copyright

Does your sharing scale?

Mike Linksvayer, September 2nd, 2009

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.☺

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.

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.

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An Evaluation of Private Foundation Copyright Licensing Policies, Practices and Opportunities

Jane Park, August 28th, 2009

CC is pleased to announce that the Berkman Center for Internet & Society, in collaboration with the Hewlett Foundation, the Ford Foundation, and the Open Society Institute, has recently published a new study entitled, An Evaluation of Private Foundation Copyright Licensing Policies, Practices and Opportunities, by Philllip Malone. From the announcement,

“This project… undertook to examine the copyright licensing policies and practices of a group of private foundations. In particular, it looked at the extent to which charitable foundations are aware of and have begun to use open licenses such as Creative Commons or the GPL for the works they create and that they support with their funding. We surveyed foundation staff and leaders and examined a number of examples where foundations have begun to take advantage of new licensing models. Based on the survey results, foundation experiences and additional research, we identified a variety of significant benefits that the use of open licenses can bring to foundations and their charitable goals. In particular, open licenses permit knowledge and learning to be widely shared and more readily adapted, improved or built upon, and allow those later improvements to be readily distributed. The result can be dramatically faster and greater access to research, information, technologies and other resources in ways that directly benefit foundations’ core missions and the public good.

The study sought to develop an analytical framework and set of factors that foundations can use to begin considering when and where the use of open licenses would further their mission and day-to-day work and where such licenses might not be useful or appropriate. It provides a great starting point for informed consideration of open licenses and the new opportunities they create for foundations and related organizations.”

This report creates an amazing opportunity for foundations to propel themselves into the future via open licensing and open technologies. Please read and share far and wide, as the entire study is open via CC BY.

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OER Copyright Survey

Jane Park, August 17th, 2009

If you haven’t already, break up your Monday with the OER Copyright Survey. It only takes ten minutes, and it’s for a good cause—mainly to “gather information regarding the ways in which copyright law plays a role in, and perhaps acts as a barrier to, the practices of those who create or facilitate the production of Open Educational Resources (OER).”

From the survey page,

“Because most content remains “all-rights-reserved” under the traditional rules of copyright, it is often the case that the creators and producers of OER must confront questions as to when and if it is permissible to use content created by others when it is not offered under an open license. For example, an OER creator may want to incorporate a clip from a film into a lesson about film techniques, or an animated video illustrating a biological process into a lesson about that process. However, if the film clip or animation is protected by “all-rights-reserved” copyright, then the OER creator may be unsure how to proceed, or may wish to rely on some exception to copyright law that may apply under such circumstances.

It is our goal to develop a deeper awareness of the degree to which OER practitioners and users grapple with copyright law issues, and whether those issues pose barriers to the creation, dissemination, and reuse of OER. We hope that this initial survey will form the basis of a larger international study led by ccLearn.”

The survey closes on August 31, so fill it out soon!

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Copyright tools

Jane Park, July 29th, 2009

Last year, I blogged about the Copyright Advisory Network‘s nifty digital copyright slider, a tool that helps you tell whether a work is still copyrighted or whether it’s in the public domain.

Since then, the OITP at ALA (Office for Information Technology Policy of the American Library Association) has developed and published two new tools: the Fair Use Evaluator and the Exceptions for Instructors eTool. From the announcement,

“The Fair Use Evaluator is an online tool that can help users understand how to determine if the use of a protected work is a “fair use.” It helps users collect, organize, and document the information they may need to support a fair use claim, and provides a time-stamped PDF document for the users’ records.”

“The Exceptions for Instructors eTool guides users through the educational exceptions in U.S. copyright law, helping to explain and clarify rights and responsibilities for the performance and display of copyrighted content in traditional, distance and blended educational models.”

In addition to these two new tools, check out the existing Section 108 Spinner, which “help[s] you determine whether or not a particular reproduction is covered by [Section 108] exemption” that “allows libraries & archives, under certain circumstances, to make reproductions of copyrighted materials without the permission of the copyright holder.”

All three tools are licensed CC BY NC-SA.

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NY State Senate Goes CC

Fred Benenson, June 29th, 2009

If you’re reading the Creative Commons blog, chances are you’re aware of the fact that the United States federal government is not entitled to copyright protection for their works. If you didn’t know this, check out the Wikipedia article on the subject, or some of our past blog posts on the subject. This means that federal works are essentially in the public domain.

What you may not know is that works of American states, in contrast to works of the federal government, are actually entitled to copyright protection under U.S. law. This creates the very awkward consequence of states automatically holding copyright in the very state laws, rules and court decisions that bind their citizens, not to mention other types of content created by its employees who are paid from public coffers filled in part by their taxpayers. CC is not alone (check out legendary archivist Carl Malamud and his public.resource.org project for more info) in believing that all such works should belong to the public and reside in the public domain.

Needless to say, we think this is an enormous opportunity for proper application of our legal tools to free up state works.

This is why its exciting to see the New York State Senate adopt a Creative Commons License for the content on their website. The photos and text of NYSenate.gov are now available under a Creative Commons Attribution-NonCommercial-NoDerivatives license, and 3rd party content, such as comments and user submitted photos are available under our Attribution license. Furthermore, the Senate has used our CC+ protocol to allow all other uses (even commercial ones and non-attribution ones) of the content so long as it is not for political fund raising purposes. In other words, if you’re not doing political fund raising you’re allowed to do whatever you want with the content.

While this is a somewhat novel approach to using our licenses, and indeed grants citizens rights to works they don’t currently have, it is only the first step. In the future, CC would love to see more states pushing their work into the public domain (and their policies into synchronicity with those of the federal government), for example by using our public domain waiver, CC0.

If you know of a state using CC licenses, add it to our wiki page on government uses of CC, or just let us know.

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EFF Teaches Copyright, without an agenda

Jane Park, May 28th, 2009

When it comes to copyright, our youth are too often bombarded with extremes. The entertainment industry giants propagate a skewed perspective by launching anti-copying educational programs, leaving out much of the balanced information necessary to cultivating user’s awareness about her real rights to a resource. This results in students thinking that they can react in only one of two ways: by breaking the law in the face of overbearing restrictions, or by doing absolutely nothing at all with copyrighted works, effectively stifling the learning that comes of creatively engaging with them.

The Electronic Frontier Foundation recognized this problem and went to work on a copyright curriculum that would not only be fair and balanced in perspective, but comprehensive in its scope by encouraging discussion and self-education. From the press release,

“Kids are bombarded with messages that using new technology is illegal… Instead of approaching the issues from a position of fear, Teaching Copyright encourages inquiry and greater understanding. This is a balanced curriculum, asking students to think about their role in the online world and to make informed choices about their behavior.”

ccLearn has taken a look at Teaching Copyright and we commend it. The curriculum is created and vetted by lawyers and promotes a balanced teaching perspective, clearing up much of the misinformation that is current industry propaganda. Like EFF Staff Attorney Corynne McSherry says, “Today’s tech-savvy teens will grow into the artists and innovators of tomorrow.” We need to help them “understand their digital rights and responsibilities in order to create, critique, and comment on their culture. This curriculum fills an educational void, introducing critical questions of digital citizenship into the classroom without misinformation that scares kids from expressing themselves in the modern world.”

The entire curriculum and accompanying resources on the Teaching Copyright website are licensed CC BY, which appropriately encourages students, teachers, and anyone else to adapt it to various educational needs and contexts.

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Teaching About Copyright and Fair Use for Media Literacy Education

Jane Park, May 26th, 2009

Last November, the Center for Social Media at AU released a Code of Best Practices in Fair Use for Media Literacy Education, which followed on the heels of a Code of Best Practices in Fair Use for Online Video. These guides were aimed at clearing up many of the urban myths surrounding copyright, especially when it came to classroom use of copyrighted materials.

Now, the Media Education Lab at Temple University has produced excellent resources based on the original guide to help teachers teach about copyright and fair use in their classrooms. Resources include lesson plans, Powerpoint slides, videos, case studies, podcasts, and FAQs. The lesson plans iterate on topics from the code such as “Understanding Copyright”, “The Cost of Copyright Confusion”, and “Defining and Applying Fair Use”.

What tickles me: that in order to find out just what you can do with these resources, you get to view and use them first—Learning fair use via fair using! To use these resources in your classroom or study group (or for simply personal edification), check them all out here.

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Australia Publishes CC Info Pack

Jane Park, April 13th, 2009

Through its Copyright Advisory Group, the Australian Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) has published a Creative Commons information pack online, a bundle of eight documents that distills the basics of CC licensing and the philosophy behind it. This pack is a great resource for educators and students, and we encourage you to use it in your schools by adapting it however you like.

The info pack includes concise and concrete answers to simple questions, like:

What is Creative Commons?
How to Find Creative Commons Licensed Material
How to Attribute Creative Commons Licensed Material

and more. Find all documents at their Smartcopying website, “The Official Guide to Copyright Issues for Australian Schools and TAFE.” All of them are licensed CC BY, the most effective and open license for open educational resources.

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Copyright Exceptions and Limitations in OER

Jane Park, March 19th, 2009

For those of you interested in knowing how Copyright Exceptions and Limitations (known as Fair Use in the US) might affect open educational resources, there will be a working session on CEL at OCWC Global 2009 in Monterrey, Mexico next month. OCWC Global 2009 is the OpenCourseWare Consortium’s first international conference of its kind. The session on International Copyright Exceptions and Limitations may include current US work exploring issues of Fair Use in OER, but is, naturally, a much larger conversation encompassing many different legal jurisdictions. From the CEL wiki,

The realm of copyright exceptions and limitations is vast and complex. Every legal jurisdiction has its own formulation of what behaviors are exempt from copyright restrictions, and we have only begun to explore the question of how open licensing affects those formulations.

Since we have yet to sort out which aspects of the CEL landscape ccLearn can reasonably investigate, and which partners are interested in being collaborators, we hope this working session will result in some great initial inquires into this international issue. To join a discussion of some of these topics, contribute to the wiki! You can also find out more at the OCW Blog.

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Code of Best Practices in Fair Use for Media Literacy Education

Jane Park, November 11th, 2008

Today, the Center for Social Media at AU released a Code of Best Practices in Fair Use for Media Literacy in Education—a guide for educators and students to the use of copyrighted materials in the classroom. This guide is aimed at clearing up many of the urban myths surrounding copyright, as many educators mistakenly believe that the use of copyrighted photographs in the classroom is illegal, when in fact, fair use allows such uses without teachers even having to obtain permissions.

From last week’s press release

“A variety of content and media is now available online, but fear and misinformation have kept teachers and students from using this valuable material, including portions of films, TV coverage, photos, songs, articles, and audio, in the classroom.

Now, thanks to a coordinated effort by the media literacy community, supported by experts at American University and Temple University, teachers and students have a step-by-step guide that simplifies the legalities of using copyrighted materials in an academic setting…

The Code of Best Practices in Fair Use for Media Literacy Education outlines five principles, each with limitations:

Educators can, under some circumstances:

      1. Make copies of newspaper articles, TV shows, and other copyrighted works, and use them and keep them for educational use.

      2. Create curriculum materials and scholarship with copyrighted materials embedded.

      3. Share, sell and distribute curriculum materials with copyrighted materials embedded.

Learners can, under some circumstances:

      4. Use copyrighted works in creating new material

      5. Distribute their works digitally if they meet the transformativeness standard.”

A great video accompanies the guide, if you want a quick and entertaining primer on the issues the code addresses.

This project was funded by one of our own long-term supporters, the John D. and Catherine T. MacArthur Foundation.

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