1. Executive Summary
This report provides an analysis and exhaustive explanation of Copyright restrictions in order to encourage creators to choose Creative Commons licenses. The purpose is not only to give a clear understanding of why authors should chose Creative Commons licenses, but also to raise awareness of the harmful consequences of Copyright for the whole society or the public domain.
Methods of analysis include a literature review about the topic taking into account the defenders and the detractors of Copyright and intellectual property laws. It also includes qualitative analysis of data giving the opinion of experts, recording experiences and meanings. Talks and performances from TED conferences have been also consulted.
The report finds that Copyright mantains several materials out of the public domain because of corporate interests, instead of benefiting the whole society or promoting innovation and creation. In this global society, Copyright -and specially its extension- is an obstacle for the free flow of information and a democratic Internet. In addition, the report concludes Copyright has an uncertain future because it is not technically possible to control who is infringing copyright in the digital world.
It is recommended to register all the creative content under Creative Commons in order to:
- preserve the public domain while protecting certain authors rights
- have control over the content, instead of depending on Authors’ Rights Management Societies
- have more flexibility and independence
- chose under which conditions authors want to distribute their work
- guarantee that material will be available for free for educational purposes or research
- obtain a larger promotion on the Internet
1.1 Introduction/background to copyright laws
Filmmakers, writers, musicians, artists, scientist and, in short, anyone who wants to publish his/her creation has to deal with the most challenging legal issues to protect their rights. Another challenge is to know which content can be used freely and under which conditions. In addition, the way the marketplace is going has repercussions on effective communication because most of material is under copyright terms, ie, out of the public domain.
When talking about copyright laws, we have to take into account why copyright was created and in which context -sociocultural, political, technological and economic- in order to understand its evolution and why it is, currently, a controversial topic in the Information Society. Moreover, copyright involves not only intellectual property rights but also the citizen’s right to the access of information.
In addition, there are several actors playing different roles, such as the private sector and the stakeholders, the state and public service institutions, or grassroots collectives that are crucial to understanding the current policies. The impact of copyright laws and intellectual property has different consequences for each actor. While the industrial lobbies and private sector are claiming their economical rights, “netizens” are claiming that these laws are not only restricting the free sharing of information and knowledge but also restricting the developer’s creativity. This is because most original creation has been made using previous ideas of the others.
There is no doubt that this is a really complex topic which involves a broad set of actors, transnational policies processes and complicate legal concepts. As said in the beginning, the first step to understanding Intellectual Property law is analyzing its continued expansion over the past decades, it is categorizing more and more information into the private domain among the years, instate into the public one. Here is a brief introduction to the history of copyright.
1.2 History of Copyright
The privatization of ideas through Intellectual Property law was, in the beginning, a way to stimulate creation and invention. Allowing the authors to profit from their mind’s creation from a period of time was a way of encouraging people to produce creative work and generate new information. After a period, such creations entered into the public domain, so everybody could use and reuse again without restriction to produce more content. (Bernard, 2009, p. 160)
Despite the fact most nations have their own copyright laws, there are states that have influence enough to promote similar ways of copyrighting and monitoring someone breaking the law. The United States has high profits from the audiovisual industry and copyright, so they take care of protecting their industry from copyright infringement. (Cly Shirky, 2012)
The initial copyright law in United States protected the contents during 14 years, plus the option of renewing for 14 years more. The copyright term was extended by the Congress eight times between 1962 and 1976, having a strong impact on creators and developers because more works were kept out of the public domain for longer. Another important change after the 1976 was the fact that copyright became automatic: any creation was under copyright protection directly, without registration (Bernard, 2009, p. 161). One of the highlights of the expansion of the copyright protection was in 1998, with the Copyright Term Extension Act (CTEA), which protected the works for 70 years after the death of the author. The biggest supporter of the CTEA was the Walt Disney Company, who was earning large amounts of money with its corporate logo and the famous Mickey Mouse cartoon. Anecdotally and ironically, Mickey was drawn using public domain material whose copyright just expired one year ago. (Bernard, 2009, p. 162)
2. New approaches
2.1 New Policy Procedure related to Copyright infringement
Recently, the United States government have tried to implement two bills, one is called Stop Online Piracy Act (SOPA) and the other is called PIPA (Protect-PI), both provoking the most popular online Strike ever four months ago. Non-profit organizations such as Mozilla Foundation or Wikipedia, Google, and corporations such as Google, Yahoo, Facebook, Twitter, Amazon, etc blacked out their pages for 24 hours. Netizens over the world were complaining because they felt as if they were losing their rights. In addition, cyberactivism organized around the world as Anonymous, blocked institutional webs in order to make their voice heard. The protest culminated in a massive site blackout that stopped SOPA and PIPA for the moment. (Sopa Strike, 2012)
SOPA allows blocking websites that are infringing on copyright directly, without a legal procedure, without a trial, negating the presumption to innocence. The Government can order Internet service providers to close websites, including websites with infringing links posted by any users; they block websites removing them from the domain name system. And who supports SOPA? The U.S. Congress tried to implement the law with the support of more than three hundred major companies, with well-known persons behind it such as the owner of The Wall Street Journal and The Sun Rupert Murdoch or the former senator and current MPAA (Motion Picture Association) chairman Chris Dodd.
This model of censorship will not probably work because of technical issues. In order to protect the digital content, both legislative and technical steps have to be combined. (Stoke, 2009, p. 19) Bits are copyable and users can still find the content using, for example, Peer to Peer software. Netizens are sharing things with each other online such as music, videos, movies, etc. They can share three kinds of content: “some staff we share is the staff we made, some staff we share is the staff we found, some staff we share is the staff we made out of what we found, and all of it horrifies those industries”. (Shirky, 2012).
3. Current trends
3.1 Intellectual property limits access to cultural content
Currently, there are approximately 120 million videos online and 77 million videos on YouTube. Most of the content has been ripped from TV. Most of the new creations are made using copyrighted music, copyrighted images, trademark content, and, in short, material that belongs to somebody else. The new generation of authors do not ask permissions, they “have no sense that intellectual property laws exist”. (Bernard, 2009, p.189).
Digitization and, consequently, cyberspace have changed the role of the State as a “primary law-making” authority because they have no effective ways to control all the published material and the citizens behavior. Governments and corporations don’t know how to deal with the challenges of digital copyright because Internet makes easier to make copies, to modify or adapt the work of the others, etc.(Stokes, 2009, p.10).
Citizens are not passive consumers anymore, they also would like not only to consume but also to produce. The Internet users, called also Netizens, have a wider legal region that goes further than the national borders. Despite the fact states have tried to apply the territorial law to the network, there are not any technical effective ways to completely expand its control. Filtering and censoring web content it is not just a common solution of the authoritarian regimes to copyright infringements, it is also common of Western countries. These rules are also controversial because sometimes they are vague and open to different interpretations, which promotes that in some cases these filters are used as a tool for political censorship. Some cases can be found on Wikileaks, a website that publishes anonymous submissions and leaks of sensitive governmental and private documents, showing a large blacklists made by the states. The content targeted on this documents includes political reasons, as well as alternative media, for example. (Hintz and Milan, 2011, p. 231- 232).
In addition, current copyright laws have some contradictions themselves. For example, in the United States Constitution Article 1, Section 8, says that securing copyright must be for “limited Times” (Bernard, 2009, p.162) and the extension of copyright benefits private interests, instead of the public interest. In other words, interests of copyright has more weight than freedom of speech.
The privatization of ideas through intellectual property law include a wide list of categories: literary works, musical works, dramatic works, pantomimes and choreographic works, sound recording, architectural works, motion pictures and audiovisual works, etc. (Bernard, 2009, p. 164). These categories include computer programs to maps or architectural plans. In addition, another key factor to understanding the complexity of copyrighting is the fact that to distribute the content in each different platform a different license is required. Creators must take into account that licenses have a time limitation, a geographical area, etc. For example, if someone has the right to distribute copies on television, that it is not condition enough to do it through the Internet. Another reason that makes complicated the legal publication on the Internet is that one content can be in the public domain in one country, but not in another one. So, to be legally protected authors need to do a large process of documentation or, better, hire a lawyer (Bernard, 2009, p. 177). The process of clearing those rights is long and creators have to be really meticulous, being sure you they all the required permissions, otherwise they can be involve in financial and criminal penalties that can cost them many money.
The ways that grassroots organizations have to demand their rights has also changed. Becoming especially important are the “grassroots tech groups”, formalized networks of bloggers, alternative media infrastructures, experts groups and NGO and organized collective actions with a global impact organized by netizens or cyberactivist. Despite the fact it is a broader group they have common objectives: collective ownership, “non-profit social objectives”, free access to the information, knowledge and creative works, plus assistance to others in provide that cultural content. They are organized using democratic and participatory infrastructures (Hintz and Milan, 2011, p. 230). There is a growing number of creators that decide themselves to publish their work without restrictions or available for free for certain uses. (Bernard, 2009, p.197) Alternative forms of licensing are also available, and anyone that believes the Internet has to be a public space, “open, affordable and accessible to all” (APC, 2006) should chose Copyleft1 licenses.
4.1 Creative Commons and Free Software: an alternative solution to copyright
An effective solution to protecting both certain authors’ rights and the public space is Creative Commons licenses. Creative Commons (CC), apart of being an alternative solution to copyright restrictions, is a kind of license that let the authors has more control of their contents in comparison to copyright. CC was created in 2001 with the objective of providing licenses that benefit the public interest, giving more freedom to the creators and still protecting some moral rights as the right of attribution. (Bernard, 2009, p.198). Authors can choose if they want to allow the free use for commercial purposes or not, or if they want to allow people to make adaptations or derivative works with the content. According to its creators, CC provide certain rights while creating a common space for others who want to use their work:
Creative Commons defines the spectrum of possibilities between full copyright -all rights reserved- and the public domain -no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work- a ‘some rights reserved’ copyright. (Creative Commons, /about/)
There are six different kind of CC licenses, as shown in the following chat from the Creative Commons Website. The licenses are in order from more permissive to more restrictive. The right of attribution [BY] is the common element required in all six licenses. The second license adds another condition: [SA] any modified work must be registered under a similar license. The third one does not allow modifications from the original [ND]. The fourth doesn’t allow commercial uses from the works [NC]. The fifth requires two conditions: Non-Commercial and Share Alike. Finally, the sixth is the most restrictive because doesn’t allow commercial uses, neither derivatives.
There are different possible combinations, depending on the interests of each creator. It is not just a ethical question to chose a CC license. Despite the fact that choosing CC or Copyleft licenses sometimes is seen as a way of life, some authors chose these licenses for economic benefits. For example, an entrepreneur that has a website financed with advertisement, so the money he earns depends on the quantity of users that visit his site, maybe it is better for him to publish his/her contents under CC. The distribution of his work can arrive faster to many places, through many platforms, and you can obtain a larger promotion. Rick Prelinger, founder of the Prelinger archives and filmmaker, doubled his sales after putting most of his films under Creative commons with no restrictions on reuse the material. In seven years, users downloaded 20 million films and approximately 20,000 independent and creative work was made from original films. He discover that “it’s possible to give things away and also get paid at the same time”. (Bernard, 2009, 288).
Apart from the licenses authors should take into account the technology used to create work, for example the software. One one hand, users have two options if they do not like to pay all the licenses and intellectual property costs: to use illegal copies (known as piracy) or to use free software. On the other hand, authors who want to distribute broadly their work without copyright restrictions must be really careful to avoid legal conflicts, so the only safe option for them is to use CC and free software, mostly licensed under Copyleft licenses (known as General Public License) (Bernard, 2009, p.198). If creators do not remember to do any legal step to protect their work, it will be directly under copyright protection, so they will depend on companies that will manage their rights for them. There are several challenges and rewards for publishing under CC, not only for the authors but also for the whole society that will be able of improve the works of others, share content and promote the free flow of information, at least for non commercial purposes such as private use, education, non-profit projects, etc.
The universal access to the information and knowledge is in danger because of the current Intellectual Property Law and the new ways of censoring and blocking websites for Copyright infringement. Those laws benefit the private interest instead of the public one and are generating a public debate that involves a broad list of actors. The public debate turns around opposite concepts: access vs control, sharing vs. commercializing, and involves the public and the private sphere.
The Internet has grown immeasurably and netizens have more power than ever to organize themselves globally and reclaim their rights. Piracy is not the solution to obtain free content. There is also an alternative and constructive solution to copyright: Creative Commons licenses and free technology. As many authors chose a Copyleft license, much more content would be available to others to reused and make new mind creations. Both elements – CC licenses and free technology- provide independence and flexibility to authors, scientists, and artists who hesitate publish their works under a human perspective and for the public interest. In addition, to distribute the work using any platform is easier and creators has more control of their work, more autonomy. It also helps to preserve the public domain.
This paper has argued that Creative Commons and free technology is the best instrument to guarantee an open and democratic Internet, accessible to all, that promotes the free flow of information in this global society.
Association for Progressive Communications (APC) (2006), APC Internet Rights Charter:
Bernard, S. (2009), Archival storytelling: a filmmaker’s guide to finding, using, and licensing third-party visuals and music, Amsterdam; Boston: Focal Press.
Creative Commons (n.d.), What it is Creative Commons?
Hintz, Arne and Milan, Stefania (2011) The Handbook of global Media and Communication Policy, Blackwell Publishing
Sopa Strike (2012), Confirmed Participants