Share what you want, keep what you want: The New Copyright
Necessity may be the mother of invention, but I suspect that the earlier inventions of other creative individulas are often the father. For example, ever read a poem and thought of the perfect way to set it? Language can have intense inspirational power, but if the author of that text or a respresentative still holds copyright control, the experience of obtaining the necessary clearance to perform the derivative work can leave a composer wishing inspriration had never hit. Even if all the interested parties would be perfectly agreeable to the usage, they still have to be tracked down and paperwork needs to be drafted and signed before the piece can ever see the light of day. The moral many composers learn? Stick to Emily Dickinson. Rather a loss for modern culture, despite Dickinson’s admitted charms. We don’t live in a vacuum. How can we be expected to create in one?
Since it’s the age of the Internet and all, why not type a few keywords into a search engine and retrieve text or film that the authors have specifically designated as available to others for the creation of new works and avoid the headaches? That’s the simple but big idea that Creative Commons launched a year ago and continues to develop—encouraging the growth of an international public domain. In response to increasingly restrictive default copyright rules (we’ve come a long way from the founding fathers’ conception of how long and how much protection the law offers at the expense of the public domain), Creative Commons gives creators access to free DIY copyright licenses that can be specially tailored to protect the work as much or a little as the creator wants.
Among those already taking advantage of the idea is the Berklee College of Music which has launched a program providing free music lessons online protected by a “Some Rights Reserved” Creative Commons license. Opsound, a cross of experimental record label/website that encourages open sharing and communication among musicians, has developed a large pool of sound work protected by the Creative Commons “Attribution-ShareAlike license”.
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The concept is spreading globally. Glenn Otis Brown, Executive Director of Creative Commons, took some time to talk a bit about the history, philosophy, and future goals of this intellectual property innovation.
Molly Sheridan: Creative Commons was not developed by two guys in a dorm room, it’s a very sophisticated operation. How did this organization come to be what it is today?
Glenn Otis Brown: It started out as an idea of [cyberlaw and intellectual property expert] Lawrence Lessig, [MIT computer science professor] Hal Abelson and [public domain web publisher] Eric Eldred. They all met in Cambridge around the same time, when Abelson was a computer science professor at MIT and Lessig was a law professor at Harvard. Around that time, Lessig took on Eric Eldred’s case challenging the extension of the copyright act. As that lawsuit was getting started, the three of them started talking about how they thought that the public domain and the cause for open access for creative material and education material needed suppliemented by an active effort more than a kind of principal litigation. It needed a voluntary, grassroots movement to rebuild the public domain and build up public access.
That was the idea for Creative Commons, something that would be a non-adversarial, non-advocacy way of supporting the public domain by simply expanding the amount of materials that were available for people to reuse and build upon. Somewhere in between public domain and copyright, which is where the Creative Commons idea really is now. So it started as a conversation between them and some students at the Berkman Center for Internet & Society at Harvard Law School. One of the big principals behind it from the begining has been the idea that there’s an unmet demand for some kind of moderate solution to what’s going on in the copyright world right now. Copyright is very granular and very much a spectrum of different kinds of rights and amounts of control, but the law doesn’t make it easy to exploit that because it applies automatically and fully to all works as soon as they’re created and it lasts a really long time. Copyright holders don’t have to put anybody on notice whether something’s copyrighted or not, you just have to assume that you have to ask permission. It’s really not an efficient way of distributing creative content especially if you’re the kind of person who doesn’t mind if the public makes certain uses of your work. If you look at the list of exclusive rights, the copyright holder gets six or seven, any one of which can be isolated and granted out to the public to a greater or lesser degree. The problem is that to do that in a reliable way you have to spend money on lawyers. So we thought, let’s create some legal documents that help people express this stuff up front so that rights do not have to be cleared along the way and, in this three-tiered way, let’s do it in a way that humans can understand, let’s do it in a way that lawyers can understand and let’s do it in a way that machines can understand, all in the name of efficiency.
Molly Sheridan: I understand that some people may have not even been aware of the extent of modern copyright or the needs behind maintaining a healthy public domain, but was there specifically some anecdotal instances you recall that showed you had to make sure something like Creative Commons happened?
Glenn Otis Brown: Well, yeah, there are a few different things. There’s a great d
emand in the acedemic community for professors and educators to be able to share things voluntarily without going through a centralized rights clearing department. It’s a very tedious thing to put together course materials because you’re constantly having to clear rights even when in the vast majority of cases the rights holder says, please, you don’t even have to ask me.
In the arts it’s important to distinguish the big commercial pressures from the rest who actually produce the majority of culture that gets created. We saw informally a demand for this kind of thing in different areas of the arts, basically by asking how they felt about putting their work online. They answered with the different kinds of conditions and restrictions we have built into our licenses. A lot of people don’t mind if people copy it, but don’t want to see it turn up in a Ford truck commercial. Or don’t want people to pass it off as their own, resell it, or some way alter it. So we took those very intuitive concerns and conditions and put them into different types of licenses that let’s people free up those distribution rights, which in and of itself is essentially taking advantage of the Net.
Even among the commercial and cultural content producers you can see that a lot of people get this. Pop musicians will put on a B-side track that is just one component of a song, essentially encouraging DJs or kids with nice software to make something new from it. There is a realization that it can be a good thing and bring more business or more attention your way to leverage your rights in a clever way.
Molly Sheridan: Yeah, I watched your introductory movie which tells the story of the guy who further developed tracks by the White Stripes. It was pretty enlightening (watch the movie). I think that example makes the CC concept really clear. So maybe I should give you an opportunity to brag a little bit. I think there are people who might argue that if you’re sharing it, it must not be very good. What’s your expereince? Are things of quality getting shared?
Glenn Otis Brown: Well, a great example which has become one of our poster children is a book by Cory Doctorow. He’s a science fiction author based in San Francisco and he published his first novel on his site under a creative commons license and gave his readers the choice if downloading it for free under a pretty restrictive license—no derivative works, no commercial use, have to give him credit—and then right next to that they had the choice of going to amazon.com and buying the paperback published by Tor Books. The first couple of weeks he saw 50,000 downloads of the book. By this point it’s over 100,000 and he’s sold out his first print run of the books for sale. His publisher was always on board with this and I think it’s exceeded their expectations. He’s got a couple of new books that will be coming out soon and now he’s got a readership of over 100,000 which is pretty amazing for a first-timer. So he’s been a good success story as far as a measure of quality.
To educate people about folk music, Roger McGuinn of the Byrds puts up one song a month that he’s recorded himself. He’ll take a song from the public domain and record his own version of it, so he gets the copyright on the performance but not the underlying composition, and then he puts it up in something called the folk den under a CC license so it’s free to download, free to put on a file sharing network, and he doesn’t allow derivative works.
On our site we feature interesting pieces of art or educational materials that are pretty amazing. There are also hundreds of bands on this site called Opsound, which is a big pool of royalty free music from around the world that people contribute to under a license of ours. So we’ve seen some really interesting kinds of creativity that would otherwise be crowded by legal doubt. We also saw someone take a plain acoustic guitar track off of Opsound, re-record it with a lead violin part over it, and put it back into opsound. So you see fun things like that that are technically illegal without a Creative Commons license unless you go through the trouble of finding the author and asking permission…
Molly Sheridan: Well, a lot of your introductory movie is devoted to explaining how a Creative Commons license helps eliminate that middleman, but does the middleman want to be eliminated? Are you getting any challenge on that?
Glenn Otis Brown: Well, that overstates the case a little bit. Rights clearing societies are people we’d like to work with. They serve an important function. The place where we want to get rid of the middle man is where the middle man isn’t even necessary. It’s a social waste to have to ask permission for something when the author would automatically grant permission for it. Intermediaries serve a great purpose in other contexts and lawyers are great if there’s a dispute over a license, certainly in the all rights reserved universe—that’s their role. But it’s perverse that there should be any friction if someone would like to allow certain usages while retaining others.
Another kind of intermediary that we like is people like Common Content. What they do is provide a place where anyone can go and register their Creative Commons works. They’re not hosting the material but they have a really well organized library, a card catalogue essentially. We want to encourage that to outside businesses or non-profits to sort of compete to provide a lot of services around the licenses.
Molly Sheridan: It seems some people have responded in the face of new Internet technology that there is a need for more copyright control, not less, especially where music is concerned? How would you respond to that philosophy?
Glenn Otis Brown: That’s fine. They can exercise that philosophy is my general response. That’s one of the really nice things about our model—it’s completely voluntary so it’s a way of declaring some rights reserved that doesn’t affect the people who want to declare all rights reserved. We would just like for people who are willing to share to be able to do so. We’ll respect the all rights reserved people and we want them to respect us. Our system is very much based on copyright as well.
Molly Sheridan: So let’s say I’m a composer and have music I’m willing to share. I wouldn’t mind a choreographer or a filmmaker using it, so I go to your web site, I fill out the paper work. What happens next?
Glenn Otis Brown: It depends on what you want. You could license it under such terms that where you get credit and you’re willing to let people make new versions of it or make a recording of it. If you wanted to protect your right to make money off of it but you didn’t mind if people play around with it or if high school or college or non-profit community orchestras make some use of it, then you could say no commercial use. Then you could see what happens and if it ever got picked up by someone who is interested in commercializing it, you could then demand that they pay you for it. Or if you’re simply interested in getting your stuff performed then it would be particularly attractive to people if you said they’re free to even commercialize something out of it. That’s an extra step that not everyone wants to do, but it’s at least an option.
Molly Sheridan: So how are people connecting with each other? You are featuring some of these artists on your home page and making people aware of them that way, but in general what third party organizations are popping up that are good for music? If I’m a choreographer and I want to look for this kind of music, where do I go?
Glenn Otis Brown: The Common Content place I mentioned before is a good example, and they’re acros
s media. Opsound.org is a good example for pop and electronic music and everything there is licensed so you’re free to reuse. It’s hundreds of songs. We also try and promote stuff here that catches our eye and we’re definitely encouraging community sites. We also are working with technologists and the developer community, encouraging people to help us build tools for searching for these works. Every license has embedded in it a machine-readable version with markup language. The world we hope for is one in which you go to any search engine and type in “photographs available for non-commercial use and empire state building” and you get a list of things that are out there, and it actually uses the power of the search engine, because there’s no better database right now than the really good search engines. Right now there aren’t many tools that will go out and find that stuff but there are about a million links back to our licenses and the more we populate the web, the more interested different kinds of tool developers will be in creating things that go out and find them.
Molly Sheridan: So say I’m very cynical, and even after knowing all this I’m still unconvinced why anyone would want to let things go into the public pool, even to varying degrees…
Glenn Otis Brown: Well to the varying degrees is the really important part. I mean they feel satisfied that they are getting as much protection as they would ever want, so they aren’t loosing anything because they’re giving up certain rights that they would never have enforced in the first place. The vast majority of culture that gets produced is not-for-profit. It’s done for the love of it or for interest in the community or not for money but for the reputational value and to get their name out there so they can be recognized for what they do. No one picks a creative commons license that doesn’t require attribution. That’s the most important thing to people—the recognition that they’ve created something.
Technology and culture are very much all about collaboration. There are people who want to see what it would be like to build a world where there’s a little more freedom built into the system. The idea of a big pool of royalty free culture that you can contribute too and in return you can draw from it is pretty appealing to a lot of people.
Glenn Otis Brown is Executive Director of Creative Commons. Glenn graduated summa cum laude from the University of Texas at Austin in 1996 and magna cum laude from Harvard Law School in 2000. At Harvard, Glenn was a member of the Harvard Law Review and worked at the Berkman Center for Internet and Society, where he organized Signal or Noise?, a digital music conference and concert, in cooperation with the Electronic Frontier Foundation. Last year, Glenn was assistant producer of Digital Age, a New York public TV show hosted by Andrew Shapiro. He has published articles on copyright and other issues in The Economist, the Harvard Law Review, The New Republic Online, and the Texas Observer, and has made presentations at the South by Southwest Music Festival and 2600 Magazine‘s Hope Conference.