Creative Commons is all about creators, sharing and collaboration. It is founded on the belief that “knowledge and creativity are building blocks of our culture rather than simple commodities for market value” (Creative Commons Certificate videos, 1.2 Creative Commons Today). CC licenses serve to protect your work, ensuring that the creator receives proper credit (or attribution), but they also liberate a creative work so that it can be a catalyst for creation by others. This creation as catalyst for future creation was actually the original intent of the authors of the constitution. The Copyright Clause of the US Constitution was devised”to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (see Justia: Origins and Scope of Power for one discussion of Article 1. Clause 8 of the US Constitution). Notice that the wording in the Constitution is “ to promote” rather than “to protect.”
This clause comes with much interpretation and has gone through a long series of legislative and legal transformations from the “Copyright Act of 1790” through the Digital Millennium Copyright Act, and multiple treaties and court cases. (See the Association of Research Libraries’ Copyright timeline.) In current legislation, the phrase “Exclusive Rights” has been magnified and the phrase “limited Times” has receded into a dark corner. There is a safeguard, Article 7 of the Copyright Act introduces the Fair Use Doctrine, which provides limitations on the creator’s “exclusive rights” to ensure that users are able to make reasonable use of copyrighted materials (see Copyright.gov Subject Matter and Scope of Copyright). More on the Fair Use Doctrine another time (visit Copyright.gov to review the four factors that are at the heart of the doctrine). Relevant to this discussion of Creative Commons, though, is that the four factors that make up the Fair Use Doctrine, like the original Copyright Clause, are written with enough ambiguity to leave them open to significant interpretation and to the creation of non-legally binding guidelines that serve to provide some rationalized approach to their application. This ambiguity allows a certain amount of flexibility in the interpretation, which is good for users, but as formats proliferate and copying and sharing can be done with a few simple keystrokes, the ease of use comes into conflict with the desire to control.
Over time, Congress has responded to efforts to extend the copyright holder’s exclusive rights. The goal of “promoting the progress of Science and useful Arts,” has faded over time. The “limited time” provided for in the 1790 Act was 14 years renewable for another 14 years if the author applied for Copyright. Currently, the amended US Copyright Act provides for exclusive rights for a period of 70 years after the creator’s death. That is a long time to wait to be able to sample a line of music into a new sound mix or to create an animated film of a popular work, or to write fan literature that spins off a popular young adult book series, or even hold a young adult book series themed costume party at a public library. None of these things can transpire legally without the permission of the copyright holder and most likely without the payment of royalties.
Here is where you, as the creator, can make a difference with the help of Creative Commons licenses. Creative Commons licenses provide a clear path to the future use of created works and CC license users select the level of use permitted for their works—no interpretation involved.
Let’s look a little closer at the different events that led to the development of Creative Commons licensing. It isn’t surprising that it has something to do with the growth of the internet and the explosion of new digital formats. The Internet, especially as manifested in the World Wide Web, has made it a piece of cake to share material. Digital formats have made it easier than ever to make copies of works, whether they were originally digital or analog.
Digital technologically accelerated the ease of sharing and this ease came into conflict with the Copyright Law. It has made the commercial publishing world quite nervous. For the creators themselves, digital technologies together with the Web have provided new opportunities to reach audiences, but they have also made it harder for creators to collect payment on their work (think of recording artists)
Pressure to enforce copyright law and to extend copyright term really ramped up in the 1990s. One of the more significant changes to the Copyright Act came with the passage of what is known as the Sonny Bono Copyright Extension Act of 1998. (See also https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act for an extensive and somewhat disheartening discussion of the Extension Act). This act, also known as the Micky Mouse Protection Act, essentially amended Title 17 of the United States Code to add twenty years to every mention of date or length of term of copyright. Thus, the nickname, because the act went into effect just in time to protect Disney’s first Micky Mouse animations.
[This image is taken from the actual text of the Extension Act. As a publication of the United States Government it is in the public domain. ]
The funny thing about this extension act (and this is my personal opinion) is that while it could be construed to protect the rights of the creators, it often provides the most protection to the producers and distributors of the creative work. Creators of intellectual and artistic works often give away the exclusive rights provided them by copyright law to the producers and distributors via contracts. Thus, they receive benefits to a greater and lesser degree according to the contract they sign with the publisher or producer. It isn’t uncommon for contracts to reassign exclusive rights to the publisher.
Creative Commons licenses put control back into the hands of the creators. They do not subvert copyright, they just allow creators to share their agency with the user at the level to which they feel comfortable.
Another important legal milestone, one which directly influenced the establishment of the Creative Commons organization and its licensing platform, was the Eldred v. Ashcroft case, which challenged the constitutionality of the 1998 Copyright Extension Act. The Washington Post’s 2003 “Tech.News.com” (January 15, 2003) column, provides this summery of the case:
The Eldred argument: Online publisher Eric Eldred and Stanford University professor Lawrence Lessig think that Congress violated the Constitution when it passed laws that let copyright owners renew the ownership rights to their works.
The government and entertainment industry argument: The Constitution allows copyrights for a “limited” period and does not preclude Congress from extending the terms of existing copyrights. Lower courts have backed this point of view. The Walt Disney Co., the Motion Picture Association of America and the Recording Industry Association of America are among the groups opposing the Eldred/Lessig argument.
Lawrence Lessig, the founder of Creative Commons, argued on behalf of Eldred in this case. He posited that the Extension Act violated the First Amendment of the Constitution. He also asserted that Congress overstepped its authority in adding the extensions to already existing copyrighted works. The Supreme Court voted 7-2 against Eldred and thus Creative Commons licensing was born—a grassroots effort to give creators and audiences a transparent means for working together.
It might be more accurate to say that Lawrence Lessig’s work on the Eldred Case planted the seeds for the development of Creative Commons. The lawsuit lost an earlier appeal in 2001 and the CC organization released its first licenses in 2002. Lessig, in a 2005 blog post, provides a substantive narrative that describes the Creative Commons vision for licensing. Transparency is the key. This paragraph from his blog post sums it up nicely:
And thus, the motivation for CC licenses: A simple way for authors and artists to express the freedoms they want their creativity to carry. Creators who want to say “All Rights Reserved” need not apply. But creators who want just “Some Rights Reserved” could use our licenses to express that idea simply. And individuals and institutions that wanted to use work they’ve found on the Internet could do so without fearing they would be confused with those who believe in “No Rights Respected” when it comes to copyright.
A more recent description at the CC Website states, “One goal of Creative Commons is to increase the amount of openly licensed creativity in “the commons” — the body of work freely available for legal use, sharing, repurposing, and remixing.”
Creative Commons licensing is easy to understand. A creator may apply the most open license on their work, placing it in the “public domain,” or retain more control through applying a “NonCommercial-No Derivatives” license to their work.
[Taken from the CC Web site, Share Your Work—Licensing Types—Licenses and Examples]
Visiting the CC Web site enables you to explore the different licenses, embed the appropriate symbols in your work, and to fully understand which rights you are sharing and which you are retaining.
Today more than 1.4 billion works, in all formats, have CC licenses. It is used by individuals, institutions, and on major media platforms (https://search.creativecommons.org) including Flikr, Wikipedia, Wikimedia, Europeana, Metropolitan Museum of Art, YouTube, and even Google Images. The licenses have become ubiquitous and are well known within the open community.
Where will the organization go from here?
Creative Commons has always been a not-for-profit organization. Its staff are distributed geographically, which enables the organization to work effectively with creators and with open initiatives across borders and cultures. As an organization, it continues to shepherd its licensing program and it supports the open movement internationally. In its newest strategic plan, Creative Commons points to adopting a growing role in fostering a “global commons” through which they will strive to improve the discovery of cultural and intellectual creations, provide methods of support for creators and further develop the means for greater collaboration among creators and creative communities. As a third goal, Creative Commons will advocate for policies that support openness generally and copyright reform specifically.
Creative Commons supports a “Global Network” of sharing, which includes open initiatives such as Open Data, Open Software, Open Educational Resources (OER), crowdsourcing, Open Science, and Open Innovation. You can find an excellent 2012 exposition on these initiatives at The Conversation, an open, academically oriented site for evidence based journalism. In addition, check out UNESCO’s Global Open Access Portal for a thematic and regional tour of initiatives and movements. You can see CC at work there, as UNESCO states that “All country and region description pages in the Global Open Access Portal are available under CC-BY-SA IGO 3.0.”
This blog post is licensed under CC BY-NC 4.0