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.

Creative use of Creative Commons licenses

OpenBusiness has published a report by the Arts Council England titled “UK Artists – Their Approach To Copyright and Creative Commons” which makes for interesting reading.

The focus of the report is twofold:

  • to investigate how artists working in a digital environment view copyright, which structures many commercial relationships, but often prohibits sharing, copying and the easy adaptation of existing artistic works.
  • to examine why some artists use Creative Commons licences, which, in contrast, facilitate sharing, copying and, depending on the terms of the particular licence used, allow derivative use for commercial or non-commercial purposes.

The report suggests that one key reason for artists’ using CC is that they perceive standard copyright as too complex and costly. CC licences are an effective and practical tool for new media artists, who adapt existing work. Artists are also using CC to exploit network effects and to better market their creative work. CC is still used by an avant-garde of mainly rather young artists; more than 140,000 websites in the UK make use of such licences.

The survey points towards a possible confusion between evolving working practices that involve re-use and remix and an individual caution about their own work. In general it can be summarised that artists are in need of simpler and more appropriate guidelines, which might be provided not only by the law, but also through funding and policy bodies such as Arts Council England.

I have only had a chance to read the executive summary of the report and it is clear from the executive summary that the vast majority of artists interviewed for the report view copyright law as too complex and copyright itself as a barrier to creativity and to earning an income off their works. Their preference is to make use of Creative Commons licenses which many artists interviewed regard as “practical”.

An important consideration for these artists is that their work should be capable of being re-mixed and distributed across the Web. This is not to say that they want to see their work take out of its original context or freely adapted, necessarily, but more that they wish to see their work free to be distributed on the Web and, in the process, attract more attention to the artists themselves. As I mentioned before, Creative Commons licenses provide for greater flexibility when licensing content made available on a medium like the Web.

One interesting finding that emerged from the report is that artists are often not aware of how copyright works and that they regard copyright as being expensive and cumbersome.

On a similar note, I recently conducted an interview with Heather Ford, the Executive Director of iCommons, and she mentioned a pretty exciting project iCommons is involved in locally called ccMixter:sa:

ccMixterSA was launched on September 1, 2005 as a local version of – a music-sharing portal that is taking the world by storm. ccMixter was originally developed out of the success of the renowned Wired Magazine’s free CD project entitled “Rip.Sample.Mash.Share.” Artists like The Beastie Boys, Thievery Corporation, Zap Mama and Gilberto Gil were featured on the CD that accompanied the issue. All the tracks came with a licence that allowed owners of the CD to do more than just listen to the music. In fact, the licence encouraged a kind of interaction with the music that is illegal within the bounds of mainstream copyright law. Songs could be swapped, sampled, mashed up and shared – basically used as the fuel for the individual creative impulse of the listener, without the threat of copyright infringement.

The framework around this innovative approach to music production and dissemination is based on a set of copyright licence models developed by an organisation called Creative Commons. Creative Commons is a global non-profit organisation (with a local branch in Johannesburg) that aims to respond to the failure of traditional copyright law to adequately understand the possibilities of creativity in the digital age. Creative Commons is the brainchild of Stanford Harvard Law professor Lawrence Lessig (, and the organisation has developed a number of licence models that can be used for a range of mediums from film, text and images to music and animation.

Music on ccMixter, which includes remixes of the initial Wired CD “Fine Art of Sampling” competition, is licenced under a Creative Commons Non Commercial Sampling Plus Licence that allows two explicit permissions: 1) non-commercial file sharing and b) non-commercial sampling. This means that you can download the songs freely and legally, and that you can take pieces of the song and transform them into something new, which you can then share on the portal under your own profile. The only condition is that you don’t sell the music.

Most artists on the original Wired CD and most tracks on the international ccMixter site are covered by the more expansive Sampling Plus licence. This licence allows you to lift a snippet of an original song for use in your own composition without the commercial restrictions – which means you could use the new track in a commercial album! The only limitation: use in advertising is excluded and the new work must be very different from the original.

The ccMixter site aims to allow the open and free flow of creative ideas between musicians, producers and music lovers, where collaborations are simple and the evolution and reinterpretation of work is encouraged. The international ccMixter site, in collaboration with the renowned, recently hosted a remix competition where users of the site were given the opportunity to re-interpret and remix a choice of two tracks by the artist Lisa DeBenedictis.

The local version of ccMixter plans to do the same: with the support of YFM and the Go Open Source Campaign (Hewlett Packard, The Shuttleworth Foundation, Canonical and the Meraka Institute at the CSIR), ccMixter will encourage participants of the Mad Half Hour (Weekdays 3pm on YFM) to utilise samples and music on the ccMixter site and share their creative results with other users of the site, both in South Africa and internationally. A small and possibly lesser-known selection of South African musical samples will be basis for the remix competition and hopefully get this new and exciting music sharing platform up and running.

Contrary to certain current perceptions of music sampling and sharing, ccMixter will create a climate where this type of music sharing is well controlled and monitored and artist’s creative property well respected. It also aims to develop the creative drive and technical expertise of aspirant music producers in South Africa by encouraging an open exchange of ideas.

It is precisely this sort of initiative that helps artists find new ways to distribute their works in more creative and flexible ways and which helps to build the local industry in a very organic way.

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.