What is Wrong with Copyright Law and How CC Can Help

Editor's Notes

1. Law tends to match our reasonable expectations. Sometimes true. Any lawyers here? Examples = res ipsa loquitur, interpret against contract drafter
2. Examples = making copy of CD for personal use only, using clip of self on news on your own blog
3. If this is the problem, then why? And what do we do about it? We will address both.
4. Nothing inherently irrational about ©. I won’t quiz you because if you got it wrong we would know you weren’t paying attention this morning. Funny story is that law prof gave us quiz as my sister said it is obviously not intend to promote progress.
5. Yet, despite its worthy goal, copyright as it operates today largely does not live up to my dad’s assumptions about the law. Why?
6. Two simultaneous forces at work: technology increasing freedom, law increasing control
7. B/c © automatic, we are all © holders. That has always been the case. But the Internet enables us to also be publishers. Instantly.
8. Online sharing has also enabled new forms of creativity. Everything from blogs to YouTube videos to 140 character status updates. In addition to making our own stuff, it also makes it easier to integrate cultural works and repurpose them. Remix culture.
9. Problem with most statutory law is its inflexibility. As we saw in fair use context, flexible rules have down sides, but they have a major upside, too, because they allow you to adapt the rules to new situations. Applying the same rules of copyright law in the digital age has dramatic implications.
10. Used to be lots of unregulated uses before digital technology. Reading, giving someone a book, selling a book.
11. Same actions now regulated by ©. And if you’re reading 1984, the book might disappear! This is dramatic expansion of scope of copyright, all by accident.
12. Simultaneous. Technology enabled so many new uses of copyrighted work and new ways of creating new content. But by accident, it also dramatically expanded the scope of copyright law and what actions it regulated.
13. Result = body of copyright law that does not live up to my dad’s assumptions about the law.. Largely, response has not been adapting law to make sense with technology, but rather the opposite – trying to apply it literally and expanding enforcement mechanisms to make literal application possible.
14. We do have built-in safeguards: one is fair use. People in U.S. like to complain about fair use. I think Larry Lessig calls it “the right to hire a lawyer.” Before going to CC was at Fair Use Project, and often had clients become frustrated with ambiguity of fair use. But now that I’m at CC, with more exposure to international copyright issues. I realize how often we take fair use for granted. It is actually the most expansive, powerful exception to copyright in the world.
15. Risky – W/o best practices or lawyer, hard to decipher. Even with that, can never have absolute certainty. Answer is almost always the dreaded “it depends” Scope – reasonable amount, transformative. Also geographically limited. (What is fair use here may not be fair dealing in the UK.) Matters a lot when you are posting things online to be accessed anywhere.Contract – even constitutional safeguards can be contracted away, and people try this often.
16. Fair use is not enough to put copyright back in balance. So problem with © remains.
17. Small nonprofit based in Mountain View, CA. Born in response to the problem with copyright law.
18. Had a vision. Goal = working within copyright to make sharing on the web work.
19. As Larry tells it, the story begins with the enactment of the Sonny Bono Copyright Term Extension Act (CTEA) in 1998.Extended term for 20 years to what it is now (life + 70). Max term of 95 years for older works.
20. Term of copyright matters because “limited times” mandate is part of constitutional bargain of copyright. Grant exclusive rights for limited times to create incentive to authors, then public gets to enjoy those works freely once copyright expires and works go in to public domain.
21. That expiration date keeps getting pushed. Initial term = 14 years, renewable once (max = 28). Extended to 28 years in 1831 renewable for 14 years (max = 42). Extended in 1909 (28 + 28 yrs) (max = 56). Then beginning in 1962 extended 11 times in less than half century. Culminating in 1998 with the CTEA.
22. Creativity does not come out of thin air. Builds upon the past so copyright’s end is important, arguably just as important as its existence. Also impossible to square with purpose of (c) as written in the Constitution. How can you incentivize creation of something that already exists?
23. Eric Eldred (web publisher) – had a career of making works available as they passed into public domain, decided to do it despite CTEA. (Larry calls it an act of “civil disobedience”). Larry connected with him to challenge the law.
24. Started group called Copyright’s Commons to work on the case. Took it all the way to the Supreme Court. Making the seemingly obvious argument that the law was unconstitutional because it was impossible to square with the purpose of copyright.
25. Lost 7-2. While preparing case, Eldred told Larry he wanted case to stand for something more. (good since case was a failure!) So as they prepared the case, Copyright’s Commons started thinking of bigger solutions to the problem.
26. Renamed Creative Commons, and came up with the idea to build a set of standardized legal tools that allow creators to keep copyright while sharing their works on more flexible terms than default under copyright.Framework built and then launched on Dec. 16, 2002. One month later, Supreme Court decided Eldred. One hour after decision, Hewlett Foundation handed them a check for $1 million to launch CC.
27. Idea was to give authors a range of options for sharing their work. Voluntary solution. Another goal was to make copyright law approachable. Relatively easy to understand and accessible to non-lawyers.And, of course, make tools free for the public to use.
28. Not against ©. Against extremism of copyright war. Trying to find a balance. Rejecting false choice between all or nothing.
29. Today, 10 years after it was founded, CC is a global movement. The CC Affiliate Network consists of 100+ affiliates working in over 70 jurisdictions to support and promote CC activities around the world.
30. So what is CC and who takes advantage of it?
31. Alternative approach to traditional model = some rights reserved.Keep copyright but grant certain permissions to the public in advance, eliminating or reducing transaction costs online. Not one size fits all, 6 options.
32. Mentioned earlier that fair use was not enough to put balance back into copyright. CC helps (1) provides cushion by reducing uncertainty. (2) CC licenses are designed to operate globally. Ensures permissions are granted worldwide. (3) In advance! No lawyers. (4) Allows you to use entire work for any purpose, not just transformative ones. Depending on CC license used, enables free commercial use.
33. Same concepts apply to CC as supplement to public domain. (1) Reduces risk and uncertainty (hard to figure out what is in public domain.) Don’t need a lawyer. (2) Pd different worldwide. (e.g., U.S. federal govt works in pd here, but maybe not elsewhere) applying CC legal tool fixes this
34. 4 conditions in different combinations: BY, NC, SA, ND.As you can see, each of the elements has a symbol that can be used to ‘represent’ each of these elements.This makes the licences easier to understand – in theory, once a person is familiar with the CC licences, they should be able to recognise what uses are allowed simply by looking at the symbols.
35. Also have public domain tools. CC0: Goal is to put works as close as possible into worldwide public domain. For use by rights holders. PDM: Not legally operable, used to mark works known to be in worldwide public domain. (especially useful for libraries, museums)
36. All CC legal tools expressed in three ways.
37. Lawyer-readable code: written in language only lawyers known and love, vetted by worldwide network of experts
38. Commons deed: human-readable since [luckily] not everyone is a lawyer, simplifies major terms into a few icons and non-technical language. User-friendly interface
39. Machine-readable code: This is what really makes CC licenses viable for the Internet age. This small snippet of HTML code summarizes the CC license and associated metadata (such as who the work is authored by) into a format that software, search engines, and other kinds of technology can understand.Easy to apply. Just cut and paste html code onto your web page. Makes works searchable on google and elsewhere.
40. This is conservative estimate of total number of works.
41. Licenses available on our site. But working with user-generated content platforms has enabled us to reach more individual creators.
42. Flickr – one of first major online communities to adopt CC. Allows uploaders to CC license. Now the largest source of CC-licensed content – 200+ million. Searchable through CC image portal and advanced search function
43. Mass collaboration projects – like Wikipedia. 17 million articles in languages. 8.5 million media files in Wikimedia Commons database. All licensed CC.
44. Online portal aggregates European cultural heritage materials. 20 million books, pictures, films, maps, archival records, museum objects and sound recordings from more than 1500 of Europe’s memory institutions.Major adopter of the Public Domain Mark. Labels out-of-copyright works that are available through its online portal. Also releases all descriptive metadata about works under CC0. Data providers give metadata, thumbnail, link to digital object at provider’s site.
45. CC is major part of global OER movement.OER — teaching, learning, and research materials in any medium that reside in the public domain or have been released under an open license that permits their free use and re-purposing by other.
46. MIT OpenCourseWare was pioneer of the movement. Releases web version of nearly all MIT course content in 2001. Moved to CC licenses since 2004. Today, 2000+ courses available. Has inspired hundreds of universities to follow its lead
47. Less traditional model - Khan Academy offers 3000+ instructional videos on everything from basic algebra to advanced chemistry. All licensed CC.
48. Over 30 governments take advantage of CC.Easy sell: taxpayers should receive benefit of materials they help create. By using CC licenses and tools to communicate broad reuse rights to the content, data, and educational materials they create, governments are stimulating economic growth, promoting citizen engagement, and increasing the transparency of government resources and services
49. Leader in Open Access movement. PLoS – Public Library of Science; publishes seven peer-reviewed journals, all content licensed CC BY.
50. CC has started trying to operate at policy level (to make CC default for all content) rather than focusing on individual adoption.
51. Department of Labor grant program: Up to $2 billion in funding for community colleges to build career training and education materials. All grantees required to be licensed CC BY on materials they create.
52. World Bank - Effective July 1, 2012, the Open Access Policy requires that all research outputs and knowledge products published by the Bank be licensed CC BY as a default.
53. With that background, turn to CC advanced. Easy to use, but built on copyright law so some complexity unavoidable. This is the part I love!
54. 6 licenses. All grant same baseline of permissions – all exclusive rights under © except right to create derivative works.Make copies of the workDistribute the workDisplay the workPerform the work
55. All require attribution to licensor.
56. Differences within license suite are based on combinations of 4 different conditions. Boil down to three things: 1) whether they allow commercial use; 2) whether they allow derivatives; 3) whether derivatives must be released under identical terms
57. Allows others to copy, distribute, display, perform the work for noncommercial purposes only.Creator retains commercial rights, users can request special permission. Definition a bit vague but a few things are clear: (1) license defines NC by type of use, not type of user. (2) peer to peer file sharing is NC. (3) 2009 study showed that licensees are more conservative than licensors about definition of NC. This helps explain lack of disputes.
58. Users can share the work, but cannot alter the work.
59. If a work is licensed with SA, then any derivative works based on it must also be licensed under identical terms. Based on same copyleft concept popularized by GPL and other licenses.
60. Most permissive license. Can be used for any purpose (including commercial purposes)on one condition – attribution to licensor.
61. Can be used for any purpose as long as derivatives licensed under same license. Purpose of SA to keep things in the commons, but limiting because SA content requires SA downstream. (Major adopter: Wikipedia)
62. Open means you can access, share, adapt. Other licenses all have significant limitations in terms of repurposing options. Open content can be used on Wikipedia.
63. Identical copies only, for any purpose.Note: this excludes even simple translation
64. Can use work in any way, but for NC purposes only. Originally most popular license. But there is long-term slow trend away from NC because it severely restricts what can be done with the licensed work.
65. Can make any use but NC purposes only. All derivatives must be licensed BY-NC-SA. Creates even more limited silo.
66. Most restrictive: non-commercial identicalcopies only
67. Some things you should know and understand about how all of our licenses operate.
68. Only licensor and licensees. CC not involved in transaction. No record of who uses licenses, not involved in license at all.
69. Operates atop © law, so if © not implicated, then conditions do not apply.© may not apply b/c of exceptions/limitations or public domain.This includes facts (especially important in academic context). Also fair use. This is very fundamental aspect of our licenses.Don’t want to impose obligations on actions that are not otherwise covered by copyright.Importance of marking! If you apply a CC license to a work in the public domain, only applies to your original contribution.Same if use 3pt material under fair use.
70. Lasts for duration of copyrightAutomatic termination upon breach, back to ARR
71. Always free to offer work under different terms.But anyone who gets work from CC license can rely unless and until they breach the terms.
72. All CC licenses contain a disclaimer of warranties, so there is no assurance that the licensor has all the necessary rights to permit reuse of the licensed work.This includes whether they own the copyright to it, or whether they have cleared any uses of third-party content that their work may be based on or incorporate.
73. Licenses follow the work. As people create new works based on your work, your original license still applies. They can’t sub-license your work.
74. When licensee creates derivative, people still get original work from original CC license. 2 licenses apply. This is important because it allows creator to always be one in control of enforcement of their own work. (Otherwise rogue downstream licensee could use sub-license as defense to infringement.) Also ensures work always tied to original licensor for attribution purposes. No one can lock down your work or impose new conditions on itBut also introduces complexity. Licenses “stack” on top of each other.
75. CC licenses don’t license or waive these other rights owned by licensor. Additional permissions may be required from licensor. May be 3pts that have © in parts of your work. (addtl permissions may be required from 3pts, too)
76. None in U.S. yet, but courts in other jurisdictions have found copyright infringement where license conditions exceeded.Long legal code is good for something! 
77. Pretty obvious = By enabling access, spreading knowledge. By enabling reuse, allow your content to be used in new and unexpected ways. Leading to innovation. Consistent with basic mission of libraries and academic institutions.
78. Access: Open textbooks can be converted into accessible formats, such as audiobooks and Braille; no additional royalty costs since the rights are pre-cleared via the CC license.
79. Translation: One example of this are the 800+ MIT OCW courses which have been translated into 10 at least languages, all without needing to ask permission from the copyright holder
80. A powerful feature of CC-licensed content is that it can be remixed, customized, kept up-to-date more easily, and even make things like learning materials more affordable.One example of this is Flat World Knowledge.Largest commercial publisher of free and openly licensed college textbooks.Flat World Knowledge incorporate Creative Commons licensing into the core of their business model, offering free online access to digital textbooks under a CC license.Provides affordable print-on-demand physical copies of textbooks and supplemental materials. (on average, 80% less than traditional commercial textbooks)Professors and students can also customize their textbooks using the online platform.
81. Making sure creators receive credit. Increase reach and reputation – for academic scholarship, means increased citation and profile. Also important for provenance. Ensures integrity of research/scholarship because you can always go back to original source.
82. Clarity about rights and responsibilities. Gives more leeway than fair use, especially in terms of reducing transaction costs and uncertainty. Also for licensors: Minimizes time spent on clearance and approval.Keeps focus on bigger picture.
83. Can vary choice of legal tool depending on context. (7 options)Can pick and choose what materials you want to open.
84. © is about expression; facts not subject to ©, only selection/arrangement, means that lots of uses won’t require compliance with conditions anyway if it’s a © license. At a minimum, creates legal uncertainty. Interoperability: waivers eliminate any complexity for users trying to figure out what data sets can be combined; often combining from large number of sources, so this is an especially big concern in data context Coupling with statement of norms means you’ll likely still receive credit. Can be scary, but citation norms typically self-enforcing. (example: bluebook) Do you really want to file a lawsuit when someone forgets to cite?
85. Here, unlike factual data sets, longer works are a better fit with © so attribution triggered at more appropriate times. More certainty.If you stick to CC BY, very few interoperability problems. But potential for stacking. Recommended for maximum dissemination and reuse.
86. The default for all Library-created content (things like study guides and technology tutorials) is CC BY. The Library also employs the CC0 public domain dedication to waive all copyrights to its Open Access bibliographic records.
87. Often this is easy (work for hire). But institutions don’t always own the content. (e.g., stuff students create). One approach: dual licensing (license for institution, license for the public). Decide on appropriate conditions. (don’t forget to think about interoperability concerns) Think about attribution. Flexible attribution: licensor can specify exactly how they want to be attributed. If unspecified, must be done in reasonable manner. Consider specifying “attribution parties” to minimize stacking problems.(3)Consider adding extra permissions, especially if you think other rights may interfere with operation of license.(4) Mark, including source of permission.
88. Importance of marking!Example of best practices when using third party content.
89. This applies no matter where you got access to the work. If you need to go beyond scope, ask permission.Reasonable manner: Generally means: If the work itself contains any copyright notices placed there by the copyright holder, you must leave those notices intact, or reproduce them in a way that is reasonable to the medium in which you are re-publishing the work. Cite the author's name, screen name, user identification, etc. It is nice to link that name to the person's profile page, if such a page exists.Cite the work's title or name, if such a thing exists. It is nice to link the name or title directly to the original work.Cite the specific CC license the work is under, and link to itIf derivative, in addition to above, you have to identify that your work is a derivative.
90. Example of best practices. Make sure it doesn’t look like an endorsement.
91. 3pt content: attribution “stacks” and fair use may or may not apply to your reuse (you should always check that your use is legal and be particularly careful if it incorporates third party content.)Clear any additional rights needed –No reps - May be useful to independently verify if using in a substantial way. Mark – including 3pt content used.
92. Easy to find. CC search links to several search engines. Can specify “commercial purposes” and “modify, adapt.” Also Google and Yahoo via advanced search. Internet Archive, Vimeo, Blip.
93. Huge pool of available “free” content. And CC-licensed content becomes more valuable the more CC licenses are used because we are building a commons of remixable content. Think about how you can add to the pool – lots of low-hanging fruit (pdm for old stuff, put metadata in public domain using waiver so people can enrich it and make your materials easier to find) There are so many ways you can use our tools, and many are a very easy sell b/c consistent with academic mission. Hope you now realize you have another set of tools in your back pocket (in addition to fair use) to help you navigae the unreas world of ©.