Summit, April 2017

Copyright Law and the Creative Commons – Friends or Foes? Stefanie Lo The University of Sheffield

Executive summary which requires an application and This paper aims to identify whether the individual grant of protection if an author relationship between Law and wishes to protect their work, with the Creative Commons is of friends or foes Copyright, the author automatically has (i.e. whether it is positive or negative) and broad exclusive rights given by copyright the ways in which the two have provided over a piece of work when it is created by authors with the protection that they wish the author (for example, when an artist has to have over their work. Three particular drawn a painting). Since around 1975, areas of interest arose from the CC alternatives such as “” have Summit: firstly, the flexibility in CC licences claimed to allow people to opt out of this unavailable by Copyright Law; secondly, traditional “all rights reserved” approach the Creative Commons filling a legal gap; and to interact with the work of others in and thirdly, developments at the Creative different ways. The Creative Commons is Commons as an organisation – more than an example of this trend, and from 2002 just licensing. has offered its own set of Creative Common licences (“CC Licences”) under a Introduction “some rights reserved approach” which Copyright Law has long been criticised for are freely available to the public. These CC its “one-size-fits-all” approach of Licences are some of the most commonly automatically bestowing the right of used copyright-alternative protected copyright upon every single piece of works, with now over 1.2 billion pieces of original work created. Unlike Law, CC licensed work in existence. Creative Commons Summit, April 2017

The flexibility of CC licences member of the Creative Commons), he Whilst the Law can evolve over time and described an increasing number of change to fit the needs of society, it would instances where authors simply do not need international agreement to change wish to have a “full set of rights from the concept of broad exclusive rights given Copyright Law automatically showered by copyright. Following the Berne upon them by the Law”. For these Convention 1886 (an international copyright owners, the CC Licences agreement signed by 171 signatories), empower them to exercise varying levels section 5(2) states that “the enjoyment and of control over their work that are the exercise of these rights [of Copyright currently unable through Copyright Law. Law] shall not be subject to any formality”, These licences provide opportunities from meaning that all countries that acceded to merely requesting an attribution of their the convention would make copyright law name to their re-used work, to a protection an automatic right. Until this combination of attribution and stipulation changes, CC licences offers an opportunity that work to be used in non-commercial or to authors of work who did not wish to sharealike purposes. This has been have this breadth of rights to dispense with particularly useful in today’s internet some of them and create additional society, where individuals can now use CC permissions for users to use the works licences to use the work of others ‘legally’ through contract and the principle of under certain pre-disclosed conditions estoppel in the Law (i.e. to prevent without the fear of breaching copyright injustice due to inconsistency or fraud such laws. as the concept that one should not go back on their word even if it is not within a Although delegates at the CC Summit contract because it would cause injustice) raised several concerns over the application of CC licences, such as During an interview at the CC Summit with difficulties in determining how to attribute Michael Carroll (Professor of Law at the accurately, many artists still spoke very Washington College of Law and founding positively of their personal experiences of Creative Commons Summit, April 2017

the Commons which not only provides licence that they have selected. It was said more options to use work in different later in the interview of Michael Carroll at ways, but also acts as a positive tool in the CC Summit, that so far he is only aware allowing a different development of their of three court cases held in the US and work. For example, in a CC Summit talk led within these cases the licensees have all by Jesse von Doom (Executive Director of been successful in enforcing the terms of the Coalition of Artists and Stakeholders in CC licences. The success (although Music, CASH), music artists were able to significantly limited in quantity) of other apply CC Licences to some of their songs in similar case law around the world also order to encourage brand exposure and appears encouraging for the enforcement interaction. Through opening the access to of the CC licences. Although there is well some of their works, they encouraged free founded scepticism for CC licences being downloads of their work as a sample of legally enforceable, such as when one of their albums and in practice, this increased the parties in the contract is undefined or their audience reach and overall when there may be a lack of contractual downloads from other paid for platforms consideration, this appears generally to such as iTunes. not have been an issue. However, it may perhaps yet prove to be a problem in the One of the reasons why CC licences work future when an individual may lack so well is because the copyright owner and evidence to prove that the other party any arranged exclusive licensee are the consented to a licence, a case to current only ones able to sue for a breach of their knowledge which has not yet been heard in rights. If the Copyright owner is opening up court. the rights over their work it is likely that they have discussed and agreed to CC In the meantime, CC licences offer creators license their work with any exclusive of work who did not wish to be licensee. It is also then unlikely for them to automatically assigned the full breadth of begin legal proceedings against anyone rights given by copyright protection, an who follows the instructions under the CC opportunity to permit users world-wide Creative Commons Summit, April 2017

(especially through the internet) to easily the UK appears very behind and overly and freely use their work under a certain restrictive in only allowing specific predetermined conditions chosen by the exceptions and not accepting exceptions copyright owner. Other copyright owners even if the use was indeed “fair”. For who wish to maintain full protection over example, although the UK had followed EU their work have no obligation to apply a CC recommendations for allowing private licence and the relationship between the copying as an exception under the two seems friendly and advantageous for Copyright and Rights in Performance all. (Personal Copies for Private Use) Regulations 2014, this was later quashed in The Creative Commons filling a legal gap 2015 in the High Court. This means that for Under current Copyright Law in many individuals to be able to carry out these jurisdictions including the UK, there is a list acts (which are legal in the other EU of defences (also known as “exceptions member states that did implement this and limitations”) which allows the use of a law), they would instead have to hope that work without the consent of the owner of the copyright owner has given other users the copyright in certain conditions the right to do so through CC Licences, such predetermined by Law. However, in the as a simple CC BY 2.0 Licence, which permit UK, this list of exceptions is a “closed list” redistribution and copying the material in and whilst it was initially guided by the EU any medium as long as the author is directive, the UK had a list of suggested attributed. defences, but has chosen to be more restrictive on its decision on which to A further example of the need to broaden include within UK law. this “closed list” of defences is through orphan works (i.e. work where the In comparison with the system in place in copyright owner cannot be located or the US where there is an open-ended fair contacted). More than 40% of the use system allowing any use of work as copyrighted works in the British Library are long as a court can deem it to be “”, estimated to be orphan works and there Creative Commons Summit, April 2017

are 2 million orphan works in the Imperial authors of orphan works originally opted War ’s photography collection. for CC Licences to apply to their work, the Whilst the owner of the copyright is work would still be usable even if the unknown, the EU directive permits the author was uncontactable. The CC licences non-commercial digitisation of certain thus attempt to create a “free culture” – orphan work by cultural institutions. In the opposite of when “creators get to extension to this, the Orphan Works create only with the permission of the Licensing Scheme provides an opportunity powerful, or of creators from the past” as for a broader commercial use as well more with these defences it allows new than just cultural and heritage bodies. individuals with more freedom to have However, these licences only last for up to different expressions on old work and for 7 years at a time and there are application work to be preserved for public good. In a and licence fees to pay. It is also estimated presentation of the future of CC Licences at that for the “diligent search” required for the CC Summit, a concept named the licence to be passed, “it costs “springing licences” was also introduced. approximately £44 in labour costs alone to With this, it aimed to reduce the number of clear the rights in one work” which is not orphan works in the future and also to practical in the terms of the significant provide owners of copyright further number of orphan works. This means that options to protect and allow the work to be without directly granted copyright used by others both generally and sooner. permission, it is still substantially difficult These licences were ones which would to digitally copy the work for commercial start at a later date after a certain use through fear of a breach of copyright condition had occurred. For example, a and difficulties with carrying out a copyright owner could sign a springing sufficiently “diligent search” to be granted licence today and when they died, a CC by an Orphan Works Licence. 4.0 licence, nor previously in force, would automatically “spring” into effect rather This restriction of Copyright Law defences, than 70 year period where copyright would limits the production of new work. Had the Creative Commons Summit, April 2017

still be in place over the work. It could also collaborate with one another in a variety of be conditional that a CC BY-NC 4.0 licence tasks. could spring into effect when the creator had made a certain amount of money from In comparison, an essay by the academic, the work. Ginsburg, summarises how Copyright is in “bad odor these days” with just one word: Until the next copyright reform arrives in “greed”. Copyright Law appears to the UK, the Creative Commons is a useful monopolise expressions of ideas for complement to Copyright Law in filling the private individuals whilst other individuals gap currently left by the Copyright Law are unable to use the work of others to defences and permitting the use of work expand upon or develop with the which would otherwise be forbidden or permission of the original work’s copyright difficult to obtain permission to use. owner. Moving beyond the constraints imposed by the limitations of any one More than just licensing individual’s or company’s capacity to work, Lastly, the Creative Commons has come a the Creative Commons harnesses the long way from its initial mission to provide power of the collective, allowing more a licensing alternative to Copyright Law. As collaborative use of information. In this more than just a licensing tool, the way, it might be argued it supports Commons now contributes to the Copyright Law in its overall goal to Copyright Law’s goal of rewarding authors’ encourage human knowledge whilst efforts and to encourage human maintaining recognition of the author’s knowledge through its “network of skill”. efforts. During a CC Summit session, Anna Muzgal (Director for Strategy and Development at A successful example of such collaborative Centrum Cyfrowe) described this network work was highlighted at the CC Summit by as a community where like-minded Tom Michaels (Professor of Horticultural individuals share their ideas and Science from the University of Minnesota). In his talk, he spoke of the system used by Creative Commons Summit, April 2017

the Seeds Initiative where flexible alternative that empowers a plant seeds were placed in the public copyright owner to choose the level of domain through pledge for the use of protection they desire, to filling a gap in anyone rather than for corporate gain. In Copyright Law defences, and supporting a an interview, he explained further about more general principle of Copyright Law to the simple two or three lined pledge being share knowledge, the Creative Commons is the next step needed after CC licences a useful tool that complements and well which avoids legal jargon and is “ethical supports some of the downsides of instead of legal”. He also spoke of plans to Copyright Law. ensure that any derivative product of the project would also be kept into the and available for future development. This is in stark contrast to Stefanie Lo is a 3rd Year LLB Law (with Copyright Law where roadblocks have Spanish Law) student from the University of arisen with medical developments being Sheffield. hindered due to corporate greed, this system instead allows open collaborative sharing and developments for the benefit Acknowledgements: Thanks to Professor of all. Michael Carroll and Professor Tom Michaels for agreeing to be interviewed for Conclusion this briefing paper and to Dr Yin Harn Lee The relationship between Copyright Law for commenting on a draft. and the Creative Commons appears to be a supportive one. From providing a more