms.
If you simply state “All rights reserved,” you assert that use is restricted to the fullest extent of the law of the country that applies, only allowing whatever fair use/fair dealing/personal use/ etc. that is allowed by statute.
On the other hand, if you declare a creative commons license, you are typically allowing more types of usage than the law by itself would allow, and these usage allowances are explained relatively simply, when compared with typical statutory and case law usage allowed by default; it could also make it easier to understand usage allowed anywhere, rather than keeping track of different usage rules in different countries.
@Paul Hyland – When I see a text or image licensed under CC, what does it mean for me, as a not-too-sophisticated user? If I want to quote a part of a certain text, it hardly means anything. Most copyright statutes allow citations under “fair use” or “fair dealing” terms. It might be helpful if I want to translate the text (which is often considered a “derived work” rather than “fair use”), but then, why wouldn’t the write simply write: “I allow anyone to translate this work accurately and with appropriate credit”? This would be much clearer than referring to a CC license. CC might be more relevant to images, designs or programming codes. Images cannot be “cited” – copying a part of the image could amount to defacement, and it is unclear whether republishing under significantly reduced resolution is “fair use”. Then again, it has never been clear to me how CC makes usage of an image more convenient, unless we are talking about CC-by, and in that case, it would be more clear to state “The author relinquish all copyrights except moral rights”. As a contributor to Wikipedia, I used the CC license mainly as an indication that the work is allowed on Wikimedia severs (and even then I had to check whether the specific CC-license is acceptable), but Wikimedia servers are just a tool, not the goal.
With regard to the damage of the “copyright discourse” that develops around CC, Wikipedia and similar projects, I can give you this example from my home country – It is acceptable in Israel, that you may take a picture of almost any creative work displayed in public, and publish this picture for almost any purpose. The local copyright statute determines some limitations on this practice, but, by and large, they are ignored. When trying to upload a series of images of sites in Israel to Wikimedia Commons, Israeli users often encountered the claim that these images depict copyrighted material. It was very hard to explain that no one has ever sued for copyright violation on this ground, and even if someone would, the court is likely to legitimize the common practice by giving a narrow interpretation to the limitations in the statute. I even called one of the alleged copyright holders of a banner that was photographed in the streets of Tel Aviv. It was a municipal department. The manager said, “feel free, it’s in public place”. When I explained the problem he said, “let me talk with out legal advisor”. She then came back to me and said something like: do what ever you like, but don’t ask me to sign anything.
Having researched copyright policy and law many years ago I’m hopelessly out of date about such issues but I have two impressions about CC: (1) if people don’t understand the concepts of IP licensing and contracts they won’t “get it” in the first place and (2) CC is an elegant solution that has failed in generating acceptance since it is swimming upstream against too many other copyright arrangements. Just as I despair against generating agreement about “fair use” I despair against ever having everyone understand and adopt CC. That ain’t gonna happen. CC has become more akin to a political cult than a legal movement and defines just one more isolated area of rights and permissions that needs to be addressed when considering the use of someone else’s property. And that’s too bad.
@Dror Thank you for your as-always-spot-on comments. I think that Wikipedia is exactly where this debate gets interesting and I’d love to talk more about this with you. I totally agree that in many cases a simply written statement by the authors like ‘I allow anyone to translate this work accurately and with appropriate credit’ could be as effective – if not more effective – than using (or pointing to which is usually the case) the license at cc.org. Your examples from Wikimedia Commons are really interesting – I’ve seen something similar happen in other places as well.
@Paul. Thanks for your comment. You’re right that technically a CC-license will enable you to do things that fair use is fuzzy on. No disagreement there. What I’m saying, though, is that if you look at the bigger picture, CC doesn’t promote understanding of, and activism against, current copyright law. As you correctly point out, the GPL and CC rely on the framework of copyright law to exist. And it is this simple fact that make them ineffective at breaking down the conception of copyright. If current copyright law is the real problem here, and if CC cannot work to free up works already under all rights reserved, then we need to think of new and better solutions without languishing in the belief that the problem is solved.
@Dennis. I’m sorry about your despair: I can relate!
I’ll make you a deal: I won’t “despair” if you won’t “languish”! 😉
@Dennis Deal 🙂