Copyright Law and the Creative Commons - Global Policy Journal

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Creative Commons Summit, April 2017

Copyright Law and the Creative Commons – Friends or Foes? Stefanie Lo The University of Sheffield

Executive summary

which

requires

an

application

and

This paper aims to identify whether the

individual grant of protection if an author

relationship between Copyright Law and

wishes to protect their work, with

the Creative Commons is of friends or foes

Copyright, the author automatically has

(i.e. whether it is positive or negative) and

broad exclusive rights given by copyright

the ways in which the two have provided

over a piece of work when it is created by

authors with the protection that they wish

the author (for example, when an artist has

to have over their work. Three particular

drawn a painting). Since around 1975,

areas of interest arose from the CC

alternatives such as “copyleft” have

Summit: firstly, the flexibility in CC licences

claimed to allow people to opt out of this

unavailable by Copyright Law; secondly,

traditional “all rights reserved” approach

the Creative Commons filling a legal gap;

and to interact with the work of others in

and thirdly, developments at the Creative

different ways. The Creative Commons is

Commons as an organisation – more than

an example of this trend, and from 2002

just licensing.

has offered its own set of Creative Common licences (“CC Licences”) under a

Introduction

“some rights reserved approach” which

Copyright Law has long been criticised for

are freely available to the public. These CC

its

Licences are some of the most commonly

“one-size-fits-all”

approach

of

automatically bestowing the right of

used

copyright upon every single piece of

works, with now over 1.2 billion pieces of

original work created. Unlike Patent Law,

CC licensed work in existence.

copyright-alternative

protected

Creative Commons Summit, April 2017

The flexibility of CC licences

member of the Creative Commons), he

Whilst the Law can evolve over time and

described

change to fit the needs of society, it would

instances where authors simply do not

need international agreement to change

wish to have a “full set of rights from

the concept of broad exclusive rights given

Copyright Law automatically showered

by

upon them by the Law”. For these

copyright.

Convention

Following

1886

(an

the

Berne

international

copyright

an

increasing

owners,

the

number

CC

of

Licences

agreement signed by 171 signatories),

empower them to exercise varying levels

section 5(2) states that “the enjoyment and

of control over their work that are

the exercise of these rights [of Copyright

currently unable through Copyright Law.

Law] shall not be subject to any formality”,

These licences provide opportunities from

meaning that all countries that acceded to

merely requesting an attribution of their

the convention would make copyright law

name to their re-used work, to a

protection an automatic right. Until this

combination of attribution and stipulation

changes, CC licences offers an opportunity

that work to be used in non-commercial or

to authors of work who did not wish to

sharealike purposes.

have this breadth of rights to dispense with

particularly useful in today’s internet

some of them and create additional

society, where individuals can now use CC

permissions for users to use the works

licences to use the work of others ‘legally’

through contract and the principle of

under certain pre-disclosed conditions

estoppel in the Law (i.e. to prevent

without the fear of breaching copyright

injustice due to inconsistency or fraud such

laws.

This has been

as the concept that one should not go back on their word even if it is not within a

Although delegates at the CC Summit

contract because it would cause injustice)

raised

several

concerns

over

the

application of CC licences, such as During an interview at the CC Summit with

difficulties in determining how to attribute

Michael Carroll (Professor of Law at the

accurately, many artists still spoke very

Washington College of Law and founding

positively of their personal experiences of

Creative Commons Summit, April 2017

the Commons which not only provides

licence that they have selected. It was said

more options to use work in different

later in the interview of Michael Carroll at

ways, but also acts as a positive tool in

the CC Summit, that so far he is only aware

allowing a different development of their

of three court cases held in the US and

work. For example, in a CC Summit talk led

within these cases the licensees have all

by Jesse von Doom (Executive Director of

been successful in enforcing the terms of

the Coalition of Artists and Stakeholders in

CC

Music, CASH), music artists were able to

significantly limited in quantity) of other

apply CC Licences to some of their songs in

similar case law around the world also

order to encourage brand exposure and

appears encouraging for the enforcement

interaction. Through opening the access to

of the CC licences. Although there is well

some of their works, they encouraged free

founded scepticism for CC licences being

downloads of their work as a sample of

legally enforceable, such as when one of

their albums and in practice, this increased

the parties in the contract is undefined or

their

overall

when there may be a lack of contractual

downloads from other paid for platforms

consideration, this appears generally to

such as iTunes.

not have been an issue. However, it may

audience

reach

and

licences.

The

success

(although

perhaps yet prove to be a problem in the One of the reasons why CC licences work

future when an individual may lack

so well is because the copyright owner and

evidence to prove that the other party

any arranged exclusive licensee are the

consented to a licence, a case to current

only ones able to sue for a breach of their

knowledge which has not yet been heard in

rights. If the Copyright owner is opening up

court.

the rights over their work it is likely that they have discussed and agreed to CC

In the meantime, CC licences offer creators

license their work with any exclusive

of work who did not wish to be

licensee. It is also then unlikely for them to

automatically assigned the full breadth of

begin legal proceedings against anyone

rights given by copyright protection, an

who follows the instructions under the CC

opportunity to permit users world-wide

Creative Commons Summit, April 2017

(especially through the internet) to easily

the UK appears very behind and overly

and freely use their work under a certain

restrictive

predetermined conditions chosen by the

exceptions and not accepting exceptions

copyright owner. Other copyright owners

even if the use was indeed “fair”. For

who wish to maintain full protection over

example, although the UK had followed EU

their work have no obligation to apply a CC

recommendations for allowing private

licence and the relationship between the

copying as an exception under the

two seems friendly and advantageous for

Copyright and Rights in Performance

all.

(Personal

in

only

Copies

allowing

for

Private

specific

Use)

Regulations 2014, this was later quashed in The Creative Commons filling a legal gap

2015 in the High Court. This means that for

Under current Copyright Law in many

individuals to be able to carry out these

jurisdictions including the UK, there is a list

acts (which are legal in the other EU

of defences (also known as “exceptions

member states that did implement this

and limitations”) which allows the use of a

law), they would instead have to hope that

work without the consent of the owner of

the copyright owner has given other users

the

conditions

the right to do so through CC Licences, such

predetermined by Law. However, in the

as a simple CC BY 2.0 Licence, which permit

UK, this list of exceptions is a “closed list”

redistribution and copying the material in

and whilst it was initially guided by the EU

any medium as long as the author is

directive, the UK had a list of suggested

attributed.

copyright

in

certain

defences, but has chosen to be more restrictive on its decision on which to

A further example of the need to broaden

include within UK law.

this “closed list” of defences is through orphan works (i.e. work where the

In comparison with the system in place in

copyright owner cannot be located or

the US where there is an open-ended fair

contacted). More than 40% of the

use system allowing any use of work as

copyrighted works in the British Library are

long as a court can deem it to be “fair use”,

estimated to be orphan works and there

Creative Commons Summit, April 2017

are 2 million orphan works in the Imperial

authors of orphan works originally opted

War Museum’s photography collection.

for CC Licences to apply to their work, the

Whilst the owner of the copyright is

work would still be usable even if the

unknown, the EU directive permits the

author was uncontactable. The CC licences

non-commercial digitisation of certain

thus attempt to create a “free culture” –

orphan work by cultural institutions. In

the opposite of when “creators get to

extension to this, the Orphan Works

create only with the permission of the

Licensing Scheme provides an opportunity

powerful, or of creators from the past” as

for a broader commercial use as well more

with these defences it allows new

than just cultural and heritage bodies.

individuals with more freedom to have

However, these licences only last for up to

different expressions on old work and for

7 years at a time and there are application

work to be preserved for public good. In a

and licence fees to pay. It is also estimated

presentation of the future of CC Licences at

that for the “diligent search” required for

the CC Summit, a concept named

the licence to be passed, “it costs

“springing licences” was also introduced.

approximately £44 in labour costs alone to

With this, it aimed to reduce the number of

clear the rights in one work” which is not

orphan works in the future and also to

practical in the terms of the significant

provide owners of copyright further

number of orphan works. This means that

options to protect and allow the work to be

without

copyright

used by others both generally and sooner.

permission, it is still substantially difficult

These licences were ones which would

to digitally copy the work for commercial

start at a later date after a certain

use through fear of a breach of copyright

condition had occurred. For example, a

and difficulties with carrying out a

copyright owner could sign a springing

sufficiently “diligent search” to be granted

licence today and when they died, a CC by

an Orphan Works Licence.

4.0 licence, nor previously in force, would

directly

granted

automatically “spring” into effect rather This restriction of Copyright Law defences, limits the production of new work. Had the

than 70 year period where copyright would

Creative Commons Summit, April 2017

still be in place over the work. It could also

collaborate with one another in a variety of

be conditional that a CC BY-NC 4.0 licence

tasks.

could spring into effect when the creator had made a certain amount of money from

In comparison, an essay by the academic,

the work.

Ginsburg, summarises how Copyright is in “bad odor these days” with just one word:

Until the next copyright reform arrives in

“greed”.

Copyright

Law

appears

to

the UK, the Creative Commons is a useful

monopolise expressions of ideas for

complement to Copyright Law in filling the

private individuals whilst other individuals

gap currently left by the Copyright Law

are unable to use the work of others to

defences and permitting the use of work

expand upon or develop with the

which would otherwise be forbidden or

permission of the original work’s copyright

difficult to obtain permission to use.

owner. Moving beyond the constraints imposed by the limitations of any one

More than just licensing

individual’s or company’s capacity to work,

Lastly, the Creative Commons has come a

the Creative Commons harnesses the

long way from its initial mission to provide

power of the collective, allowing more

a licensing alternative to Copyright Law. As

collaborative use of information. In this

more than just a licensing tool, the

way, it might be argued it supports

Commons

Copyright Law in its overall goal to

now

contributes

to

the

Copyright Law’s goal of rewarding authors’

encourage

efforts

maintaining recognition of the author’s

and

to

encourage

human

knowledge through its “network of skill”.

human

knowledge

whilst

efforts.

During a CC Summit session, Anna Muzgal (Director for Strategy and Development at

A successful example of such collaborative

Centrum Cyfrowe) described this network

work was highlighted at the CC Summit by

as a community where like-minded

Tom Michaels (Professor of Horticultural

individuals

Science from the University of Minnesota).

share

their

ideas

and

In his talk, he spoke of the system used by

Creative Commons Summit, April 2017

the Open Source Seeds Initiative where

flexible alternative that empowers a

plant seeds were placed in the public

copyright owner to choose the level of

domain through pledge for the use of

protection they desire, to filling a gap in

anyone rather than for corporate gain. In

Copyright Law defences, and supporting a

an interview, he explained further about

more general principle of Copyright Law to

the simple two or three lined pledge being

share knowledge, the Creative Commons is

the next step needed after CC licences

a useful tool that complements and well

which avoids legal jargon and is “ethical

supports some of the downsides of

instead of legal”. He also spoke of plans to

Copyright Law.

ensure that any derivative product of the project would also be kept into the public domain

and

available

for

future

development. This is in stark contrast to

Stefanie Lo is a 3rd Year LLB Law (with

Copyright Law where roadblocks have

Spanish Law) student from the University of

arisen with medical developments being

Sheffield.

hindered due to corporate greed, this system instead allows open collaborative sharing and developments for the benefit of all. Conclusion The relationship between Copyright Law and the Creative Commons appears to be a supportive one. From providing a more

Acknowledgements: Thanks to Professor Michael

Carroll

and

Professor

Tom

Michaels for agreeing to be interviewed for this briefing paper and to Dr Yin Harn Lee for commenting on a draft.