• by Brian Kelly , November 28, 2007

Is a new licensing agreement an open-source answer to restrictive copyrights?

As the ways in which content is created and shared rapidly evolve, the law struggles to keep up. Since its inception in 2001, the nonprofit company Creative Commons has attempted to provide licenses that offer choice and flexibility as an alternative to the pre-established agreements offered by traditional copyright.

Its intention is to provide a set of private rights - some rights reserved - in order to create public goods and intellectual property that will be made free for certain uses based upon how the creator chooses to license them. In the digital age content spreads across the globe in a viral fashion, in the best cases imparting inspiration, and, ultimately, resulting in worldwide creative progress at a previously undreamed of rate.

The primary aim of the CC licenses is to offer a set of explicit options that allow the creator to customize an agreement to his specific needs. There are choices to limit further uses of works to noncommercial, with attribution, share alike, no derivatives and other options and combinations that permit the original to be treated in different ways - from allowing free distribution to encouraging others to incorporate and co-opt elements of the work.

The goal of CC reaches far beyond loosening restrictive copyrights, but extends to a nearly utopian vision of cooperation. The aim is to create communities (both real and virtual) where artists, writers, musicians, scientists, designers, architects, academics and others can exchange ideas and accelerate the pace of artistic and intellectual discourse, exponentially.

The main Web site for the company (essentially a hub for all things CC), creativecommons.org, links to sister sites under the Commons umbrella, like ccmixter.com where visitors and members alike can sample, remix, borrow from and riff off the musical works posted to the site. Other divisions, such as ccLearn and Science Commons provide similar tools for educators and scientific researchers, respectively. Outside sites such as Flickr, Jamendo and OpenCourseWare also already offer users the ability to use the limited use copyrights. And more of this sort of encouragement of free exchange is planned.

Millions have taken advantage of the licences, though a representative from CC says they have no way of knowing exactly how many people have used their licensing agreements. In the spirit of the endeavor, they are out there for anyone who wants to use them with no official registration with the company or other notification required. CC has been adopted globally, with licenses in 36 countries in nearly as many different languages. Mainstream musicians, including the Black Eyed Peas, David Byrne, Jeff Tweedy and the White Stripes, as well as esteemed writers such as Cory Doctorow and filmmakers like Bruce McDonald have taken advantage of CC, and it's anticipated that the pool of participants will only expand.

But for every success story, there's an equal amount of public outcry against cc's policies, and as a result, a host of legal and moral debates have followed. Even Richard Stallman, the originator of "the free software movement," has voiced his reservations with cc. "I cannot endorse Creative Commons as a whole, because some of its licenses are unacceptable," he says, "It would be self-delusion to try to endorse just some of the Creative Commons licenses, because people lump them together; they will misconstrue any endorsement of some, as a blanket endorsement of all."

Entertainment lawyer Peter Thall takes issue with the cc model in his book, What They'll Never Tell You About the Music Business: The Myths, the Secrets, the Lies (& a Few Truths), stating that many creators lack the expert knowledge to draw up their own licenses and are often left dissatisfied by their choices. He argues that the licensing agreements are intentionally oversimplified and cut down to size in order to engage the user. This only sets up both parties for disaster. The extensiveness and precision of copyright is designed to avoid any ambiguity that might later result in confusion, inevitably leading to lawsuits.

Others believe cc is only a soi-disant company, lacking a fully realized concept. They say it undermines the value of an author's work by blurring the line between the producer from the consumer, thus dismantling any opportunity for a producer to monetize his product if all works are offered free of charge.

Another complaint stems from there being no way of tracking who used what, and to what extent. To further aggravate the situation, some authors' works have found their way to commercial domains where a profit is being made by illicit means. Some producers suggest a simple mandatory e-mail or written request could alter this predicament, thus enabling exchanges of information by a more efficient and respectful means. For many of the artists involved, realizing a profit is often secondary to getting recognition of a particular work and creative collaboration.

According to Mike Linksvayer, vice president of Creative Commons, "The user base and scope will grow naturally as more people discover more liberal copyright terms are necessary to take full advantage of collaboration in the digital age across many fields, including the arts, education and science. We're pursuing specific initiatives where we believe a move to more liberal copyright terms can immediately unlock value."

The CC community has never taken issue with traditional copyright law, but has expressed concern over the reduction in the scope of fair use, and Linksvayer claims this comes at a time, "when technology makes it possible for everyone to remix culture in a way that contributes to a vibrant democracy and participatory culture." Though if CC wishes to be a part of this shift, it's evident they'll need to implement a more explicit approach, or it may face a future filled with lawsuits.