Creative Commons: A License to Share

“For him that stealeth or borroweth and returneth not this book from its owner, let it change into a serpent in his hand and rend him.” In mediaeval times, book curses like this were often used to discourage would-be thieves, defacers or the like. Such protection was seen as crucial to upholding the rights of the book’s owner. Nowadays, the average person understands copyright to be a natural right to restrict the public use of creative work. Copyright laws are intended to strike a balance between the public value of innovation and the protection of private rights.

Creative Commons International (CC), a non-profit organisation formed in 2001, aims to promote the creative re-use of intellectual and artistic works, whether owned or in the public domain. In July 2008, Singapore became the 47th country to offer the CC system of licensing to their jurisdiction. Warren Chik, law professor at the Singapore Management University, is a member of the Creative Commons Singapore team that has worked in close collaboration with Centre for Asia Pacific Technology Law & Policy (CAPTEL) to adapt the licenses to Singapore’s jurisdiction. As Chik points out, beneath their easy-to-grasp wording, these licenses actually reflect significant social and technological changes - to say nothing of political - that have been unfolding in recent years.

In almost every jurisdiction in the world, copyright law tends to support the concept of “all rights reserved”. In other words, from the moment a work becomes “fixed in tangible form”, copyright attaches to it automatically. Rather than reserving all rights, a CC license is based on the concept of “some rights reserved”. It gives the copyright owner the ability to specify what rights others have to copy the work, make derivative works or adaptations, distribute and/or make money from the work. In other words, to what extent people can “share, remix, reuse – legally.”

From campfires to networks

Before the invention of writing, knowledge and culture were conveyed mainly by word-of-mouth. Content was created and reconstructed with little or no concern about its specific origin or source. With the invention of Gutenberg’s printing press, the mass reproduction of books took hold and a sense of ownership of words emerged. In 1710, Britain enacted the Statute of Anne, the first law to formally express such key concepts as copyright (hence intellectual property rights) belonging to the author or creator of a work. Specific time limits for copyright were also introduced after which a work became “public domain”.

Over the centuries, the scope, strength and reach of copyright laws were extended through landmarks agreements like the Berne convention of 1886 (still in force today) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) reached at the 1995 formation of the World Trade Organization (WTO) and revised in 2005. Today, most of the world has extremely strong copyright laws, based on the premise that more intellectual property rights (IPRs) will translate into more creativity. However, present-day technologies such as the Internet and mobile digital networks are redefining and transforming our sense of authorship and copyright. Although the cyberspace may be virtual in a certain sense, lawyers are trying to adapt existing laws to fit the digitised world.

The Great Debate

Critics of IPR protection claim that, like science and technology, culture grows by accretion and therefore depends on a rich and truly public domain. In an article published in 2007 in the Law Gazette, Chik observes that “the social ideology of common ownership intrinsic to communism as a political movement has been overshadowed by capitalism in order for ‘Communist states’ to be able to trade and grow economically.”

Moreover, as a result of “advanced development in electronic communications technology and the digitisation of information, major distinctions between society in the cyber realm and the real world have arisen.” This has led to some who argue for a reconsideration of notions of common ownership, what is deemed appropriate for the public domain and how which, in turn, can be more readily applied in electronic transactions, he adds.

There are several drivers behind this rethink. First, two models in the development and use of software have developed, thrived and are now co-existing. One is an economic model and the other, a non-economically driven movement. “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 or ownership of works, both the commons and privatisation approach can work just as effectively,” says Chik.

Second, popular electronic modes of communication over the Internet have led to the decentralisation of creativity. Just think of names like Flickr, YouTube and Wikipedia, where the concept of user-generated content is key. “Perceptions of right or wrong in relation to digital content have changed. Practices that may have quickened the conscience in the past do not elicit any sense of guilt in the present. These social changes in attitude and expectations should be a major factor in producing and implementing policy and law regulating intellectual property rights,” he adds.

Third, the borderless nature of the Internet means faster speed, lower cost and greater ease in the duplication of products and services. This has resulted in challenges to the justifications for the “propertisation” and restriction of rights on creative works. The benefits offered by new technology, as well as by new delivery methods and format of works, are reshaping the contextual canvas upon which current copyright laws are painted.

Fourth, is in relation to musical works as we have seen in the last decade or so. Modes of transfer, inter-operability, ownership and rights, the scope of personal use and the role of technology are still matters of contention. “The assumption that money begets creativity underlying the intellectual property regulatory framework has always been challenged. It is facing even stronger dissent when the benefits -- both social and commercial -- of re-creativity through re-use are thrown into the mix,” says Chik.

Fifth, the danger of cultural hegemony: real, or perceived. Rich nations do recognise the need to do more than just provide financial assistance to the less developed countries. They also transfer technology, knowledge and culture. In doing so, the process lends weight to a powerful argument in favour of reconsidering and reconstituting conservative notions of ownership and control over creative material.

The culture and impulse of sharing

So what is the Creative Commons framework bringing to the on-going debate? “The main basis of the 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,” says Chik.

The legal basis for this argument is the Utilitarian model –- inspired by the likes of 19th century English philosophers, Jeremy Bentham and John Stuart Mill -- whereby a set of legal rules should maximise the overall benefits to society.

“In the end, there is no clear 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,” says Chik.

He points out that as long as there is a constant vigilance and questioning, both public and private sector initiatives will help work towards an equilibrium. But there is certainly a need to monitor the behaviour, attitudes, and expectations of consumers who are tapping on schemes such as the CC licenses. From the observations, then, should the right legal approach be determined, specifically, on the kind of rights to be allocated under the regulatory environment.

Meanwhile, let’s not also forget that technology constantly changes. The Internet as we know today: a neutral, easily accessed and open infrastructure that is free for participation, might not necessarily stay in this same model tomorrow. For example, the Internet might evolve into one with a more private structure, where the enclosure of information might become similar to enclosure of land during the Industrial Revolution. But for now, the Creative Commons system is one that provides the flexibility between asserting intellectual property rights and the impulse of its authors to share, and of course, without incurring the wrath of serpents.