IT Law Journal

administrator January 14th, 2008

This abbreviated article was part of a 13-page document, entitled “Creative Commons: Encouraging the ecology of creativity (2007)” acquired from the Creative Commons International office in Berlin on 23 July 2007. Certain footnotes were included to provide additional information about certain recent events.

Creative Commons Attribution 3.0 Unported License.

Creative Commons’ Mission

Creative Commons’ mission is to enable the legal sharing and reuse of cultural, educational, and scientific works. To this end, it offers free and easy-to-use tools to creators and the public to assist them in harnessing the creativity that new technologies make possible - a read/write culture in which we can engage with the content that surrounds us, as distinct from a read-only culture in which we can only passively receive content.

The Problem Creative Commons Seeks to Address

Creative Commons was founded in 2001 to address the problem: on the internet there’s no way to “use” a work without simultaneously making a “copy.” This implicates copyright law — the law that grants creators exclusive rights to control certain activities in relation to their work.

Due to the nature of modern technologies, people are connected in ways never before possible. Now the public can distribute works in a variety of formats of a high, and often, professional quality, and can work collaboratively across boundaries of time and space. In addition, digital technologies offer new ways to create, share and remix new, derivative, and collective works. All of these activities prejudice the exclusive rights of the copyright owner.

As a result (and, of course, subject to fair use), any digital or online use of a work could be said to first require permission. And it is this feature (or bug, depending upon your perspective) that Creative Commons was formed to address.

Creative Commons provides creators with a simple way to say what freedoms they want their creative works to carry- to say that they welcome people making some of the uses of their work that new technologies make. This makes it easy for others to share or build upon creative work. Creative Commons makes it possible for creators to reserve some rights while licensing others to the public, hence its mantra “some rights reserved”; as opposed to the default “all rights reserved” level of copyright protection that requires you to ask permission first. In this way, Creative Commons offers private voluntary tools for creators to adopt to create a public good - a pool of cultural, educational, and scientific content that can be legally and freely accessed, used, and repurposed.

The Creative Commons Project

“Culture Commons”

As mentioned above, Creative Commons was incorporated in 2001 as a non-profit organization. It first offered its tools to the public in December 2002.

Since its inception, it has worked on its “Culture Commons” project, which is designed to expand the pool of creative and educational content that is free for anyone to use, reuse and repurpose.

However, soon after the public release of its tools, it became apparent that Creative Commons needed to work to make these tools relevant to people in different jurisdictions and from different cultures. To this end, it established in 2003 an international license porting project-Creative Commons International (CCi).

Creative Commons International

CCi works to “port” the core Creative Commons licenses to different jurisdictions around the world. The “porting” work involves both linguistically translating the licenses and legally adapting it for the particular jurisdiction in question. This work is lead by volunteer teams in each jurisdiction who are committed to introducing CC to their country, and who consult extensively with members of the public and key stakeholders as part of the porting process.

Once the main porting work has been completed, CCi continues to collaborate with the international affiliates to maintain the licenses and adapt later versions of the licenses, to disseminate information about the licenses, and to share responsibility for the conduct of legal research. In this way, CCi works to maintain an international license architecture and an international network of legal experts.

As CC licenses were “ported” to different jurisdictions around the world, Creative Commons became acquainted with many“different communities that were committed to the ideas and the practice of a commons. As it got to know these communities better, it realized that many fell outside of the strict boundaries of Creative Commons licenses and tools. To support and connect this community, it realized that a new project was necessary — iCommons.

iCommons

The mission of iCommons is to build a global movement that would embrace and extend the infrastructure of freedom. Launched in 2005, iCommons works to support and promote the activities of the global commons community, a community that can extend beyond just Creative Commons project leads, to include CC activists and CC license users to include Wikipedians, A2K communities and free software and free culture activists, to name a few.

Already iCommons has brought together representatives from this community as part of the recent iCommons Summit held in Rio de Janeiro in June 2006. At the Summit, new plans for projects and collaboration were forged.

Science Commons

Launched in early 2005, Science Commons is designed to extend the approach of enabling sharing and collaboration into academia and the sciences.

The Science Commons project is based on the belief that science and education depend on the ability to observe, learn from, and test the work of others. Science Commons works to apply the Creative Commons model of standardized legal agreements and simple technical tools to build a “science commons.”

The Creative Commons Tools

Creative Commons offers a suite of legal and tech tools free to the public for them to use.

Creative Commons licenses¹

Creative Commons licenses provide a simple way for owners of copyright to mark their work with the freedoms they intend it to carry. These freedoms are of two types — the freedom to share, and the freedom to remix — and of course, the two freedoms can be combined. Users can also limit these freedoms in three significant ways — first, by restricting commercial uses, and second, by restricting any derivatives, or third, if derivatives are allowed, by requiring that they be licensed in the same way.

These elements combine to produce six different licenses. The least restrictive is the Attribution license which authorizes both verbatim and derivative use for both commercial and noncommercial purposes and places no requirements on the licensing of derivatives, provided attribution is given. The most restrictive is the Attribution­NonCommercial-NoDerivatives license which permits only verbatim reproduction and distribution for noncommercial purposes, provided that attribution is given — essentially, noncommercial file sharing.

Once a person selects the license that matches their preferences, they receive the license expressed in three different formats: (i) the human-readable Commons Deed which sets out the key license elements and contains human readable license buttons; (ii) the lawyer-readable Legal Code that contains the actual license; and, (iii) the machine-readable Resource Description Framework metadata that describes the key license terms and is then searchable by the customized “find” technologies.

Nothing in this design is intended to modify, or qualify, in any way the law of “fair use” or fair dealing.” Creative Commons licenses add either freedoms or security beyond those provided by “fair use” and “fair dealing.” They are not intended to clarify or enumerate the contours of “fair use” or “fair dealing.”

Internationalization of CC Licenses

As of September 2006, CC licenses have been ported to 33 jurisdictions around the world; including Argentina, Brazil, China, Croatia, Denmark, Israel, South Korea, Mexico, South Africa and Spain. With the launch of the CC licenses in South Africa in June 2005, Creative Commons licenses are now offered in every populated continent. CCi is continuing to work with new jurisdictions to add to Creative Commons global legal network.²

In March 2006, the enforceability of Creative Commons licenses was tested before a court in Amsterdam. The commercial publisher of a magazine used photos of Adam Curry, a well-known podcaster and former MTV VJ, from his Flickr account that were CC-licensed. The court held that the publisher had violated both the “Attribution” and “NonCommercial” license restrictions and failed to properly identify that a Creative Commons license applied to the images. This decision is an important first step in demonstrating the efficacy of CC licenses in different jurisdictions around the world.³

The “Find” tools

Tapping into the machine-readable expression of the Creative Commons licenses, Creative Commons worked with key technology companies to develop search engines that read CC-metadata.

In 2005, both Yahoo! and Google developed search engines that filter searches to find only Creative Commons-licensed works according to their license terms. These search filters are now included in the “Advanced Search” page of both search engines and also Creative Commons’ own ” CC Search.” These search tools make it easy for members of the public to find content that is available under a Creative Commons license, by license type, and to enjoy the benefit of greater access to and greater freedom of use of CC-flexibly licensed content.⁴

In addition to Yahoo! and Google’s customized search, the popular online photo community Flickr introduced the ability to search through some of the 18 million CC-licensed images hosted on Flickr; and, BIipTV, an online video site, also enabled search of its CC-licensed videos. We have added these searches to the “CC Search” page to encourage the development of more content-specific CC-customized searching.

The “Publish” tool

Creative Commons developed a desktop client — ccPublisher — that enables easy publishing of content to the Internet. This tool was developed in response to the realization that many people who wanted to publish online, lacked the resources and knowledge to do so.

ccPublisher is an easy-to-use “drag and drop” tool that facilitates marking content with a Creative Commons license and uploading of that content to the location of the uploader’s choosing; the default upload location is the Internet Archive, which offers free hosting. ccPublisher is cross-platform compatible and its code is licensed under the CC-GNU General Public License so that anyone can adapt the tool for their own content uploading systems. ccPublisher has also been internationalized so that the user interface appears in languages other than English. In a groundswell of community support, five language translations were included in the initial release, all translated by community members in a period of two weeks. Currently, ccPublisher is available in English, Chinese (Taiwan), Croatian, Dutch, Polish and Spanish.

The Collaboration Tool

To facilitate collaboration and allow people to see the interrelationship between creativity and re-creativity, Creative Commons developed ccMixter. ccMixter is a site that invites creators to exercise their rights to rip, mix and mashup under those Creative Commons licenses that allow derivative works and sampling. The site enables artists to see who has remixed their work and to display those tracks that they themselves have remixed in creating their own music. In this way, people can track the genealogy of creativity because ccMixter tracks the relationship between sampled tracks, allowing people to trace the history and referencing between music and encouraging further remixing and reuse. Currently, ccMixter hosts around 5,000 tracks of which about half are remixes.

To extend the collaborative potential of ccMixter beyond the site, Creative Commons released the engine of the software that powers the site as “ccHost.” ccHost has been developed and extended from its initial use as ccMixter so that it applies to all media types, whilst retaining the key strengths of ccMixter - namely allowing for content to be hosted, commented on, and remixed in such a way as to show the interrelationship between it. Creative Commons have engaged in this development work in order to make it easier for others to share and remix all content types.

In 2007, thanks to its extension, ccHost has grown from the engine that powers ccMixter.org into a community­powered, self-sustainable, and award winning Open Source project that is used by Open Clip Art Library (www.opencli­part.org), Open Source Cinema (www.opensourcecinema org), ccMixter South Africa, the Netherlands-based Simuze.nl and others. In addition, several educational projects are installing ccHost to support and enable the sharing of teaching material.

In keeping with our dedication to building a global digital commons, version 3.0 of ccHost adds full localization support for languages around the world including Portuguese, Chinese (traditional and simplified) German, French, and Dutch. ccHost is available under the CC- GNU General Public License. In August 2006, we were thrilled to learn that ccHost was awarded the Linux World Product Excellence Award for “Best Open Source Solution”.

The Creative Commons Acheivements to Date

Over the past 5 years, Creative Commons has witnessed a phenomenal growth in license adoption, an array of high-profile license adopters and important relationships with prominent technology companies. Together these developments have established Creative Commons licensing as part of the dialogue about online rights regulation and integrated our tech tools into key parts of the digital infrastructure.

License Adoption

One year after Creative Commons licenses were released to the public, in December 2003, Creative Commons counted 1 million linkbacks to licenses. By December 2004 there were 16 million linkbacks to licenses. By December 2005, this number climbed to 45 million linkbacks. In June 2006, this number has grown even more exponentially with 140 million Iinkbacks recorded.⁵

Stories of License Adopters

In addition to a phenomenal growth in the quantity of license adoption, we have also learned of incredible stories of how Creative Commons licensing has assisted authors and has enabled more flexible use of copyrighted material. High­profile license adopters include David Byrne and Brian Eno, who CC-licensed their album “Bush of Ghosts” and Pearl Jam who CC-licensed a music video. In addition to these well-known adopters, we have also seen experiences that demonstrate the important cultural contributions that flexibly licensed content can enable. We offer examples from music, film and education in the items below.

Music - Nimrod Lev and Rhythm Beating Silence: Nimrod Lev is a well-known and award-winning Israeli singer/song­writer. He is one of the rare musicians who “made it” - he was signed to Israeli media giant Hed Artzi, was featured prominently on Israeli radio and MTV, and had a huge commercial hit with the song “That’s All the Magic.” But Lev felt exploited by his label who controlled his music and didn’t fairly share its financial rewards. As a result, Lev chose to leave the conventional music industry and use the Web to freely and independently distribute his music. In an interview with the popular Israeli news Web site Nana, Lev stated:

“Do you know an Israeli artist who turned rich from selling their CDs? I don’t. These record companies and various federations represent themselves and not us, and as a result we see almost no money. If they are going to fight the file sharers, they should not do it on our backs, and definitely, not in our names…” I believe that the accessibility to music is the basic right of each person, and we must fight for its preservation.”

These days, Lev and his band, Rhythm Beating Silence, use Creative Commons licenses for their music, videos, and art. The trio capitalizes financially on the online viral success of their creativity by playing shows and working on commissioned projects.

The band, which is highly concerned with making works of art and artists from culturally isolated countries more accessible to the international public, says that it has been able to attract more fans than ever (including many in countries that would not have been open to them as members of the conventional Israeli music industry) as a result of using an open, CC-based approach to distribution.

Film - Teach: In 1999, director Davis Guggenheim (who recently also directed An Inconvenient Truth) and producer Julia Schachter created a film chronicling the experiences of teachers in the Los Angeles Unified School District.

The filmmakers created two powerful documentaries: the Peabody Award-winning The First Year and Teach — which is a short film created to attract talented and passionate people to the teaching profession.

But after a few years, Guggenheim and Schachter realized that while a fair number of people had seen their film, there was still an enormous audience who hadn’t. They also realized that there was a free and easy solution: the Web. So, in February 2006, Guggenheim and Schacter made Teach available under a Creative Commons Attribution-NonCommercial­NoDerivatives license and offered the film online to the public for free. At a live screening in San Francisco hosted by Creative Commons, the filmmakers explained that the CC license was the perfect tool for artists looking to have their work be more freely available to the world. After all, Guggenheim noted, the whole point of making documentaries-which there is generally a limited market for- is to have them be seen by as many people as possible. This is especially true with Teach, he continued, as it was essentially designed to be a recruitment film for teachers.

Education - MIT Open CourseWare:⁶ MIT’s OCW project is designed to provide free access to the prestigious university’s course materials for people around the world. It is a Web-based electronic publishing initiative with the goal of putting materials from virtually all of MIT’s undergraduate and graduate courses online and under the CC Attribution- NonCommercial-ShareAlike license by 2008. Since its launch in 2002, MIT OpenCourseWare has posted 1,285 sets of course material from 33 disciplines online. Visitors to the site come from over 200 countries. Significantly, the Creative Commons license used by MIT offers a free and easy way for MIT course materials to be translated into other languages and customized“for local context. Says one OCW user in Azerbaijan:

“This is a wonderful initiative, something I’ve been dreaming about! It gives great opportunities for studying new things and improving my current education. Commercial distance education is too expensive for people in the country where I live, but what you did make: quality education really available.”

Technical Implementation

Embedding the option of choosing a Creative Commons license into the technical infrastructure of the architecture and applications of the Internet is a key part of realizing our mission. Adding to the success of the search tools developed by Yahoo! and Google, we have also witnessed recently another important implementation.

Microsoft released the Creative Commons Add-in for Microsoft Office in June 2006. This software tool enables the easy addition of CC licenses to works created in Microsoft Office Word, Microsoft Office Excel, and Microsoft Office PowerPoint. The tool is available free of charge at Microsoft Office Online and will enable the 400 million users of Microsoft Office around the world to easily select Creative Commons licenses when they are directly working in an Office program.⁷

Once the Creative Commons Add-in is installed, the option to choose a Creative Commons license is available from the “File” drop-down menu. Upon selecting the CC option, the user is presented with the standard Creative Commons license generator and can select the license of their choosing. Once the license has been chosen, the tool adds the Creative Commons logo, the name of the selected license, and a link to the license’s terms to documents created with Microsoft Office.

The first document to be CC-licensed using this tool was the text of Brazilian Minister of Culture Gilberto Gil’s iCommons Summit keynote speech. The speech was made available in both English and Portuguese.

The Important Work Still To Do

The work that Creative Commons has done over the past five years has been an enormous success. But there is much more to do. It has gone from the basement at Stanford Law School to the cover of Wired magazine, collaborated with key industry players and featured as part of government delegate submissions before the World Intellectual Property Organization. Now that Creative Commons is established as part of the debate and the practice surrounding the regulation (both private and public) of creative, educational and scientific materials, it faces perhaps its biggest challenge of consolidating on that initial success and demonstrating the benefit of “free culture.” Its work over the coming years will focus on the following areas:

• Building a stable “free culture” infrastructure: Creative Commons, of course, is not the only entity crafting licenses designed to dedicate certain copyrights to the public. In addition to its work, the Free Software Foundation’s “Free Documentation License” has become an important free culture license, as it is the framework for Wikipedia. In addition, the BBC’s Creative Archive License, and the French Art Libre license have become important elements in the “free culture” ecology. Unfortunately, these different licenses have not been designed to interoperate: content licensed under one can’t be reused under another. And this incompatibility will increasingly threaten the potential that these different projects all seek to realize. To help resolve this problem, Creative Commons will lead a project to establish an infrastructure for interoperable licenses. The aim will be to enable creative work licensed under sufficiently similar licenses to move between those licenses. That process will be directed by a board independent of, but started by, Creative Commons.
• Extending the base we’ve already built: In addition to these new projects, Creative Commons will of course continue what it has been best at: increasing the breadth of high-profile projects that it can use to showcase the benefit of CC legal and technical tools. It has proven that when it sets the example for how content can be effectively and, on occasion, lucratively shared and reused, people follow suit. It needs to develop and publicize new success stories around video, educational content, images and music. It needs to continue to work with more software companies to get CC options built into the Web and desktop tools that people use everyday. It has seen, through the example of Flickr and soon, no doubt through the example of Microsoft, that people are more than eager to use our licenses when the option to do so is easy and intuitive.
• Expanding work in education: A key part of our future activities includes engaging with educators and education groups/projects to ensure that much more educational and instructional content is available to people at all levels of education and across the geographic and economic spectrum. Creative Commons licenses provide a simple way for this to happen; now Creative Commons has to make sure that the people building tools and resources know how to properly integrate CC into their projects.⁸

Through these important projects, Creative Commons can continue to revive the principles of balance, compromise, and moderation both online and offline and, in doing so, promote and enable participatory culture. Its ongoing work will allow Creative Commons to consolidate on its previous successes and demonstate the importance of “free culture.”

1. The version 3.0 generic licenses are:
   • Attribution 3.0 Unported: Available at http://www.creativecommons.org/licenses/by/3.0/
   • Attribution-NonCommerical 3.0 Unported: Available at http://www.creativecommons.org/licenses/by-nc/3.0/
   • Attribution-ShareAlike 3.0 Unported: Available at http://www.creativecommons.org/licenses/by-sa/3.0/
   • Attribution-NoDerivatives 3.0 Unported: Available at http://www.creativecommons.org/licenses/by-nd/3.0/
   • Attribution-NonCommercial-ShareAlike 3.0 Unported: Available at http://www.creativecommons.org/licenses/by-nc-sa/3.0/
   • Attribution-NonCommercial-NoDerivatives 3.0 Unported: Available at http://www.creativecommons.org/licenses/by-nc-nd/3.0/

   [↩]

2. As of early January 2008, forty three (43) jurisdictions (Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, China Mainland, Colombia, Croatia, Denmark, Finland, France, Germany, Greece, Hungary, India, Israel, Italy, Japan, Luxembourg, Macedonia, Malaysia, Malta, Mexico, Netherlands, New Zealand, Peru, Philippines, Poland, Portugal, Serbia, Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland, Taiwan, UK: England and Wales, UK: Scotland, and the United States) have released their jurisdictional licenses. On the other hand, eight (8) jurisdictions (Hong Kong, Ireland, Jordan, Nigeria, Puerto Rico, Romania, Thailand, and Ukraine) are currently in the process of license porting. Finally, there are also eleven (11) upcoming jurisdictions listed (Bangladesh, Ecuador, Egypt, Guatemala, Norway, Singapore, Tanzania, Tunisia, Turkey, Venezuela, and Vietnam). [↩]
3. In late September 2007, a lawsuit was filed by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult, and which was posted to Flickr under a CC-Attribution license. The parents of the minor complained that Virgin violated their daughter’s right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer was also a plaintiff, and was complaining that Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.” Individuals from the commons argue that the inclusion of Creative Commons in the lawsuit was improper as the CC licenses don’t purport to deal with rights of privacy. Nevertheless, in late November 2007, the plaintiffs in the case voluntarily dismissed Creative Commons from that lawsuit. This was a recognition by the plaintiffs’ counsel that the laws of Texas and the United States give the plaintiffs no cause to sue Creative Commons. For more details, see Linksvayer, Mike. “Creative Commons Voluntarily Dismissed from Lawsuit (http://creativecommons.org/press-releases/entry/7865); Lessig, Lawrence. “From the Why-a-GC-from-Cravath-is-great Department: The lawsuit is over.” (http://lessig.org/blog/2007/11/from_the_whyagcfromcravathisgr.html); and Linksvayer, Mike. “Lawsuit Against Virgin Mobile and Creative Commons – FAQ” (http://creativecommons.org/weblog/entry/7680) [↩]
4. In December 2007, Mahalo (http://mahalo.com/), the “human powered search engine,” announced that they will be integrating CC BY-NC licensing into their search index, making the content reusable for noncommercial purposes. See Parkins, Cameron. “Mahalo Integrates CC Licensing.” (http://creativecommons.org/weblog/entry/7905) [↩]
5. Creative Commons statistics were shared by Giorgio Cheliotis during the iSummit presentation during “Legal Day” in Dubrovnik, Croatia. His main findings are summarized in his website (http://hoikoinoi.wordpress.com/2007/07/02/cc-stats/) For similar information, see Linksvayer, Mike. ““creative commons” percentage by top level domain.” 15 October 2007. (http://creativecommons.org/weblog/entry/7741); “Taking Stock of the Creative Commons Experiment.” 2 October 2007 (http://creativecommons.org/weblog/entry/7701); and “Creative Commons statistics@iSummit 2007.” 28 June 2007. (http://creativecommons.org/weblog/entry/7551) [↩]
6. MIT’s OpenCourseWare (OCW) initiative, first announced in 2001, has grown from a 50-course pilot to a site that includes virtually the entire MIT undergraduate and graduate curriculum. It recently passed the 1,800-course mark. See Vollmer, Timothy. “MIT OpenCourseWare Publishes 1,800th Course.” 8 December 2007. (http://creativecommons.org/weblog/entry/7889). Subsequently, Yale College announced Open Yale Courses (http://open.yale.edu/courses/), thereby making a collection of Yale courses freely available online. See Vollmer, Timothy. ““Open Yale Courses” Debuts Online.” 11 December 2007. (http://creativecommons.org/weblog/entry/7895) [↩]
7. A similar add-in was made available for OpenOffice. See Yergler, Nathan. “Integrated Licensing in OpenOffice.org.” 14 November 2007. (http://creativecommons.org/weblog/entry/7819). [↩]
8. ccLearn is a division of Creative Commons which is dedicated to realizing the full potential of the Internet to support open learning and open educational resources. See http://learn.creativecommons.org/ [↩]

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