“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

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.