Ethics and Law in New Media/Creative Commons and Free Content Models

The birth of free content licenses

In earlier years, most of the content spread by the Net was (free and open-source) software. With Internet mainstreaming at the end of the 20th century, new network-based activities like telework and e-learning emerged and more and more non-software network content came into existence.

Freely usable materials were not new for Internet though. Since 1969, main technical questions concerning Internet internals were discussed in a special class of documents called Request For Comments (RFC). Project Gutenberg, a major online source of classical literature, started in 1971 and is active until today. Also there were growing quantities of fan fiction and other content. By the turn of the century, the network content has grown to the point where clearer legal status was started to be necessary.

In principle, the GNU GPL can also be used to license objects other than software, but the main problem is how to interpret the requirement to open the source code. In literature, we can think about the original manuscript as a form of source code (or in case a music, the original script of musical notation), but in case of a movie or a multimedia solution this is hazy at best.

In 1999, the Free Software Foundation introduced the Free Documentation License mostly meant for technical documentation and other writings, the idea was to carry the ideas that had already proved themselves successful in GPL over to other kinds of creative works. It found both support (the largest user of the FDL until recently was probably Wikipedia) and criticism - the main issues raised were overtly ideological tone and ban of technical restrictions - well before the current controversy around the GPL v3 which prohibits the use of DRM and similar techniques, the FDL already prescribed these countermeasures. While the DRM is highly questionable by itself, more serious shortcomings found in the FDL were the "lawyer language" used, and also just the sheer volume of license text.

Another similar initiative was the Open Content Project launched by David Wiley in 1999. Its Open Publication License found limited use and did not achieve ubiquity (today, the creators of OPL recommend using either the FDL or CC licenses).

One more notable attempt was made by a group of French artists inspired by the GNU GPL - they tried to make something similar for works of art, creating the Free Art License. It has been used in limited scale until today. Just like the FDL, it will raise the question of "open source code" requirement - how to define the "source" in a painting, a sculpture or a piece of architecture?

Lawrence Lessig and Creative Commons

In 2001, American professor, lawyer and thinker Lawrence Lessig proposed a new initiative called Creative Commons. Initially created as a tool for a legal case involving copyright, the organisation quickly caught wind and in December 2002, the first set of licenses was completed.

CC can be seen as a "middle-of-the-road" between the traditional inflexible copyright and Stallman's radical "intellectual property is unethical" view - the copyright uses the formula "Copyright: All rights reserved", Stallman in turn expressed his contempt towards the former by a hackerly pun "Copyleft: All rights reversed"; Lessig's CC uses the phrase "some rights reserved" and tries to fit into the existing model of intellectual property, while introduced most of Stallman's ideas.

At first, the FSF's attitude towards the CC was favourable, but soon differences surfaced - mostly due to the CC being too soft and "non-free" for Stallman. Another problem is the legal contradictions which interferes in possible "license mixing" scenarios (it is still possible to use dual licensing). Despite that, Lessig remained in the Board of Directors of the FSF and was also awarded the FSF 2002 award for promoting free software.

A main novelty in CC was the "human language" used. For that time, the legal language used in mainstream licenses had gradually developed into something so specific that a non-lawyer was often unable to fully understand the license. This fact has been considered a major reason to promote illegal use of software - the illegible licenses have alienated a great share of consumers who then just choose to ignore them.

Meanwhile, choosing the CC license is done via the official website http://www.creativecommons.org (localised versions are usually in their respective countries) with only a couple of simple steps that are understandable for most users (see the choices below). When the choices have been made, three documents will be generated:

Commons Deed - the "human language" document which uses special signs and simple language to describe the main terms of the chosen license
full text - the "lawyer language", legally binding full version of the license
standard RDF/XML metadata that can be added to the online materials and makes searching easier.

The main choices are as follows:

Allow commercial uses of your work? (Yes; No)
Allow modifications of your work? (Yes; Yes, as long as others share alike; No)
Jurisdiction of your license (localised or unported)
Tell us the format of your work (Audio; Video; Image; Text; Interactive; Other)

Additional information and explanations are also available.

Main CC licenses

As said above, CC licenses are chosen by picking the desired conditions. All CC licenses share a common attribute in authorship (Attribution or BY) - just like free software and GPL, CC grows out from respecting the authors' rights (more in the Continental European sense). The author has full control in CC, thus it is possible to negotiate on changing the license with the author (e.g. the author may permit commercial use as an exception, even if the object is licensed as noncommercial only). After the BY clause, the next steps may differ as follows.

CC Attribution (CC BY)

The most liberal of the CC licenses, stating only authorship. Both commercial use and modifications are permitted. As it is, it's more liberal than the GNU GPL and FDL, due to not requiring modifications under the same license (being somewhat similar to the BSD license in software).

CC Attribution-ShareAlike (CC BY-SA)

Also permits commercial use and modifications but the latter must be under the same license (similar to GPL and FDL, but is still not compatible with them).

CC Attribution-NoDerivs (CC BY-ND)

Allows commercial use, but not modifications. Might be suitable for a writer who has created an intricate fantasy world and would not like others to write sequels (J.R.R. Tolkien could have used it, had he lived in our days).

CC Attribution-NonCommercial (CC BY-NC)

Allows modifications but the original object can only be used noncommercially. The NonCommercial clause will extend to the modifications too (although they will not have to use exactly the same license).

CC Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)

Likely the most popular CC license - allows noncommercial use and modifications, provided that the license will extend to modifications. This license is often used parallelly with traditional copyright - business use is under copyright, non-profit use (schools, NGOs, nurseries...) is much more free. The key to its popularity is likely in the chance to maximise the spread in the non-market sector (which often works as a perfect advertisement) while retaining full control over commercial use.

CC Attribution-NonCommercial-NoDerivs (CC BY-NC-ND)

The strictest CC license, forbids both commercial use and modifications, but is still much more free than traditional full copyright.

In addition, the newer Sampling category should be mentioned - it regulates partial use of the objects (e.g. movie clips, book excerpts). Has the following choices:

Sampling - partial usage is allowed in all purposes but advertisement, while the entire object will remain under full copyright. The license is discontinued for now!
Sampling Plus - the former plus allows the noncommercial use of the entire object (like BY-NC-SA)
NonCommercial Sampling Plus - both partial and full use is only allowed noncommercially (in essence the BY-NC-SA complemented with a sampling clause).

Plus, CC has included three more popular licensing categories:

public domain
GNU GPL
GNU LGPL

The CC variants of the GNU licenses use the original license as the full ("lawyer language") text, adding the "human language" Commons Deed and machine readable metadata.

A more sensible copyright

Especially in the US, monetary rights on creative works will be obtained by large and powerful organisations (publishers, music industry etc) which are able to influence the legal space towards favourable solutions. Thus the originally 14-year copyright has been gradually extended to 70 years after the author's death (in some cases can be even longer).

CC has addressed the problem with the Founders' Copyright - essentially, restoration of the 14+14 year copyright which was established at the birth of the USA. Legally it is achieved by the author selling his/her rights to CC for 1 US dollar, after which the CC will give him/her exclusive rights on the object for 14+14 years. While making sense in the US, this license is difficult to introduce in countries with Continental model of copyright.

Problems with CC

Aside from the angry whine of different media industries like "what do we earn when everything is free?", there are a couple of unclear issues.

First, the compatibility of the free licenses. While we saw that CC BY-SA is similar to the GPL, FSF will still say that they are incompatible. It is indeed so with the stricter CC ones, but in the case of BY and BY-SA the differences are only in details not needed for ordinary users. But still, thinking "what's the problem, they are all free licenses" is incorrect - e.g. until recently, one was unable to take Wikipedia materials and spread them under CC BY-SA.

Possible choices are

dual licensing
using the author's overrule to change from BY-SA to FDL (NB! the opposite is not possible)

Note: On November 3, 2008 the FSF issued a new version 1.3 of its Free Documentation License, allowing re-licensing of FDL-ed material under CC BY-SA for a limited period and under specific conditions. The step was mostly taken to allow moving Wikipedia to CC BY-SA, as majority of free content is currently using this license. Consequently, Wikipedia moved to CC BY-SA in June 2009.

The second circle of problems is about localisation. CC is created with the US jurisdiction in mind and getting it in line with Continental European practices may sometimes be troublesome. Yet a number of European countries have already localised the CC. Estonian localisation was officially announced at the end of 2010, but it was found to contain some errors - the final version appeared in early 2011.

References

Food for Thought

How are CC licenses implemented in your country?
Do you consider the FDL 1.3 a good solution for the incompatibility problem?