This is a most welcome aspiration. A strong push for copyright reform is currently occurring around the world through domestic reviews and in international fora like WIPO — coming both from those wanting increased recognition of user rights and those calling for tighter author controls. With the United States one of the leading nations advocating for stronger copyright protection through treaties such as ACTA and the TPP, the international community will be closely observing any movement in U.S. domestic law.

Seal of the United States Copyright Office / Public Domain

In addition to several meaningful reform ideas — including shortening the copyright term itself, alterations to the Digital Millennium Copyright Act, and making revisions to exceptions and limitations for libraries and archives — we’re happy to see that the Register is highlighting the crucial need to expand and protect the public domain. Some of the most compelling work undertaken by Creative Commons and others in the open community has to do with increasing the accessibility and value of the public domain. We hope a more positive public domain agenda can become ingrained into the foundations of U.S. copyright policy. The central question: Can the United States devise a better system for both authors and the public interest in an environment where technology and social norms are increasingly disconnected from an aging copyright law?

Pallante said, “[A]uthors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.” However, there is no doubt that public copyright licenses are offering a substantial and effective counter to some of these pains — even noted by Ms. Pallante in her longer lecture at Columbia University titled The Next Great Copyright Act (337 KB PDF), “[S]ome [authors] embrace the philosophy and methodology of Creative Commons, where authors may provide advance permission to users or even divest themselves of rights.” CC licenses and public domain instruments are right now helping alleviate frustration with copyright for all — individuals, businesses, institutions, governments — who opt in to using public licenses and licensed works.

Indeed, public licenses are easy-to-use tools for communities that wish to share their creativity on more flexible terms. And when millions of motivated creators share under public copyright licenses like CC, they create great and lasting things (hello Wikipedia). Public copyright licenses shine brightly in the light of Pallante’s telling reflection: “If one needs an army of lawyers to understand the precepts of the law, then it is time for a new law.”

At the same time, the existence of open copyright licenses shouldn’t be interpreted as a substitute for robust copyright reform. Quite the contrary. The decrease in transaction costs, increase in collaboration, and massive growth of the commons of legally reusable content spurred on by existence of public licenses should drastically reinforce the need for fundamental change, and not serve as a bandage for a broken copyright system. If anything, the increase in adoption of public licenses is a bellwether for legislative reform — a signal pointing toward a larger problem in need of a durable solution.

We and the rest of the international community are looking forward to seeing what Pallante and Congress have in mind when they continue the discussion after today. In her oral testimony, Ms. Pallante said, “Copyright is about the public interest.” We hope that the public interest has a seat at the table, with room both for open content licensing and positive legislative reform. The existence of CC licenses does not limit the need for reform. Open licenses help forward-thinking people and institutions to live and thrive in the digital age now, and illuminate the roadmap for beneficial reform to come. Let us begin.

Techdirt’s Mike Masnick is perhaps the most prolific blogger on the ill impact of overly restrictive legal regimes, including of course copyright and patents, but also trademark and even employment law (see Noncompete Agreements Are The DRM Of Human Capital) and often on people delivering real value to customers (sad that these are considered “alternative” business models) instead of replying on protectionist legal measures — as blogged here, Masnick’s case study on NIN is an absolute must read/watch — and he hosts awesome guest authors.

So it’s a little disappointing to read Masnick write:

I don’t use any of their licenses, because I don’t necessarily see the point. We’ve declared in the past that the content here is free for anyone to do what they want with it, and thus I feel no need for a Creative Commons license.

The need arises from the reality that sharing without standardized legal tools doesn’t scale. It doesn’t scale socially — if I wasn’t a regular Techdirt reader I wouldn’t know that Masnick had declared Techdirt content is free for anyone and for any purpose (and even now I could only find one such declaration because I remembered that Masnick had written about it in a post that mentioned CC!), nor depending on wording would I know what that meant. It doesn’t scale technically — there’s no way for software such as search engines to recognize ad hoc declarations. It doesn’t scale legally — any community or institution that requires legal certainty (eg due to risk that the community’s work will be suppressed or that the institution will be financially liable) will avoid ad hoc declarations.

It’s no surprise that in the more developed field of free and open source software (which has a 10+ year head start on free culture/open content) anyone who claims that making an ad hoc declaration is good enough and did not release their code under an established license would be laughed at and their code not allowed in other projects, distributions, and repositories, not to mention getting no attention from IBM, Google, Red Hat and thousands of other corporate contributors to and adopters of open source software.

Communities and institutions outside software also require works under established licenses (ie those provided by CC) to scale, e.g., Wikipedia, OpenCourseWare, the Public Library of Science and many, many others. What about individuals and small group efforts? Of course they don’t have to use real legal tools for their content any more than an individual programmer has to share code under an established open source license — that is if they don’t actually want others to “do what they want” with their content or code — because no license means no-understand, no-find, and no-go.

One of Masnick’s best turns is his stylized formula Connect With Fans (CwF) + Reason To Buy (RtB) = The Business Model ($$$$). As he explains, each part of the formula has many facets — reasonable copyright terms are just one — and as he points out, in a sense copyright is irrelevant, as CwF+RtB would work in the complete absence of copyright. However, as Techdirt points out every day, copyright is in more than full effect, producing all kinds of anti-creative and anti-innovation effects, from labels suing fans, bloggers, startups and anyone else available to heirs suppressing the use of work by long-dead authors. In this environment it seems rather necessary to offer fans the legal certainty of an established public license that grants at least the right to non-commercially share. Anything less seems to betray a lack of respect for fans or, if done unknowingly, is an instance of failed sharing.

Of course one might want to go beyond offering a relatively restrictive license and not rely on copyright at all, giving fans complete freedom with respect to one’s works. As Masnick has noted, CC has developed a legally rigorous tool to do just that, worldwide — CC0 — we hope that he is still considering it.☺

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The Techdirt post quoted above is primarily a solid response to another blogger’s post on whether CC is good or bad for copyright policy — a very worthy question. Masnick’s conclusion is good:

Many of the people behind it went through (and are still going through) numerous battles to push back on the excesses of copyright. Creative Commons wasn’t the solution — it was a helpful (and hopefully temporary) oasis in a bleak desert, following numerous well-reasoned, but ultimately futile attempts to push back corporate expansion of copyright. And while I agree that there are problems with shifting the issue to a contractual agreement (and the post highlights some of the many legal problems CC licenses may cause), I think that CC, as a whole, did turn a lot more people onto the some of the problems with copyright law as it stands today. In many ways, CC is an easy way for people to first start to understand the problems of copyright law, in understanding why CC is needed.

From there, many who do understand this have started questioning the larger issues around copyright — and many of those involved with CC have continued to fight that good fight, rather than just assuming that CC is “the answer.” So, in the end, I agree that we should be clear to recognize that Creative Commons and efforts to really rethink copyright are two separate things, but that doesn’t mean that Creative Commons is necessarily bad for copyright policy issues. It has been, and hopefully will continue to be, a real stepping stone to getting more people to recognize these bigger issues. In fact, I’d argue that many of the folks now leading the debate for more reasoned copyright policy in Canada first came to understand these issues via their exposure to Creative Commons’ licenses.

While CC and other voluntary efforts (such as free software and open access) aren’t the solution (if there is such a thing), their contribution goes well beyond serving as stepping stones for thinking about how messed up the copyright environment is. They are simultaneously tools for enabling billions of dollars of collaboration across organization boundaries and unlocking untold social value now and in proving out models that don’t rely on excessive enforcement, changing the facts on the ground in a systemic way that arguably should increase the probability of good outcomes relative to those likely to result from a single-track strategy of merely complaining about the current regime as it worsens.

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Copycense, the blogger that Techdirt responds to above, has unrealistic assessments of CC’s ability to “muzzle” the conversation about copyright reform and of the ability of such a conversation to obtain the “best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well”. Copycense is enamored with the current Canadian copyright consultation — it’s worth noting that CC Canada has been around since 2004, that Michael Geist, the most prominent voice for positive reform, is a long time CC user and advocate — one can hardly say CC has muzzled the conversation — and furthermore it isn’t clear the consultation will lead to any good progress. Hopefully good reform will result, and many involved in CC in Canada and elsewhere are also involved in reform efforts (if you read French see the consultation of Olivier Charbonneau, one of the project leads of CC Canada) — but to denigrate voluntary efforts, at least while some rather intractable problems with the ability of concentrated interests to hijack politics remain, is a gigantic missed opportunity at best, and possibly flirting with very bad outcomes.