... 1.2 billion pieces of. CC licensed work in existence. ... that work to be used in non-commercial or sharealike ....
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.