Legal solutions for innovators and other smart people

creative commons

The White House adopts Creative Commons licensing

Posted Fri, 23/01/2009 - 11:14 by Paul

whitehouse logo.pngJoi Ito, Creative Commons' CEO, pointed to a post on the Creative Commons blog which, in turn, referred to the copyright policy which has been published on the new White House website. The new site went live shortly after Barack Obama became the 44th President of the United States.

Fred Benenson posted the following on the Creative Commons blog:

As you may of heard, the new Whitehouse.gov launched today at 12:01pm during Barack Obama’s inauguration. What you might not have noticed is that the copyright policy of the site stipulates that all 3rd party content is licensed under our most permissive Attribution license ...

Fred's post is titled "Whitehouse.gov's 3rd Party Content Under CC-BY" and is licensed under a Creative Commons Attribution 3.0 license

The White House's copyright policy reads as follows:

COPYRIGHT NOTICE
Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

(emphasis added)

Materials produced by the US government are in the public domain and are, accordingly, not protected by copyright. This license is intended to apply to content contributed by non-governmental sources and published on the White House website. This isn't the first time Obama and his staff selected a Creative Commons license. The Change.gov website, set up to provide a channel during the transition to power, also contains a Creative Commons license which doesn't just apply to content published by the Obama-Biden Transition project:

Except where otherwise noted, content on this site is licensed under a Creative Commons Attribution 3.0 License. Content includes all materials posted by the Obama-Biden Transition project. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Change.gov under the Creative Commons Attribution 3.0 License.

Using open licenses and requiring contributors to these sites to license their content under such a liberal license is a remarkably progressive move and in keeping with a new ethos of transparency and accessibility in the Obama administration.

Content licensing for the Social Web

Posted Fri, 26/12/2008 - 12:09 by Paul

Here is part 2 of the series of videos I have based on a presentation I prepared for the Corporate Social Media Management Conference in October 2008. In this video I talk about content licensing for the Social Web:

In the 3rd video I'll talk a little about an unusual topic in the context of social media: unlawful competition.

Common creativity at work (part 3)

Posted Wed, 17/12/2008 - 15:08 by Paul

In this third and final part of the three part series I expand on the introduction to Creative Commons licenses in the second part and present you with a few examples of where Creative Commons licenses have been used in successful commercial endeavours and why you may want to consider using these licenses in your business.

While many Creative Commons licensed works are free to use and share, this is not necessarily the rule. Works can be licensed under a Creative Commons license and still be sold for profit. It really comes down to the appropriate choice of the license given what you want to achieve. As a content creator you can license your work under a non-commercial license and have a separate license to govern commercial exploitation of your work (in fact, a new protocol called CC+ enables commercial providers to use a non-commercial Creative Commons license, for example, and provide an easy guide to people who wish to make commercial use of the works under a separate license. There are sound reasons for licensing content under Creative Commons in the commercial world.

Magazine publishers may want to license their magazines under a non-commercial license to enable their readers to make copies of interesting articles and pass around to colleagues and friends without having to field and grant permission to each reader. Instead the magazine will contain details of the license and provided the readers don't distribute the articles outside the scope of the license they need never approach the publishers who, in turn, have more time to focus on the business of magazine publishing.

When it comes to creating a greater awareness of your content consider the impact of a group of fans passing around a couple songs recorded by a new band's music to their friends to copy and pass along for personal use as a promotional tool for an upcoming concert or album release. Here is another possibility: imagine being able to buy a CD and being able to legally rip the CD to your computer to play on your iPod? A Creative Commons license enables that and legalises a common practice that, at the moment, is an act of copyright infringement despite fans willingness to buy the CD and not a pirated version online.

(Photo credit: Creating Ghosts I-IV by Rob Sheridan and Tamar Levine published under a Creative Commons Attribution Non-Commercial ShareAlike 2.0 license)

The alternative rock band, Nine Inch Nails, is a pioneer in this space. They release their music online under a non-commercial Creative Commons license and provide varying pricing strategies depending on the album release and the album options. Fans can, for example, download high quality songs for free online or they can buy the same high quality songs from the band's website. The band has also made its music available for free download on BitTorrent and other peer sharing networks. You would be forgiven for thinking that no fan would pay for the music she could simply download for free but this has proven not to be the case where it counts. In fact, this has proved to be a very lucrative model for the band because its fans are determined to support the band by buying the albums even as the band makes albums available for free download online. Nine Inch Nails recently released four instrumental albums called Ghosts I to IV. The band gave fans five options on their website: nine free downloads; $5 for all the albums in high quality audio files; $10 for a two CD set and the downloads; a $75 deluxe edition including the two CDs, a DVD, a Blu-Ray disc and the downloads as well as 2 500 limited edition sets costing $300 each. The $300 sets sold out in a matter of days earning the band $750 000 from that edition alone. What was even more interesting is that the band didn't do this through a record label, it produced and published its music itself.

Nine Inch Nails released its next album, The Slip, under a Creative Commons Attribution Non-commercial ShareAlike license. This album was made available as a free and complete download in addition to a paid physical version of the album.

Locally media companies have been using Creative Commons licenses for somewhat more humble projects which are perhaps more meaningful because they are becoming part of our daily lives in a fairly subtle way. When BMW launched its 1-series promotion a little while ago, it built Creative Commons licenses into the rules governing a video competition where fans created their own videos about the 1-series. Rather than adopting the usual approach of forcing fans to hand over their rights to their videos to BMW, BMW instead licensed the videos from the fans using a Creative Commons license.

FNB recently launched its Shine2010 website and is licensing much of its content to visitors to the site using a Creative Commons license in an effort to encourage people to share the content in their social networks and help build a greater awareness of the content on the website. (Disclosure: we were briefed to develop a legal framework for the Shine2010 website and recommended use of a Creative Commons based license framework)

JoziKids, a wonderful child focussed website, uses Creative Commons licenses to license content created by its advertisers who create listings on the website rather than trying to take ownership of the content in order to provide the listings to visitors to the site. In this way Merle Dietrich strikes a balance between being able to publish rich listings on the site and not interfere unduly in the advertiser's ability to exploit their content commercially outside the website. (Disclosure: we were similarly briefed on this website and recommended use of a Creative Commons based license framework)

Despite its reputation as the hippie-freebie alternative to restrictive copyright, Creative Commons licenses have a role to play in the commercial world where the ability to apply a license to content virtually on the fly and without the costs usually associated with customised licenses is a valuable one. The one caveat in all this is that Creative Commons licenses are not the answer to all your licensing challenges. While they are well thought out legal constructs, there are circumstances which require a custom drafted license prepared by your lawyer of choice to cater for specific needs. That being said it is certainly worth your while to consider using a Creative Commons license to license your content. These licenses better achieve the objective of stimulating creativity, innovation and content sharing while at the same time protecting creators' rights and business models.

Common creativity at work (part 2)

Posted Mon, 15/12/2008 - 14:50 by Paul

In the first part of this series of articles about copyright and Creative Commons licenses I wrote about copyright and how its original purpose has been distorted to stifle creativity and innovation, certainly customers' ability to manipulate and consume these creative works. In this second part of the three part series I will introduce you to content licensing and its pitfalls as well as to Creative Commons licenses which are both misunderstood and rarely appreciated in the commercial world.

One solution may be to just approach the authors of the works concerned for a license that would permit you to do what you want to do with the content. This is a perfectly legitimate approach and what those authors want you to do. Typically this would involve briefing a lawyer to prepare the license (or using a license a lawyer has already prepared) which would regulate the use of the content.

There are, however, some minor difficulties with this approach which include potentially hefty legal fees; having to negotiate the terms of the license each time you want to license something and possibly not being able to really understand the terms of the license. This isn't an issue if you are Acme (Proprietary) Limited with lawyers on the payroll to explain the intricacies of the voluminous licenses under consideration. It is a problem if you don't have the legal expertise or resources to navigate what are often labyrinthine terms and provisions encrypted using 256 bit Legalese (which only a few remarkable lawyers can decrypt completely).

Recognising some of the limitations to this system of copyright enforcement and licensing the smart people at Creative Commons, led by Professor Lawrence Lessig formulated the six Creative Commons licenses I mentioned above. These licenses are combinations of four license elements including attribution, non-commercial use, the prohibition on derivative works (also known as adaptations) and the "share alike" element. Used in different combinations the six licenses range from the more restrictive Attribution Non-commercial No Derivatives license (which requires that the author be acknowledged and prohibits any commercial use of the work or the creation of adaptations of the work) to the Attribution license which merely requires that the author of the work be properly acknowledged.

Each Creative Commons license has three versions: a human readable version, a legal code version and the machine readable version. The human readable version is the version most people see and it clearly summarises the features of the license. The legal code version is encrypted in necessary Legalese and explains what the licenses permit to lawyers in enough detail to satisfy them that the technical stuff is taken care of. Finally, the machine readable code enables software to pick up on the fact that a work is licensed under Creative Commons and, depending on what you are using on your computer, it may even tell you which license is in use.

Another big benefit of Creative Commons licenses is that they are free to use (so no legal fees unless you want to get into the nitty gritty of the legal code and even there it will be your lawyer charging you, not Creative Commons itself) and shares certain features that include the right to share the work for non-commercial purposes, the requirement that the author be properly acknowledged, the perpetual duration of the license and a pretty easy mechanism for selecting and applying the license of your choosing.

Creative Commons licenses attempt to cross the divide between the important protections afforded by copyright and the desire to facilitate sharing in the Commons, a kind of shared collection of resources for the benefit of all. Creative Commons licenses have become an integral part of the free culture movement because of its emphasis on sharing and the Commons and this has been a contributing factor towards the general perception of all Creative Commons licensed works as being free. Aside from the "feel good" benefits of sharing content in the Commons, anyone who participates in the social Web (aka Web 2.0) appreciates the benefits of sharing on the Web both personally and in business. Facilitating sharing on the Web can enable powerful marketing initiatives that can make the difference between obscurity and runaway success. Creative Commons licenses are powerful tools that help make this type of sharing possible.

(Photo credit: Lawrence Lessig taken by Joi Ito and published under a Creative Commons Attribution 2.0 license)

In the final part of this series I explore some of the ways Creative Commons licenses have been and are being used in the commercial world in profitable endeavours. I also attempt to dispel the myth that Creative Commons always equals free and introduce you to examples of where Creative Commons licenses have been used in remarkably profitable endeavours.

Common creativity at work (part 1)

Posted Fri, 12/12/2008 - 14:43 by Paul

I was chatting to a friend who works in the local music industry recently about the possible digital music download models we may see in South Africa in the near future and he passed a comment about the music industry's reluctance to publish and distribute music under Creative Commons license because it can't exactly give the music away for free! After all, this is a "for profit" industry, not some charity (he didn't express this sentiment, I read between the sheet music). While the comment he made wasn't exactly unexpected, it did bother me somewhat because his comment typifies a perception of Creative Commons that is both inaccurate and hampers adoption of Creative Commons licenses in in the commercial world.

I'll pause for a moment and explain what I just wrote because you may not be too familiar with some of the terminology I just threw at you.

For starters, there is an organisation called Creative Commons which formulated a set of content licenses referred to as Creative Commons licenses. There are six core Creative Commons licenses. It isn't necessary to discuss the distinctions between these licenses for the purposes of this article but I am happy to take you through if you would like me to (give me a shout, we'll do coffee). What is important to know is that these licenses operate ion the context of copyright law so they are not alternatives to copyright itself but rather tools that rely on copyright for their efficacy. The reason why this is important to know lies in the nature of copyright.

Copyright is a form of protection that was formulated to encourage innovation and creativity by protecting creators' rights to the works they created (in legalese the creators are known as "Authors" and the stuff they create is known as "Works") and which ensures that their works may only be used in an authorised manner by people authorised by the creator to do so. Copyright protects forms of expression that may include written works (copyright vests in this article as well as in the doodles on your note pad), sound recordings, sheet music and videos, to name just a few types of works.

To put it another way, copyright is a bundle of rights in works which vest in the authors of the works and which are intended to protected works by limiting who can exploit those rights to the works. These rights include the right to make copies, create adaptations of the original works, sell the works and publish those works.

Essentially, once you reduce your ideas to a tangible form you generally enjoy protection through copyright. As a creator you are more likely to create more stuff if your ability to exploit your creations is protected and you are able to guard against any form of unauthorised use of your creations, certainly uses that run contrary to your intended use of your creations.

While it may have been conceived to stimulate creativity, the use of copyright has changed over time to effectively become a bar to creativity and innovation because copyright holders have elected to rather use copyright to lock down their works, preventing the exploitation of those works except in terms of licenses they grant. These licenses permit other people to make use of the works by granting them limited rights to the works concerned. Take a music CD as an example. Many people labour under the misapprehension that when they buy a CD from a music store they become the "owner" of that CD and can do with it what they wish. If you take a look at the tiny print at the back of the CD on your shelf you will notice that when you bought the CD you actually licensed the CD from the nebulous "music company" and you have very limited rights to the music which do not include the right to make copies of the music (whether onto another CD or by ripping the CD to your computer) or pass the music around. You can pretty much listen to the CD and appreciate the fine album art in the company of your personal CD playing devices. You can't play the music in public or make a remix of your favourite tune and share it online. If you do anything outside the very limited parameters of the license granted to you when you handed over your hard earned cash to the cashier, you are committing copyright infringement. That is what licenses do, they set the parameters of your use of the content they are created for and any use outside the parameters of the license is unauthorised and constitutes copyright infringement.

In the second part of this three part series I write a little about the options available to someone who may want to make use of content protected by copyright. I also write about Creative Commons licenses and what they are.

CC+ and CC0 give content creators more creative licensing options

Posted Tue, 18/12/2007 - 13:59 by Paul

Creative Commons has announced two new protocols to expand the existing licensing regime. These two protocols, CC+ and CC0 (CC Zero), expand options on both ends of the spectrum, commercial use on the one end and public domain on the other.

CC+

CC+ facilitates commercial use of content even where there are contradictory license elements like the NonCommercial element applied to content. Basically you still license your content under your usual license and where you have a NonCommercial license applied, you can use the CC+ protocol to assist people who may want to license your work commercially.

This video also has a great explanation of how copyright works so it is worth watching. The flash version of the video isn't as clear as the Quicktime version which you can download here. You can also download the video in Ogg Theora/Vorbis format too.

CC0

This protocol introduces a level of trust to works that are released into the public domain:

CC0 is similar to what the CC public domain dedication does now. The key addition is that the assertion that content is in the public domain will be vouched for by users, so that there is a platform for reputation systems to develop. People will then be able to judge the reliability of content's copyright status based on who has done the certifying.

(via CCZero - CC Wiki - licensed under Creative Commons Attribution 3.0 license) These two protocols are answers to what many people have been asking for and it will be fascinating to see all the services that incorporate these protocols. The CC+ protocol in particular certainly reinforces the contention that Creative Commons does not equal free all the time. You can use Creative Commons licenses and still exploit your works commercially on your terms.

Creative Commons 3.0 licenses released

Posted Wed, 28/02/2007 - 01:13 by Paul

Version 3.0 of the Creative Commons licenses have been released.

The previous version was 2.5. According to the Creative Commons blog:

The latest version of the Creative Commons licenses ” Version 3.0 ” are now available. To briefly recap what is different in this version of the licenses:

Separating the generic from the US license

As part of Version 3.0, we have spun off the generic license to be the CC US license and created a new generic license, now known as the unported license. For more information about this change, see this more detailed explanation.

Harmonizing the treatment of moral rights & collecting society royalties

In Version 3.0, we are ensuring that all CC jurisdiction licenses and the CC unported license have consistent, express treatment of the issues of moral rights and collecting society royalties (subject to national differences). For more information about these changes, see this explanation of the moral rights harmonization and this explanation of the collecting society harmonization.

No Endorsement Language

That a person may not misuse the attribution requirement of a CC license to improperly assert or imply an association or relationship with the licensor or author, has been implicit in our licenses from the start. We have now decided to make this explicit in both the Legal Code and the Commons Deed to ensure that ” as our licenses continue to grow and attract a large number of more prominent artists and companies ” there will be no confusion for either the licensor or licensee about this issue. For a more detailed explanation, see here.

BY-SA ” Compatibility Structure Now Included

The CC BY-SA 3.0 licenses will now include the ability for derivatives to be relicensed under a Creative Commons Compatible License, which will be listed here. This structure realizes CC™s long-held objective of ensuring that there are no legal barriers to people being able to remix creativity in the way that flexible licenses are intended to enable. More information about this is provided here.

Clarifications Negotiated With Debian & MIT

Finally, Version 3.0 of the licenses include minor clarifications to the language of the licenses to take account of the concerns of Debian (more details here) and MIT (more details here).

As part of discussions with Debian, it was proposed to allow the release of CC-licensed works under DRM by licensees on certain conditions ” what was known as the parallel distribution language but this has not been included as part of Version 3.0 of the CC licenses.

The inclusion of the BY-SA 3.0 license is an interesting and helpful inclusion. According to the Creative Commons wiki, the BY-SA 3.0 license operates as follows:

A final change incorporated into Version 3.0 is that the CC BY-SA 3.0 licenses now include a compatibility structure that will enable CC to certify particular licenses, stewarded by other organizations similarly committed to promoting a freer culture, as being compatible with the CC BY-SA. Once certified as compatible, licensees of both the BY-SA 3.0 and the certified CC compatible license will be able to relicense derivatives under either license (eg., under either the BY-SA or the certified CC compatible license).

This addition could really help bridge the gap between Creative Commons licenses and similar licenses employed by other parties and organisations. Although the idea seems to be to impose the governing structure of a Creative Commons license on comparable licenses, the benefit of greater uniformity is going to add more certainty to the copyleft market.

Why bloggers should blog under Creative Commons license

Posted Fri, 22/12/2006 - 02:23 by Paul

Blogs are conversational tools. In my mind, the blogging movement's philosophical parent is the groundbreaking work, The Cluetrain Manifesto which pointed out that markets are conversations. A blog is designed to facilitate conversations. Most blogs have certain common elements which have come to be regarded as defining characteristics of what blogs are. These include comments and trackbacks which have been used to continue and spread conversations that started with one post and which have encompassed many more blogs than were initially contemplated.

There is a barrier to a really free conversation using blogs as the medium and this is the tendency to reserve all rights to published posts. The problem with this is that, without the copyright owner's permission, other people may not copy from that blog post or otherwise reproduce and publish that content. A common practice in the blogopshere is to quote from other blogs or sources when publishing a new post and this becomes problematic where those quotes are from content in respect of which all rights have been reserved by the copyright owner. These rights primarily comprise the rights which are protected under the Copyright Act which, in the case of a blog post (which would likely be classified as a "literary work"), the copyright holder retains the rights to:

  • reproduce the content in any manner or form;
  • publish the content if it wasn't published previously;
  • perform the work in public;
  • broadcast that content; and
  • make an adaptation of the work.

This of course means that if a blogger has reserved all his/her rights to the content in that blog post, other people generally do not have the right to quote from it in your own blog post or in anyway, misappropriate the rights that are reserved. The only legal basis on which another person may, for example, republish an extract from that blog post is if to obtain permission from the copyright owner (which need not be the author of the post) or to take advantage of an exception to copyright infringement (these are set out in the Copyright Act although they don't grant blanket permission to unlicensed use of material protected by copyright). This stifles conversations about the subject matter of those protected blog posts and frustrates the purpose of blogs in general, particularly if you accept that they are conversational tools.

Asserting copyright closes off the flow of the conversation because one of the more effective ways of getting your content out there is by having other bloggers reproduce portions of your content and combining it with their take on the subject matter of your post. There is a good reason for copyright and this shouldn't be discounted altogether. Copyright exists to protect the content creator and that content creator's right to make a living from his/her content. The question should rather be what you, as a content creator, are seeking to achieve and whether reserving all your rights to your published content serves that purpose. We mentioned exceptions to copyright infringement earlier in this post and while they do provide an option to other people who want to make use of protected content, the exceptions set out in the Copyright Act are not always well known or understood and may even require legal advice on whether they apply in a given set of circumstances.

The concept of "fair dealing" which was introduced into the Copyright Act through a 1992 amendment to the Copyright Act. Although somewhat vague, the basic idea is that certain acts, while constituting infringements of copyright, are excused because they constitute fair dealing. Fair dealing is one of the exceptions to copyright infringement and it means that, for example, a portion or whole of a blog post may be copied in certain circumstances. These parameters are set out in section 12 of the Copyright Act and are as follows (the parameters which probably apply more to blogging are highlighted in italics):

  • for the purposes of research or private study by, or the personal private use of, the person using the work;
  • for the purposes of criticism or review of that work or of another work; or
  • for the purposes of reporting current events -
    • in a newspaper, magazine or similar periodical; or
    • by means of broadcasting in a cinematograph film.

It is important to remember that fair dealing only applies to literary, musical and artistic works. It does not apply to sound recordings or other works that don't fall into these categories. Just how much you can copy is a balancing act. There is an argument that our concept of fair dealing should be interpreted in line with the American concept of "fair use" which many people mistakenly applies in South African law too. Certainly this is the approach taken in Australia with their concept of "fair dealing". In the United States the following factors are taken into account when determining what constitutes fair use:

  • the purpose and the character of the use;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used;
  • the effect on the other party's potential market.

So again it comes down to how much you use. At the very least you must acknowledge your source when you reproduce some of that content. From there you must consider the proportionality of the content use. If you copy whole posts without attributing them and start impacting on the traffic to the other blog, you will likely run into problems. We recommend you seek the author's permission before reproducing content when in doubt. It is also a good idea to check the terms and conditions on the site concerned, if they exist. Some sites prohibit any form of reproduction and this may negate the opportunity afforded by fair dealing.

If your intention, as a blogger, is to have your content and your thoughts distributed as widely as possible, then reserving all your rights to your content is counterproductive. A more effective way of distributing your content and still retaining some control over how your content is distributed is using a combination of Creative Commons licenses. Creative Commons licenses can be used to permit certain uses of your content and while enabling you to retain the rights that are most valuable to you. For example, you could license your blog's content using the Attribution Non-commercial No Derivatives (by-nc-nd) license which entails the following:

This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the "free advertising" license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can't change them in any way or use them commercially.

This license scheme enables you to reserve the rights to exploit your content commercially and to have your content shared in the same form you published it in - pretty much what many bloggers would like to do and with the proviso that you are credited as the source of the content. You arguably retain the most valuable rights and still allow the conversation to flow.

It is important to point out that it is still possible to make a living by publishing content under Creative Commons licenses. The key is to select the correct combination of licenses for your specific needs and strike the balance between publishing your content as widely as is possible and still protecting your rights to exploit your content in ways that are most important to you. A goood example of a person who started to publish his content under Creative Commons licences is Andrew Heavens, an Ethiopian photojournalist who decided to publish his photos on his Flickr site under a Creative Commons Attribution-NonCommercial-NoDerivs license (the one described above). When he did this, he discovered something remarkable:

One of the most frustrating things about press photography is the short lifespan of your photographs,¯ says Andrew. You put yourself in a risky situation to record what you consider to be an important, newsworthy event. The resulting pictures flash up on newspaper pages, TV screens and Yahoo! news for a day or so. And then they disappear. The greatest thing that Creative Commons does is give you work an extra lease of life. After the news event has passed on, the photographs are still out there, waiting for someone else to pick up on them, give them a new meaning and use them in a different setting.¯

(Source: iCommons.org)

Creative Commons licenses provide a simpler way to keep conversations going in a truly meaningful way. Reserving all rights to content may seem beneficial in the short term but all it does is to potentially starve the blogosphere of that original and vital content. Using Creative Commons licenses requires is that people think a little differently about licensing schemes and realise that allowing content to be published more widely and legitimately serves a more valuable purpose than holding it all close. There may well be content that should be fully protected. The question is whether your content should be so carefully protected or whether you couldn't, perhaps, let it out to play with the other posts in the blogosphere?

Upload but remember your rights

Posted Mon, 11/12/2006 - 22:53 by Paul

There are so many file sharing sites on the Web today that it is becoming difficult to keep track of them all. There is a wealth of choice and so many ways to store, share and manipulate your content. There is also a hidden danger which you need to be aware of as a content owner.

Each of these sites have their own sets of terms and conditions governing use of the content to the site and what you may or may not upload. Popular examples of these sites include YouTube and Flickr for video and photo uploads, respectively. The reason why you, as a content creator, should be careful when you post to these sites is that once uploaded, your content may be licensed for use in ways you did not intend it to be used. An example of this was recently covered in the iCommons blog:

A friend of mine sent me a link to a message about copyright infringement involving Creative Commons (CC) licences at Buzznet, a community website that allows photo, video and text sharing.

Buzznet.com - serious theft, beware,? writes kmye-chan, a French graphic artist who found her works copied without permission by Buzznets users. Kmye-chan is angered, not just by people copying her works without permission, but also by the Buzznet system, which by default licences all works under a CC Attribution licence.

The gist of her argument is as follows: copying of works without attribution or permission is common on the internet. No big deal, I immediately think. Most of them didnt give credit, so I was going to ask them to credit me, she said. Proper attribution is all she usually cares about, because she feels that the rules of copyright serve as a hindrance to further copying of her works.

But through default open licensing with CC licences, the unauthorised copy becomes available under quite liberal conditions, to which the original author has not agreed. While regular copyright hinders further downstream copying through its all rights reserved rule, CC licensing on this type of site presents the unauthorised copy as available, often even for commercial reuse.

I think this is an important criticism: that the use of CC licensing, upon infringement of the downstream copies of a work, makes the unauthorized copying even more damaging to the author of the original piece.

It is ironic that a site that uses Creative Commons licensing would be subject to criticism for violating users' own licensing conditions but this is just one example of a more pervasive risk. If you intend your content to be licensed in a particular way then you really need to do your homework and review the terms and conditions applicable to the site you are uploading to. More and more sites do support a variety of licensing conditions (Flickr and Zoopy.com [the Zoopy.com reference has subsequently been added as yet another excellent example of a file sharing site that embraces Creative Commons licensing - disclosure: Zoopy.com has been a client of this firm] are two good examples - they allows you to license your photos using a variety of Creative Commons licenses) and if you would prefer your content to be licensed under a specific license then check to see whether your preferred site supports that license.

The alternative is blindly uploading your content and, by doing that, granting a different license to the service concerned that you didn't originally intend to grant. Basically, you give rights away that you originally wanted to retain. It is worth taking a few minutes and review the terms and conditions of the site concerned (or have your lawyer review them for you) before you make use of the service.

Protecting your content: part 2

Posted Tue, 28/11/2006 - 14:48 by Paul

This post is the second in a series of posts on the topic of protecting your content with an emphasis on content published online. The first part of the series took a look at South African copyright law and the impact of the Electronic Communications and Transactions Act on issues such as ISP liability for copyright infringement. In this post I will take a look at Creative Commons and the licenses available under Creative Commons.

So what is Creative Commons? According to the Creative Commons site:

Creative Commons is a new system, built within current copyright law, that allows you to share your creations with others and use music, movies, images, and text online that's been marked with a Creative Commons license.

Basically Creative Commons licenses are part of an supplementary licensing scheme whereby users may grant certain rights of use of their content that fall somewhere between reserving all rights (the usual position under copyright) and opening up the content for indiscriminate use (placing that content into the public domain). You may recall from my first post in this series that content under copyright may only be used or reproduced with the author's or copyright holder's consent. Creative Commons is a way to give that consent. To put it another way:

A Creative Commons license is based on copyright. So they apply to all works that are protected by copyright law. The kinds of works that are protected by copyright law are books, websites, blogs, photographs, films, videos, songs and other audio & visual recordings, for example. Software programs are also protected by copyright but, as explained below, we do not recommend that you apply a Creative Commons license to software code.

Creative Commons licenses give you the ability to dictate how others may exercise your copyright rights—such as the right of others to copy your work, make derivative works or adaptations of your work, to distribute your work and/or make money from your work. They do not give you the ability to restrict anything that is otherwise permitted by exceptions or limitations to copyright—including, importantly, fair use or fair dealing—nor do they give you the ability to control anything that is not protected by copyright law, such as facts and ideas.

Creative Commons licenses attach to the work and authorize everyone who comes in contact with the work to use it consistent with the license. This means that if Bob has a copy of your Creative Commons-licensed work, Bob can give a copy to Carol and Carol will be authorized to use the work consistent with the Creative Commons license. You then have a license agreement separately with both Bob and Carol.

There are a number of licenses to choose from and each one grants certain rights to specific uses of the content. There are six main licenses which you can read about here. The primary elements of these six licenses are attribution (you must acknowledge the source of the content), derivative uses (whether you can modify the content when you reproduce it), commercial use (whether you may use the content in a commercial application or not) and sharing the content under the same Creative Commons license. The various licenses are made up of combinations of these elements.

It is important to note that Creative Commons licenses are not protected by specific statutes. Rather they have a contractual nature in that you publish your content under a Creative Commons license and this establishes a set of terms of use of that content. If someone makes use of your content then they can be taken to be agreeing to those terms and should their use of that content exceed the parameters of the license then that user is in breach of your terms of use. Creative Commons licenses have been tested in court at least once. According to Wikipedia:

The Creative Commons was first tested in court in early 2006, when podcaster Adam Curry sued a Dutch tabloid who published photos without permission from his Flickr page. The photos were licensed under the Creative Commons NonCommercial license. While the verdict was in favour of Curry, the tabloid avoided having to pay restitution to him as long as they did not repeat the offense. An analysis of the decision states, "The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license."

Take a look here and here for more information about the court case. Here is more information from the Canadian Creative Commons site:

From: P. Bernt Hugenholtz, University of Amsterdam: Institute for Information Law

Photographs made available on flickr.com under a Creative Commons Attribution-Noncommercial-Sharealike license may not be reproduced in a weekly magazine without the author’s permission.

On March 9, 2006 the District Court of Amsterdam, judging in summary proceedings, decided the first court case in the Netherlands involving the validity of a Creative Commons license. Local media celebrity Adam Curry (see http://curry.podshow.com/?p=49) had published photo’s of his family on www.flickr.com under a Creative Commons Attribution-Noncommercial-Sharealike license. The photos also carried the notice ‘This photo is public’. The Dutch weekly Weekend, a gossip magazine, had reproduced four photos in a story on Curry’s children without seeking Curry’s prior permission.

Curry sued Weekend for copyright and privacy infringement. As to the copyright claim, Weekend argued that it was misled by the notice ‘this photo is public’, and that the link to the CC license was not obvious. Audax, the publisher of Weekend, alleged that it was informed of the existence of the CC license only much later by its legal counsel. In sum, Weekend had assumed in good faith that no authorization from Curry was needed. Moreover, Curry had not incurred any damages by the publication of the photos in Weekend, since the photos were freely available to the public on flickr.

The Court rejected Weekend’s defense, and held as follows:

“All four photos that were taken from www.flickr.com were made by Curry and posted by him on that website. In principle, Curry owns the copyright in the four photos, and the photos, by posting them on that website, are subject to the [Creative Commons] License. Therefore Audax should observe the conditions that control the use by third parties of the photos as stated in the License. The Court understands that Audax was misled by the notice ‘This photo is public’ (and therefore did not take note of the conditions of the License). However, it may be expected from a professional party like Audax that it conduct a thorough and precise examination before publishing in Weekend photos originating from the internet. Had it conducted such an investigation, Audax would have clicked on the symbol accompyinying the notice ‘some rights reserved’ and encountered the (short version of) the License. In case of doubt as to the applicability and the contents of the License, it should have requested authorization for publication from the copyright holder of the photos (Curry). Audax has failed to perform such a detailed investigation, and has assumed too easily thet publication of the photos was allowed. Audax has not observed the conditions stated in the License […]. The claim […] will therefore be allowed; defendants will be enjoined from publishing all photos that [Curry] has published on www.flickr.com, unless this occurs in accordance with the conditions of the License."

The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license.

The full text of the decision (in Dutch) is available at http://zoeken.rechtspraak.nl/zoeken/dtluitspraak.asp?searchtype=ljn&ljn=AV4204&u_ljn=AV4204

One question you may be asking yourself is the relevance of a foreign initiative to supplement existing copyright law by introducing these licensing schemes. Legal systems develop in their own way and the law in one country or jurisdiction may not be applicable in another jurisdiction. To deal with these variations, local versions of the Creative Commons licenses have been developed in a number of countries, including South Africa. In fact, South Africa was one of the first countries to 'port' Creative Commons licenses into the South African legal framework from the original American licensing scheme.

As a content creator you have a range of options when it comes to choosing which Creative Commons license to use. Aside from the "standard" Creative Commons licenses described above, there are specific licenses which are tailored to music, software code, wikis and even video sampling. This really adds to the flexibility of the Creative Commons scheme and still gives content creators a degree of protection against unauthorised use of their content.

I don't think that it is really possible to discuss Creative Commons without mentioning iCommons. To quote the iCommons site:

Incubated by Creative Commons, iCommons is an organisation with a broad vision to develop a united global commons front by collaborating with open content, access to knowledge, open access publishing and free culture communities around the world.

Using the annual iCommons Summit as the main driver of this vision, iCommons will feature projects that encourage collaboration across borders and communities, and promote the tools, models and practice that facilitate universal participation in the cultural and knowledge domains. The Summit will collaborate with organisations and communities from around the world to demonstrate and share best practice and discuss strategies for continuing the positive impact that “sharing" practices are having on participation in the cultural and knowledge domains.

During the year iCommons will incubate projects that cross borders and unite commons communities, acting as a platform for international collaboration towards the growth and enlivening of a global digital commons.

The blog on the iCommons site is a veritable showcase of initiatives aimed at fulfilling the iCommons goal of open collaboration and a global culture of sharing.