Common creativity at work (part 3)

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.

Protecting your content: part 2

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 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 had published photo’s of his family on 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 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, 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

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.

Protecting your content: part 1

This post in the first in a series of posts about the various ways you can protect your content. I am going to focus on content that is made available online (shared photos, videos, music as well as content on web sites like blogs) although I will probably deal with offline content to a degree. This topic is quite a broad topic and a proper treatment would require a far more detailed publication than this series so my intention behind this series is to introduce you to a couple concepts and content protection mechanisms and to highlight some of the issues that we, as online publishers, may face in the coming weeks, months and years.

The content protection mechanisms I’ll take a look at will include copyright, creative commons, digital rights management and some alternatives.

The starting point for this post is the Copyright Act of 1978 (as amended). The Copyright Act protects copyright owners from unauthorised use of their content under copyright. It sets out categories of content or media that qualify for copyright and determines what can and can’t be done without permission from the copyright owner. Copyright may exist in the following types of works:

  • Literary works (for example, novels, stories and poetical works; dramatic works, stage directions, cinematographic film, scenarios and broadcasting scripts; text books, treatises, histories, biographies, essays and articles; letters, reports and memoranda; instruction manuals and advertising literature; lectures, addresses and sermons; and written tables and compilations);
  • Computer programs and software (broadly defined as “a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result”);
  • Artistic works (including paintings, sculptures, drawings, engravings and photographs; works of architecture, being either buildings or models of buildings; technical and engineering drawings; or works of artistic craftsmanship);
  • Musical works (consisting of of music, exclusive of any words or action intended to be sung, spoken or performed with the music);
  • Cinematographic films (this means “any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjunction with any other mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer program”)
  • Sound recordings (these are defined as “any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced, but does not include a sound-track associated with a cinematograph film”);
  • Radio and television broadcasts (whether they are transmitted by radio or cable, as are programme-carrying signals).

The Copyright Act does not protect ideas so copyright only comes into being when the ideas are recorded, written down or transmitted. Given the provisions of the Electronic Communications and Transactions Act (“ECT Act”), digital versions or representations of these “works” would also qualify for copyright protection. To qualify for copyright protection under the Copyright Act a person (human or a legal person such as a company or close corporation) must be the author of the work or otherwise the owner of copyright in that work and must be either resident or domiciled in South Africa.

The way the Copyright Act works is that it sets out which forms of distribution and reproduction are reserved for the copyright owner and then takes a look at what is permissable without the owner’s permission. These provisions are pretty detailed so it is worth taking a few minutes to review sections 6 to 9 of the Copyright Act. Essentially (and except where the Copyright Act allows for it), users are not permitted to reproduce or distribute content protected by copyright without the permission of the copyright owner and without paying a royalty (although the payment of a royalty can be waived by the owner).

There are a number of exceptions to this rule in the Copyright Act and can be found in sections 12 to 19 of the Act. These exceptions include making copies of some forms of content solely for personal use, for study purposes or for review purposes.

When you take into account the ECT Act, you begin to appreciate how the Copyright Act impacts on content stored and distributed online. Actually, there is no real magic when it comes to online content. The principles are pretty much the same. If you operate a web site like a blog then it is a good idea to familiarise yourself with copyright law as it applies to you. This includes provisions of the ECT Act which bridge the gap between traditional media and the new media revolution that has been taking place on the Web the last few years.

The ECT Act introduces a new dimension of copyright protection designed to cater for the nature of the Web and services like search engines and content sharing sites. Questions have arisen about the liability of service providers for copyright infringement committed directly by users of their services and even indirectly where the service provider can be said to have facilitated copyright infringement. Examples of this include the almost defunct Napster and services like YouTube.

So one question is whether a service provider like YouTube should be held liable for copyright infringement that occurs on the site by users who upload video that is subject to copyright. The Digital Millennium Copyright Act applies to copyright infringements in the United States and will probably govern copyright infringements on YouTube. In South African law we look to the ECT Act which would apply to a similar service in South Africa. In terms of the ECT Act, a service provider is defined as a party that provides information system services which are, in turn, defined as follows:

“information system services” includes the provision of connections, the operation of facilities for information systems, the provision of access to information systems, the transmission or routing of data messages between or among points specified by a user and the processing and storage of data, at the individual request of the recipient of the service

For starters, a service provider is not liable for copyright infringement where the service provider is a neutral conduit of data over its network. The conditions for this limitation of liability include qualifying for this protection under the Act, not initiating the data transmission in question, selecting the recipient of the data transmission, facilitating the transmission using automated systems and not modifying the data as it flows across the network. A service provider will furthermore not be liable for copyright protection where the service provider is not aware that there is infringing content on its network (either by virtue of “actual” knowledge or facts or circumstances which clearly point to the presence of infringing content) and if it acts expeditiously to remove infringing content from its network on receipt of a so-called “take down notice” requiring it to take that content down. There are similar provisions in the DMCA and are often referred to as “safe harbour” provisions.

There are additional provisions which are also pretty important when it comes to services that cache content or which provide tools to link to potentially infringing content. The caching provisions protect a service provider from liability where the service provider temporarily and automatically stores data for onward transmission to its users under certain circumstances which basically amount to a neutral handling of that content. Another important provision in the ECT Act dealing with service provider liability is the provision dealing with “information local tools”. Section 76 provides that:

A service provider is not liable for damages incurred by a person if the service provider refers or links users to a web page containing an infringing data message or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hyperlink, where the service provider-

  1. does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of that person;
  2. is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent;
  3. does not receive a financial benefit directly attributable to the infringing activity; and
  4. removes, or disables access to, the reference or link to the data message or activity within a reasonable time after being informed that the data message or the activity relating to such data message, infringes the rights of a person.

This clause is particularly relevant to search engines. You may recall instances where Google was taken to court over the fact that it provided links to and cached infringing content. For the most part, the courts hearing those cases found that Google was not liable for copyright infringement and were such a case to go before a South African court, the result may well be the same under section 76 of the ECT Act.

If you take into account the definition of a service provider mentioned above, you will realise that a service provider includes not just services like YouTube and Google but also employers who provide an information system to its employees and companies that provide hosting services to their customers. It is a very good idea to implement terms of use that govern the use of your information systems and which protect you, at least vis a vis your users, from copyright infringement claims and any action you may be required to take to remove offending content from your networks and/or services.

As you can imagine, it would take quite a bit more than this post to give you a more comprehensive overview of copyright law in South Africa. I hope that this post has given you a good starting point and a few ideas about the issues you may be facing.

Google didn’t infringe copyright

Google has been under fire for allegedly breaching copyright for a little while now. ZDNet has reported that one such case has been thrown out:

“In a legal win for Google, a federal judge dismissed a lawsuit filed by a writer who claimed the search giant infringed on his copyright by archiving a Usenet posting of his and providing excerpts from his Web site in search results.

The lawsuit was filed by Gordon Roy Parker, also known as Ray Gordon, who publishes his writings under the business name of Snodgrass Publishing Group. Parker, of Philadelphia, also posted a chapter of one of his e-books on the Usenet bulletin board network, a collection of thousands of discussion forums called newsgroups.

In his 2004 lawsuit against Google, Parker alleged that the search giant violated copyright law by automatically archiving a copy of his posting on Usenet and by providing excerpts from his Web site in search results.

However, the U.S. District Court for the Eastern District of Pennsylvania ruled on Friday that under case law, Google’s activities, akin to those of an Internet Service Provider, do not constitute infringement (click for PDF of court documents).

“When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing,” the court said.

The ruling cited a January decision in the Field v. Google case in federal court in Nevada that concluded that cached versions of Web pages Google stores and offers as a part of many search results do not infringe copyright.”

This isn’t quite the end of the road for copyright litigation against Google:

“The ruling comes after a decision last month in which a federal judge in Los Angeles said that portions of Google’s image search feature, which displays thumbnail versions of images found on adult photo site Perfect 10 and others, likely violate U.S. copyright law.

The search engine also faces copyright lawsuits filed last year by authors and publishers groups over its controversial Library Project book-scanning plans, and a lawsuit filed by Agence France-Presse and threat of litigation from the World Association of Newspapers for aggregating headlines and photos without permission or compensation.

In a legal blow to Google earlier this week, a federal judge in San Jose, Calif., said he would grant federal prosecutors at least part of their request for excerpts from Google’s index of Web sites. Google is challenging a subpoena from the Department of Justice for a random sampling of Internet addresses and search queries that the DOJ says it needs to help defend a measure designed to hold Web sites liable if minors can access pornography on them.”

(via Slashdot and Inside Google)

It remains to be seen whether caching by a search engine will qualify as a copyright infringement in South African law. Section 74 of the Electronic Communications and Transactions Act (Act 25 of 2002) exempts a service provider from liability for caching in certain instances, namely:

“(1) A service provider that transmits data provided by a recipient of the service via an information system under its control is not liable for the automatic, intermediate and temporary storage of that data, where the purpose of storing such data is to make the onward transmission of the data more efficient to other recipients of the service upon their request, as long as the service provider—­

(a) does not modify the data;

(b) complies with conditions on access to the data;

(c) complies with rules regarding the updating of the data, specified in a manner widely recognised and used by industry;

(d) does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain information on the use of the data; and

(e) removes or disables access to the data it has stored upon receiving a take-down notice referred to in section 77.

(2) Notwithstanding this section, a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.”

A similar principle may apply to Google (and other search engines) which essentially copy, index and present links to websites which often contain copyrighted materials.