Cory Doctorow: Creative Commons

from Locus Magazine, November 2007

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Since 2003, the Creative Commons movement has ridden a worldwide revolution in creativity and sharing, inspiring the authors of over 160 million copyrighted works to adopt a "some rights reserved" approach that encourages sharing, remix, and re-use of their works. CC licenses come in a variety of flavors, and in many jurisdictional variants, but at root, they are simple to use and apply, and they bring great benefit to "audiences" and "creators" (and help to blur the details between these two crude categories).

First, some background. Through most of its four-hundred-odd-year history, copyright has only applied to a special class of works, generally those created with the intention of commercial exploitation. Many governments — especially the US government — only granted copyright to authors who registered with a national library, depositing copies of each copyrighted work in the country's authoritative repository of important creative works. These libraries also served as central registries, making it easy to figure out whose permission you needed when you wanted to use a copyrighted work.

But a perfect storm of social, legal, and technical changes resulted in an enormous shift in the way that copyright applies. First, the duration of copyright was extended (and extended, and extended — 11 times in the past 40 years), every time the earliest Mickey Mouse cartoons approached the day of their expiry. This has transformed copyright from a temporary monopoly (originally, the US had a 14-year copyright, renewable by the author for a further 14 years) into a permanent one. This means that while yesterday's authors, readers, fans, printers, and other users of copyrights could draw on a relatively fresh pool of copyrighted works to use for free and without limitation, today's copyright users might have to dig back more than a century to find works that they can copy, transform, and re-use (think of how Walt Disney was able to adapt works by Lewis Carroll and Washington Irving without permission or payment).

In addition to the problem of expanding length of copyright is the expanding scope of copyright. Since 1988, the US has come into compliance with an international copyright accord called the Berne Convention (originally created by Victor Hugo nearly 200 years before to push the US into paying him and other foreigners royalties for the US editions of their work). Berne prohibits "formalities," such as registration with the Library of Congress, for the securing of copyright. This means that today, nearly every single work is copyrighted at the very instant that it is "fixed" (recorded, written, filmed). So while before only a small class of commercial work was roped-off from social re-use by scholars, creators, audiences and educators, today, every single creation is owned by someone from the very instant that it is imagined, and will stay property for a minimum of 70 years and for as long as a century and a half, depending on the lifespan of the author. Meanwhile, most old works languish unloved and unregarded — the Supreme Court found in Eldred v. Ashcroft that some 98 percent of all copyrighted works are not in print or available.

But this isn't the only way that copyright's scope has expanded. Technology — the PC and the Internet — has moved our social lives from the street to cyberspace. In "meatspace," our conversations, interactions, and chin-jawing maunderings tend not to be "fixed" — they're not recorded or written down. No one owns them. If I quote something you said to me over breakfast while I'm at lunch, there's no copyright violation. But if I copy something you posted to your blog and put it into my blog, I potentially violate your exclusive rights to control copying, adaptation, display and performance of your "work."

This is a dire circumstance. Copyright lasts, fundamentally, forever. It applies, fundamentally, to everything. And this is all happening at the moment when the net is giving more people the chance to communicate to more people in more ways than we ever imagined (and certainly in more ways than Congress imagined when it wrote and revised 17USC, the American copyright law).

It would be nice if our lawmakers would go back to the drawing board and write a new copyright that made sense in the era of the Internet, but all efforts to "fix" copyright since the passage of the US Digital Millennium Copyright Act (DMCA) in 1998 have only made things worse, granting more unenforceable exclusive rights to an ever-increasing pool of "authors" who have no need or desire to sue the people with whom they are engaged in the business of "culture" — holding conversations, publicly re-imagining the stories that make up their lives.

Creative Commons aims to do what Congress won't or can't do — offer an approach to copyright that helps those of us who don't want deal that Disney and their pals have insisted on for every snatch of creativity. Creative Commons achieves this through a set of licenses, legal notices that set out permitted uses for creative works.

All Creative Commons share a set of basic terms. Every license requires "attribution" — subsequent users have to keep your name on your work, and let everyone know that you're the originator of it; and every CC license permits noncommercial sharing of your work — people can make as many copies they want and give them to whomever they want, provided they don't make any money from this activity.

In addition to these terms, you, as a creator, get to choose what freedoms you'll grant with the license to your work. When you visit http://creativecommons.org/license/, you're presented with a simple form that asks you to specify whether:

• Users may make commercial uses of your work — can they charge money or get paid for the things they do with your works?
• Users may "creative derivative works" — that is, can they modify, adapt, remix or otherwise tinker with your work? And, if so, whether:
• Users are required to share their creations on the same terms — that is, if I make a movie from your book, am I required to share my movie on the same terms as your book?

After you check off a few boxes on the Creative Commons license form, you'll get a page with the license for your work. This consists of a short block of computer code you paste into your book, image, web page, or what-have-you. This code displays a graphic badge showing the license you've chosen, with a link back to the license and a block of hidden "machine readable" text. This is text that search-engines can use to figure out which files are shared, and under which terms (you can limit searches on Flickr, Google, or Yahoo to only show Creative Commons licensed results).

Additionally, the machine-readable version links to two other versions of the licenses — a "human readable" plain-language version that can be understood by anyone, and a "lawyer-readable" version of small print that says the same thing in legally binding terms.

Creative Commons licenses are international — over 80 countries have their own CC projects — and something licensed under CC in the USA can be combined with Israeli, Indian, Brazilian, Spanish, British, South African and German CC works without violating the terms of any of their licenses.

This is a major accomplishment — volunteer legal scholars (Creative Commons is a charitable nonprofit) working at universities and firms all over the planet have pulled together the greatest legal hack every accomplished: a single, unified copyright system that crosses borders as easily as Internet packets.

The universality of CC means that literally hundreds of millions of people understand how they work — copyright is a fiendishly complex subject and it's a rare educator, reader, or writer (or publisher!) with a really exhaustive understanding of its minutiae. But the norms and terms of CC licenses are in practice in fields of endeavor as diverse as fiction, film-making, map-making, software documentation, engineering papers, needlepoint, food photography, and tour-book writing. Courts are slowly testing CC's terms (and finding them valid!), building up a global jurisprudence that you can take to the bank. All this is taking the lawyers out of the law, letting us engage in the Internet's natural, social, conversational modes without turning ourselves into accidental felons, and without hiring $400/hour white-shoe copyright attorneys to sit at our elbows and make sure our copying and pasting is within the bounds of the law.

There are two more things you need to know about CC licenses. First, they are global and irrevocable. Once you release a work under a CC license, you can't take it back, ever, and they apply equally to everyone. Remember, the purpose of a CC license is to encourage re-use: if I'm a translator in Spain who translates your story from English, I want to be sure that my version can stay online before I invest the effort — and so does the teacher in Venezuela who makes an educational course-pack based on the translation, the illustrator in Canada who creates a series of paintings to accompany it, and the voice-over actor in Dominica who produces an audio version for her blind friends.

Second, CC licenses don't overrule "fair use." Fair use is the US legal concept (other countries usually have "fair dealing," a closely related concept) setting out the conditions under which information users don't need a creator's permission to use her works. For example, critics and others can quote works, make personal copies, and so on, and if they are sued, they can defend themselves on the basis that what they did was "fair." Fair use is hard to navigate — you generally have to wait for a judge's decision before you know whether a use is fair or not — but it is still vital to free expression, creativity, scholarship and political discourse. You may choose a non-commercial CC license, but that doesn't mean that you can prevent a newspaper critic from quoting your novel in a harsh review because the newspaper is "commercial."

I've been applying CC licenses to my books since my first novel, Down and Out in the Magic Kingdom, which launched the same week that CC did. I've written extensively about why I do this (see my previous Locus columns at ), but I haven't written much about how the licenses work. Search engines like Yahoo can find over 160 million CC-licensed works in the wild, released by creators of every description. Until our lawmakers give us a copyright that works with the Internet instead of against it, this is our best hope for the future.

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Cory Doctorow's website is Craphound.com, and he is co-editor of Boing Boing: A Directory of Wonderful Things.

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Cory Doctorow is one of a dozen Locus columnists and reviewers. Every issue, we review over 50 books and magazines, most before they appear in print. A subscription will get you all those as well as the rest of the magazine -- news, People & Publishing, commentary, reports on events, and a list of all books and magazines published that month.

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Previous Cory Doctorow columns posted on Locus Online:

• Free(konomic) E-books
  
• The Progressive Apocalypse and Other Futurismic Delights
  
• In Praise of Fanfic
  
• You Do Like Reading Off a Computer
  
• Blogging Without the Blog
  
• The March of the Polygons: How High-Definition Is Bad News for SF Flicks
  
• How Copyright Broke
  
• Science Fiction is the Only Literature People Care Enough About to Steal on the Internet.

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