Introduction to Creative Commons Professor Brian Fitzgerald Australian
Introduction to Creative Commons Professor Brian Fitzgerald Australian Catholic University 15 June 2012
Copyright �General rule = You need permission/licence to “exercise exclusive economic rights of copyright owner” unless the law provides otherwise
Creative Commons is… �About copyright �A copyright licence �Cannot exist without copyright
Creative Commons is… �A new way of managing copyright �“Emblematic” of a freedom to share our own copyright (Why share? – leads to better outcomes/innovation? – other motives? )
Creative Commons is not… �Anti-copyright �A copyright abolitionist movement
Background �Based on the “free” software and open source software (FOSS) “copyright” licences like GNU GPL and BSD �Free as in speech not free as in beer �GNU GPL – Richard Stallman – licence use of and share source code = human readable - on the condition that if you use my code and distribute it – you must share modifications (improvements? ) with the recipient (community? ) – called Copyleft
How does CC work? �CC is a permission to use (reproduce, distribute and publicly perform) copyright material – literary, dramatic, musical, artistic works, films, sound recordings, broadcasts and published editions �On certain conditions
Key Terms �Mandatory - Attribution (BY) �Optional – Noncommercial (NC), No Derivatives (ND), Share Alike (SA) �ND and SA cannot be used together
Licences BY BY-NC BY-SA BY-ND BY-NC-SA BY-NC-ND
Licences
Baseline Terms �Attribution – Name of author and other Attribution parties, Copyright Notice, Title of the work and Licence URL, Identify changes made (where applicable) �No suggestion of endorsement �Keep notices that refer to Licence or Disclaimers
Baseline Terms �No terms limit permitted use of material and No TPM applied �Need Permission for Acts Beyond the Licence Given �Licence Specific Restrictions – NC, ND, SA �Fair dealing still exists �Moral rights still exist
�Wikipedia �Flickr �You. Tube
� 2010 Federal Budget Papers licensed under CC Attribution 2. 5 Australia � 2011 and 2012 Federal Budget Papers under CC Attribution 3. 0 Australia
Attribution
Attribution �“In a manner reasonable to the medium you are using” �Copyright Notice, Creator’s Name, Other Attribution Parties, Licence (URL/hyperlink), Source and Title of Work (URL/hyperlink)
Noncommercial
Noncommercial �Clause 1 Attribution-Noncommercial-Share Alike 3. 0 Australia – “Commercial” means primarily intended for or directed towards commercial advantage or private monetary compensation.
Noncommercial Study �CC has released guidelines and done a recent study on the meaning of this term. There are some clear cases of what is non commercial – private and domestic use – and some clear cases of commercial use – corporations using the material to gain revenue. �Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use, http: //wiki. creativecommons. org/Defining_Noncom mercial
Adam Curry v Audax (2006) �Photos from Flickr published in a magazine sold commercially – Netherlands �Court said no permission and no licence to use the photos - as this was commercial use
No Derivative Works
No Derivative Works �Clause 1 Attribution-No Derivative Works 3. 0 Australia – “Derivative Work" means material in any form that is created by editing, modifying or adapting the Work, a substantial part of the Work, or the Work and other pre-existing works.
No Derivative Works �Derivative Works may, for example, include a translation, adaptation, musical arrangement, dramatisation, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be transformed or adapted… �…except that a Collection will not be considered a Derivative Work for the purpose of this Licence.
Share Alike
Share Alike �Clause 4 B(a) Attribution-Share Alike 3. 0 Australia – You may only Distribute or publicly perform a Derivative Work if You apply one of the following licences to it: �i) this Licence; �ii) a later version of this Licence with the same Licence Elements (such as Attribution-Share. Alike 4. 0 Australia); or
Share Alike �iii) a Creative Commons Unported licence or a licence from another jurisdiction (either this or a later version) that has the same Licence Elements; or � iv) a Creative Commons Compatible Licence. (* note this last option is not available in CC BY NC SA 3. 0 Australia)
Legal Validity of Licences Jacobsen v. Katzer, 535 F. 3 d 1373 (Fed. Cir. 2008) “The District Court interpreted the Artistic License to permit a user to ‘‘modify the material in any way’’ and did not find that any of the ‘‘provided that’’ limitations in the Artistic License served to limit this grant. The District Court’s interpretation of the conditions of the Artistic License does not credit the explicit restrictions in the license that govern a downloader’s right to modify and distribute the copyrighted work. The copyright holder here expressly stated the terms upon which the right to modify and distribute the material depended and invited direct contact if a downloader wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the objectives of the open source licensing collaboration, including economic benefit. Moreover, the District Court did not address the other restrictions of the license, such as the requirement that all modification from the original be clearly shown with a new name and a separate page for any such modification that shows how it differs from the original. Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F. 2 d 14, 21 (2 d Cir. 1976), the ‘‘unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. ’’ Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. ”
Who uses CC? �Many different individuals e. g. Trent Reznor. . . �See search. creativecommons. org �Advanced functions in search engines (machine readable) �Institutional adopters - such as – Flickr (200 million photos) – Wikipedia – more recently You. Tube Education (MIT), research (PLOS), cultural (ABC), government (Australia, beyond)
How do people use CC? �Licensing out – distributing your work under a CC licence - eg Cory Doctorow science fiction book �Licensing in – use CC as a resource - eg use of CC licensing scream in Children of Men a Hollywood film; students in university using CC material in their projects
Children of Men �Freesound scream used in the movie �http: //www. freesound. org/people/thanvannispen/soun ds/9432/
Iron Man
ABC Pool �http: //pool. abc. net. au/
Key Criticisms �Vague nature of Non Commercial term �Licence lasts for the term of the copyright? Licensor may change mind? Take it down – with what effect? �Can it be revoked by licensor? In practice – even if possible – not allowable where there is an estoppel? �Is enough guidance given to users of the licence? Education and support services?
Permission for Copyright Only �Do other rights need to be cleared? �Issue over photos �See Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N. D. Tex. January 16, 2009)
Bio Professor Brian Fitzgerald BA (Griff) LLB (Hons) (QUT) BCL (Oxon. ) LLM (Harv. ) Ph. D (Griff) Brian Fitzgerald studied law at the Queensland University of Technology graduating as University Medallist in Law and holds postgraduate degrees in law from Oxford University and Harvard University. He is well known in the areas of Intellectual Property and Internet Law and has worked closely with Australian governments on facilitating access to public sector information. From 1998 -2002 he was Head of the School of Law and Justice at Southern Cross University in New South Wales, Australia and from January 2002 – January 2007 was appointed as Head of the School of Law at QUT in Brisbane, Australia. From 2007 -2102 he was a specialist Research Professor in Intellectual Property and Innovation at QUT and is a Chief Investigator with the ARC Centre of Excellence for Creative Industries and Innovation. Since March 2012 he has been the Executive Dean of Law at Australian Catholic University (ACU) http: //www. acu. edu. au/courses/law/deans_welcome/
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