|
FEATURE |
License
to Share - The Ugly Side of Creative Capitalism and the Irony of the Commons
In the real world,
capitalism has largely influenced the development of the copyright regime
as it exists today. However, the emergence of a cyberspace society requires
us to revisit communitarian values in the light of the unique features of
virtual interaction and the changing expectations and attitudes towards the
control and use of creative works. As copyright legal and technological protections
continue to expand, private initiatives through creative licensing provide
some relief to their restrictions.
Overprotecting intellectual property is as harmful as underprotecting it. Culture is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture.1
Communism as a political movement and its social ideology in common ownership have largely become overshadowed by capitalism such that even existing 'Communist states' have evolved into myriad complicated forms of mixed economic and political entities to adapt to the global trading environment and to facilitate economic progress. The irony is that, in the meantime, what may not have worked as a viable ideological movement in the real world may have the effect of promoting, rather than stifling, the overall creative productivity through novel inventions as well as innovative re-inventions in the cyber realm,2 where the traditional notion of creativity and assumptions of ownership and rights are challenged.3
Due to advanced development
in electronic communications technology and the digitisation of information
in recent history, major fissures between society in the cyber realm and the
real world have arisen that may justify a reconsideration of the idea of common
ownership and what is appropriate for the public domain to electronic goods
and transactions. Some of the major distinctions and differences that may
justify such soul searching are set ?out below.
First, we have seen two schools of thought on the development and use of information
technology in relation to software that both have thrived in practice leading
to the co-existence of an economic model and a non-economically driven movement
in relation to software ownership and rights. Thus, we see free software projects
and networks thriving side-by-side with major software corporations such as
Microsoft. This shows that in this realm and in relation to rights and ownership
of works, both the communitarian and privatisation approach can work just
as effectively.
Second, popular electronic modes of communication over the Internet of different
media formats such as peer-to-peer ('P2P') networks, Flickr, YouTube, Wikipedia
and other digital platforms have led to a decentralisation of creativity through
the dissemination of creative powers to the individual which is generating
unprecedented levels of user-generated content and disincentivising the collectivist
and profit-driven nature of existing media organisations that previously controlled
most creative output, sometimes inconsonant to the desires of the actual creators.
Moreover, perceptions of what is right or wrong in relation to creative content
have changed due to digitisation and practices that may have quickened the
conscience in the past do not elicit any sense of guilt in the present, such
as the rampant sharing of musical works through P2P networks. These social
changes in attitude and expectations should be a major factor in the determination
and implementation of policy and law regulating intellectual property rights.
Third, the borderless nature of the World Wide Web ('WWW') as well as the
greater speed, lower cost and ease of duplication of products and services
also challenges the justifications for the propertisation of, and for restricting
the rights to, creative works, particularly when not only the sharing and
dissemination of works but the development of such technologies are threatened
as well. The benefits offered by new technology as well as by new delivery
methods and format of works reshape the contextual canvas upon which current
copyright laws are painted.
Fourth, the assumption that money begets creativity underlying the intellectual
property regulatory framework has always been challenged and it is facing
even stronger dissent when the benefits, both social and commercial, of re-creativity
through re-use are thrown into the mix. This is most clearly the issue that
has arisen in relation to musical works as we have seen in the last decade
or so when sampling has become a popular component of artistic expression.
Modes of transfer, inter-operability of devices, ownership and rights, the
scope of personal use and the role of technology are still matters of contention.
Fifth, the dangers of
cultural hegemony by rich nations and the recognised need for the transfer
of technology and knowledge to less developed countries, which should go beyond
mere financial assistance, is also a powerful argument in favour of reconsidering
and reconstituting conservative notions of ownership and control over creative
material.
Free Trade, Shackle Culture: The Use of Free Trade Agreements ('FTA's)
to Propagate American Cultural Imperialism
In modern copyright history, there has been a trend towards an increase in
rights both over space and time by providing for legal protection across physical
boundaries,4 and over a greater period of time.5 Opponents of this trend argue
strongly that it goes against the rights of individual consumers and users
and that it has an adverse effect on society as a whole. They point out that
lobbyists for the extension of such protections are large profit driven corporations
and organisations that care more for the bottom line than cultural enrichment.
The vigorous enforcement of their ever expanding legal rights, increasingly
perceivable in the actions taken by rights holders against technology-developers,
adds yet another layer of complexity to the debate.6 The perceptible failure
of the legislature to timely and adequately address rapidly arising issues
and disputes over technological developments have also led to the courts becoming
the determiner of such issues and the final arbiter of such disputes in order
to establish a right balance of rights. They have not always given rise to
outcomes of the greatest clarity or consistency.7 In the meantime, the knee-jerk
reaction of proponents is to quickly promote laws and other methods of protection
that provide strong and unbridled powers of protection and that are ambiguous
enough to allow for legal maneuvering.
To compound matters, the practice of Rights Management of Information ('RMI')
has been developed as the industry's answer to perceived threats to their
economic well-being from the development of information technology. RMI describes
methods that copyright owners take to control access to and usage of digital
works. It mainly consists of increasingly restrictive usage licenses (ie,
End-User License Agreements) in lieu of a full transfer of possession, ownership
and rights over a copy of a work and Technological Protection Measures ('TPM's)
that are reinforced by legislative protection.8 In particular, the increasing
encroachment of technological protective measures in relation to what most
people consider to be legitimate uses of a work, have increasingly garnered
for itself an ill repute.9
The Counter-Culture Movement and Reactionaries: The Creative Commons -
Left of the Middle
Despite these controversial legal developments, market correction mechanism
exists within the WWW itself through the counter-culture movement offered
and led by technology content developers as well as other individual rights
groups such as the Creative Commons ('CC') and the Electronic Frontier Foundation
('EFF'). Returning to the politico-economic comparison, by analogy to the
left-right political spectrum,10 the left wing would consist of the Free Software
('FSM') and Open Source Movements ('OSM'),11 while the right wing will largely
be defined by the mainstream Media and Entertainment Industry whose agenda
is arguably dominated by content distributors rather than creators.
Concomitant with the free software and open source crusade is the Free Culture
Movement ('FCM') which is the social side of the campaign against restrictive
copyright laws and that promotes free distribution of creative works, particularly
over the electronic media, due to their ease of use. Its proponents argue
that such laws hinder rather than promote creativity. FCM is an umbrella term
that covers many sub-categories of organisations that share the main aversion
against strong copyright protection but that can vary in philosophy and approach
towards the actual model that is preferred in its place.
The Creative Commons is one such initiative that is increasing
in prominence.12 It is a non-profit organisation that proposes several versions
of 'some rights reserved' as opposed to 'all rights reserved', which allow
copyright holders to grant some of their rights to the public while retaining
other rights through a variety of licensing schemes.13 The Commons, as we
shall see, falls to the left of the middle and seeks to 'claw-back' rights
to the masses, but through a consistent and 'soft' conciliatory framework.
Inevitably, as is sometimes the case with a mediator, it cannot fully satisfy
both sides and is criticised and disowned by the 'leftists' and treated with
circumspection and suspicion by the 'rightists'.
How does the Creative
Commons Work and What Purpose Does It Serve?
Under the Creative Commons Initiative, there is a set of different licenses
or conditions that the creator can ?use severally or in any given ?combination
to control the future uses of their works. These include such requirements
as: Attribution, Non-Commercial Use only, No Derivative Works (ie no re use),
Share-Alike, and any combination hereof (see table below).14 Consistent with
the borderless nature of the Internet, the licenses apply worldwide.
All Creative Commons licenses
have baseline rights and restrictions, are not revocable, and last for the
duration of the work's copyright. They retain copyright to the extent that
it has not been relinquished by choice and retains the existing exceptions
of fair use, first sale, and free expression rights. Every license requires
licensees to obtain the copyright holder's permission to do any of the things
that have been specifically restricted (eg if the licensee wants to make a
commercial use of a work under a non-commercial use license or to create a
derivative work under a license that disallows it). Also, licensees must keep
copyright notices intact on all copies of the work (provide links to the license
in the copies) and neither alter license terms nor use technology to restrict
other licensees' lawful uses of the work. Every license allows licensees to
copy, distribute, display or perform publicly, make digital public performances
and format shift the work (as a ?verbatim copy).
Other than the enumerated restrictions, the works are released for public consumption, use and re-use in a bid to foster and encourage a permissive culture of sharing. These types of licenses have been adopted by popular Internet sites such as Flickr, ccMixter, Wiki Commons and the Public Library of Science; they have recently been recognised and endorsed in some recent courts decisions such as the 2006 Adam Curry case. In the Netherlands15 A fundamental and integral foundation for the CC project is the recognition of benefits to sharing and re-use of information.
The Creative Commons Movement in Singapore is nascent and it is anticipated that a set of country-specific Singapore CC licenses will be launched later this year. Malaysia has already had a set of Malaysian CC licenses for several years now.16
The main basis of argument against a default position of full copyright protection that the CC movement is seeking to remedy is that the right of re-use can beget greater overall creativity albeit inspired by the source of an original creation as well as promote the benefits of information sharing without restrictions based on wealth. The jurisprudential basis for these arguments is the Utilitarian model espoused by the likes of Bentham and John Stuart Mill whereby a set of legal rules should maximise the overall benefits to society.17
In the end, there is no
clearly right or wrong position to be taken and probably no perfect calibration
for what is to be protected and what should be shared. But as we have seen,
the market and cultural forces will continually seek as optimal a balance
as possible between interest parties through the framework and in the context
of the law. From the chain of events in the last decade or so, it seems that
things will naturally work themselves out through public and private initiatives
so long as there is constant questioning of approaches and vigilance in the
quest to maintain equilibrium. However, the trends in the use of such schemes
as the CC licenses and the behaviour, attitudes and expectations of consumers
should be monitored with a view to determining the appropriate approach that
the law should take and influence changes to rights allocation under the regulatory
regime as a whole.
Warren B. Chik
Singapore Management University
E-mail: warrenchik@smu.edu.sg
Table Describing the Six Main CC Licenses18
| Attribution
Non-commercial No Derivatives (by-nc-nd) This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the 'free advertising' license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can't change them in any way or use them commercially. Attribution Non-commercial Share Alike (by-nc-sa) This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.
Attribution No
Derivatives (by-nd) Attribution Share
Alike (by-sa) |
Notes
1 Alex Kozinski, dissenting in the White v Samsung Electronics America, Inc, 989 F.2d 1512, 1513 (1993), available at: http://notabug.com/kozinski/whitedissent.
2 Information technology in the form of electronic communications (conduit) and products (format) have challenged traditional protectionist measures. New channels and methods of communications include YouTube and Wikipedia which challenges the traditional notions of spatially restricted distribution of information by the minority to the majority; and new formats include image/audio/video compression file formats which challenges traditional notions of finite and tangible copies as physical property.
3 In the first place, whether intellectual creations should be considered property or legally protected rights is still somewhat a matter of debate.
4 IP treaties such as the 1971 Berne Convention for the Protection of Literary and Artistic Works and the WTO administered Agreement on Trade-Related Aspects of Intellectual Property Rights ('TRIPS').
5 Deferring their passage into the public domain and extending the term of commercial exploitation by copyright owners. Eg, the US Copyright Term Extension Act of 1998.
6 For instance, the line of P2P cases that have gone up to the highest courts of countries such as the United States (see Metro-Goldwyn-Mayer Studios, Inc, et al v Grokster, Ltd, et al 545 U.S. 913 (2005) and Australia (see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242) as well as the other actions commenced against successful WWW service/content providers such as Google (by authors associations) and YouTube (most recently by Viacom), largely based upon complaints of copyright infringement.
7 See MGM v Grokster at Note 6. It is only the latest in a string of U.S. Supreme Court cases (which can be traced back to the Sony Corporation of America et al v Universal City Studios, Inc, et al 464 US 417 (1984)) dealing with tough questions relating to P2P technological inventions.
8 Eg the protection of digital rights management technologies and the prohibition of anti-circumvention measures under the US Digital Millennium Copyright Act (DMCA) of 1998, which have been replicated in the copyright legislations of other countries including Singapore. The way that these protections have been drafted have been criticised as being too wide and ambiguous as well as having an adverse effect on fair use/dealing rights.
9 To the extent that even Steve Jobs (CEO, Apple Inc) and Bill Gates (Chairman, Microsoft Corp) have sought to distance themselves from the use of DRM technologies and recent developments have shown a retreat from its use. On 9 April 2007, Apple and EMI reached a landmark deal to eschew the use of DRM in relation to their distributed music which may have long term implications on the future of the role of DRM technologies. Brian Garrity, Winners, Losers in the Apple, EMI Digital Deal, Reuters/Billboard (9 April 2007), available at: http://news.yahoo.com/s/nm20070409/review_nm/apple_dc_1. The recent series of litigation and settlements over the Sony BMG Rootkit that arose from the use of the Rootkit technology for DRM highlights the limits of societal tolerance of DRMs, which can perhaps form a strong basis for legally imposed limitations. It also evidences the other potential problems relating to its use particularly if the form of technology or technique applied is vulnerable to abuse and security risks.
10 Although they are not absolute terms and are defined differently across time and jurisdiction, the left-right polemic can be broadly identified or distinguished with the left favouring 'the interests of the masses', while the right supporting 'the interests of the established propertied classes'. Stephen J. Tansey, Politics: The Basics, 2000, at 73 (Routledge, 2004). See also Johan Söderberg, Copyleft vs. Copyright: A Marxist Critique, First Monday Vol 7 No 3 (March 2002), available at: http://firstmonday.org/issues/issue7_3/soderberg/index.html.
11 What is known as the Free Software Movement ('FSM') began in 1983 by the announcement of the GNU project by Richard Stallman who then co-founded the Free Software Foundation in 1985 in support of the movement. It was basically a drive against proprietary software with restrictive licensing terms and instead sought to offer the alternative of free software and the perpetuation of it through the GNU General Public License. See Joshua Gay (ed), Free Software, Free Society: Selected Essays of Richard M. Stallman (Free Software Foundation, 2002). The birth of the Open Source Movement ('OSM'), or at least its recognition, was largely attributed to an Open Source Summit held in 1998. Unlike the FSM, which was a 'purist' social movement based upon ethical conviction and the sole focus on user's freedom (Free Software Definition), the OSM looked beyond software to other media and also had a less 'purist' and more practical outlook. See Mikko Valimaki, The Rise of Open Source Licensing: A Challenge to the Use of Intellectual Property in the Software Industry (Turre Publishing 2005). It requires among other things free redistribution rights, access to source code, permission to modify and distribute modifications, and the non-discrimination of persons, groups, or fields of endeavor (Open Source Definition).
12 See the Creative Commons website at: http://creativecommons.org/about/licenses/; and http://creativecommons.org/about/licenses/meet-the-licenses. See also, Lawrence Lessig, Free Culture: The Nature and Future of Creativity (Penguin, 2004), available at: http://www.free-culture.cc/freeculture.pdf.
13 See Glenn Otis Brown, Academic Digital Rights: A Walk on the Creative Commons, Syllabus Magazine (April 2003), available at: http://www.campus-technology.com/article.asp?id=7475; and Jonathan B. Weitzman and Lawrence Lessig, Open Access and Creative Common Sense, Open Access Now (10 May 2004), available at: http://www.biomedcentral.com/openaccess/archive/?page=features&issue=16.
14 Every license also carries a full set of other rights. There are also other licenses for more specialised applications such as for sampling and music sharing, for software (GNU GPL and GNU LGPL), for the release of a work free from copyright immediately (Public Domain Dedication) or after a period of time (Founders Copyright) and to offer less restrictive licensing terms to less developed nations. The CC licenses are now at Version 3.0.
15 See Pamela Jones, Creative Commons License Upheld by Dutch Court, Groklaw (16 March, 2006), available at: http://www.groklaw.net/article.php?story=20060316052623594.
16 Available at the Creative Commons website at: http://creativecommons.org/worldwide/my/.
17 Jeremy Bentham, The Classical Utilitarians: Bentham and Mill (Hackett Publishing Company, 2003).
18 The description of these terms is licensed from the CC under the CC Attribution 3.0 license. See: http://creativecommons.org/licenses/by/3.0/.