Katherine Maher on a generosity of spirit and contributing to the Commons
The Wikimedia and Creative Commons communities are inextricably linked, sharing networks, content, and a vision of the world’s knowledge collaboratively governed in a Global Commons built on gratitude and sharing.
Katherine Maher has been the Executive Director of the Wikimedia Foundation since 2016, and is one of the leading advocates for Open around the world. As a leader, her centering of community voice and the Wikimedia global network, as well as a strategic vision built around Wikimedia 2030 has led to some of the organization’s most creative growth and evolution.
Katherine will be speaking on Friday, April 13 at 11AM at the CC Global Summit and will follow up her talk with a panel on “The Big Open,” exploring how networks for Open can work together collaboratively and effectively.
The Wikimedia 2030 strategic document proposes that Wikimedia become the essential infrastructure for free knowledge. What does this strategic statement mean to the Wikimedia organization and what does it mean to the movement?
Wikimedia is one of the largest and most widely used free knowledge resources in the world. More than a billion devices visit our sites every month and we have been supported by millions of people over the years. In some ways, to the extent that an open source project is successful and has a daily tangible and visible impact on people’s’ lives, Wikimedia is the definition of that success.
What we’ve also seen… is that Wikipedia is the essential infrastructure for free knowledge in many places in the world. We have stepped into that role in different language communities where free knowledge may not have as robust an ecosystem.
Both Creative Commons and Wikimedia provide valuable infrastructure for the open web. As institutions working towards complementary goals, how do you see this these organizations as part of a larger global community of open knowledge?
Like in open source, CC and Wikimedia are part of the core infrastructure – but we play different roles on the stack. More than 50% of the content across the internet relies on open source and Wikimedia is the largest website or open media property on the planet. That means that we have been successful in achieving our open goal. The Creative Commons licenses power billions of freely licensed content that is accessible to the whole world. We’ve reached a point in which our model has demonstrated its success. Now the question is, “Where do we go from there?”
As communities and projects that started based on the premise that individual contributors and individual people all over the world create and build open culture and the Commons, we now see that other institutions and players are getting involved.
As successful projects, how do we go forward from here? What’s the course that we chart?
Practically, how do you see the networks working together and sharing resources?
As Ryan [Merkley, Creative Commons CEO] likes to say, “Many Creative Commoners are Wikimedians, Mozillians, Open Street Mappers…” If you are part of an open community, the distinction between those communities is artificial.
There’s already collaboration and mutual support across these communities. What are the fights that we want to fight together and how are we more effective when we [collaborate]? How can we bring in more institutions that historically haven’t been part of our ecosystem, and how can we scale up at this size?
Those are great conversations for us to have as partners, and to learn from our successes and our failures as well, as we try to take these missions forward.
What does a vibrant, usable Commons powered by collaboration and gratitude mean to you? What do you think sharing will look like online in the future?
A vibrant Commons is something that everybody has access to and people can give back to in a meaningful way. The work of creating a Commons doesn’t just happen –there’s labor involved… When we think about the importance of supporting and ensuring that the Commons is a part of the world in which we live, that speaks to the issue of generosity.
Those people who contribute to the Commons are actually a very tiny fraction of the overall whole. Some folks contribute directly, because they contribute their work, their creations, their ideas, and others contribute financially.
But again, it’s a small group – although it is a very generous group. If we were to imagine a future in which [the Commons] is a vibrant and robust ecosystem that continues to grow and thrive, then generosity needs to be something that’s reflected by a much larger group of individuals than it is today.
And we need to be generous in return.
We need to be generous in the spirit in which we approach these conversations, in the way that we welcome people into our communities, in the way that we think about the folks who use the content that we create. Generosity flows both ways.
How do you complement the work that Wikimedia provides as a tool or a product on the open web with the community building work you’ve done as an organization?
They’re deeply interrelated. I often talk about how what makes us different is the fact that we are a community project, but what makes us powerful is the fact that we are a website that’s used by hundreds of millions of people all over the planet. I don’t think you get to have one without the other. Wikimedia would not exist without the incredible community that has built it, that supports it, that has defined its values, and that ensures we stay true to those values.
We support the websites because they are how we achieve our mission, but that support has to be in service of the people that we are trying to serve, like our community members and the people who read, use, and learn from the knowledge we support.
How is Wikimedia working toward a better web as an organization and a community? How are you working toward a better world?
To a better web – we are one of the larger open source projects that exists today and every single thing that Wikimedia produces is open source. We believe that a web that is open, interoperable, and rewriteable is the right sort of web.
We stand apart from any other platforms in that we are largely trusted, we are community governed, we present a model for what we can and should be, and we hearken back to the ideals of the early web [of sharing].
In terms of working for a better world? What animates all Wikimedians is the belief that when more people have access to knowledge the world is, in fact, a better place. People are more informed and have access to critical information that shapes the way they make decisions in their lives. They have the opportunity to educate themselves in their communities.
While we don’t necessarily say in our vision statement that “we’re out here to change the world,” that is exactly what most Wikimedians believe we’re doing every day.
“This is all about Sharing“
“This is all about sharing”
By Sebastiaan Ter Burg, CC BY-SA
Aris Maro on the power of networking, librarians, and sharing African knowledge with the world
Aristarik Hubert Maro is the CC Tanzania Public Lead, an executive secretary at the Tanzania Library Association, and a PhD candidate at University Dar es Salaam. In advance of the Creative Commons Global Summit, we’re gathering the stories of humans working around the world to shape the Commons’ future. We want to share your story, too – drop by the “Humans of the Commons” listening lounge at the Summit to get interviewed and add your voice. Here’s an edited transcript of Aris’ story:
I was part of the team that founded Creative Commons in Tanzania. Since that time, we’ve created a large network and come to know so many people. To me, that’s the greatest strength of my involvement with CC; I’ve gotten to connect not only with people from Tanzania, but also people from around the world.
I now have friends in places like South Africa, Kenya, Nigeria – and colleagues in South Korea and Canada, where I attended previous summits. If it weren’t for Creative Commons, I wouldn’t have met these people. The success is the power of networking.
Creative Commons has become a big part of my life, especially when I’m talking about issues of shared data and licenses. That’s why I’ve decided to focus my PhD research on Creative Commons licenses. And why it’s a big honor for me to be able to represent Tanzania at the Creative Commons Summit in Toronto.
Librarians as “masters of learning”
When I first started organizing trainings and events about Creative Commons, people wondered: “Why is this librarian talking about sharing and licenses and the like?” Most people used to think that librarianship was just about books, books, books. But today, Creative Commons has helped people perceive librarianship as part and parcel of technology.
Creative Commons has helped me change people’s perceptions about librarianship in the country.
You can’t separate librarianship today – or library teaching or information science – from technology. People are coming to realize that libraries are where this knowledge is stored, and that if you want to access knowledge on just about anything, whether through old technologies or new, the library can provide that.
This is all about sharing. Librarians are becoming more like “masters of learning.” And if you empower librarians with high-tech skills, it’s a completely different story. This is the direction we are going. My work with CC has helped bring us to that level.
Sharing local knowledge and skills globally
One of the biggest challenges we face in Tanzania is knowledge around how best to utilize technology – especially when technology is moving and changing so fast. Each night when you go to sleep, you wake up to find that everything you knew has changed completely. This has been the biggest challenge in my work: getting people access to the knowledge and know-how they need when the pace of change is so fast.
You cannot talk about a better world today without talking about technology, and about the sharing of technology.
One of the greatest challenges to the Commons that I see is understanding of the licenses by the majority of the African continent. If we are able to reach out to all of the creators – the artists, the musicians, the writers – in the grassroots, in different places, in the rural areas, that will be a great opportunity for Creative Commons.
I want to ensure we aren’t leaving out the potential creators and creative people in the grassroots. There are so many new platforms where we can share their viewpoints and demonstrate their skills and knowledge. Creative Commons has a big part to play to make sure that all of the achievement of these people, their creativity and skills, can be shared globally. We need to reach out to ensure African knowledge and skills are shared globally.
Derecho de autor en el tratado de libre comercio Mercosur-Unión Europea: pocas mejoras y muchos retrocesos
Publicado originalmente en inglés el 6 de abril de 2018. Traducción: Equipo de CC Uruguay.
Un borrador recientemente filtrado del tratado de libre comercio Mercosur-Unión Europea muestra pequeñas mejoras en el capítulo sobre propiedad intelectual. Parece que la extensión innecesaria e injustificada de 20 años de duración del derecho de autor ahora se elimina del acuerdo, y las partes han introducido cierta flexibilidad para que los usuarios eviten las medidas tecnológicas de protección con el fin de ejercer sus derechos. Pero en su mayor parte, las negociaciones continúan favoreciendo un mayor endurecimiento de los derechos de autor a expensas de las protecciones para los derechos de los usuarios y los bienes comunes. Como explicamos a continuación, las medidas para proteger el dominio público continúan diluidas, la disposición que requiere una compensación obligatoria -independientemente de que los creadores la quieran o no- se mantiene y la sección de excepciones y limitaciones al derecho de autor se reduce a un mínimo.
El año pasado, en colaboración con varios capítulos de nuestra red global, Creative Commons publicó un análisis que abarca diversos temas relacionados con el derecho de autor presentados en un borrador del capítulo de propiedad intelectual del tratado de libre comercio Mercosur-UE.
La Unión Europea (UE) y el Mercosur han estado negociando este tratado de libre comercio (TLC) desde el año 2000. El tratado es expansivo y se ocupa de aspectos tan dispares como el comercio de bienes industriales y agrícolas, cambios potenciales a las reglas que rigen a las pequeñas y medianas empresas, compras gubernamentales y disposiciones de propiedad intelectual, incluyendo los derechos de autor y las patentes. En nuestro análisis del año pasado, examinamos cuestiones que afectarían el dominio público, la creatividad y el intercambio de conocimiento, así como los derechos de los usuarios en la era digital.
Las negociaciones del TLC entre el Mercosur y la UE tienen lugar en un entorno en el que se está definiendo de manera creciente la regulación de derecho de autor a través de acuerdos comerciales multilaterales. En nuestro informe, los principales puntos que discutimos fueron los siguientes:
- los plazos de derecho de autor no deben extenderse,
- los derechos de los usuarios deben protegerse expandiendo las limitaciones y excepciones al derecho de autor,
- la remuneración obligatoria interfiere con el licenciamiento Creative Commons,
- las medidas tecnológicas de protección no deben limitar el ejercicio de los derechos de los usuarios.
También recordamos el principio de sentido común según el cual las negociaciones de tratados comerciales deben ser transparentes e involucrar a la ciudadanía, no secretas y decididas a puerta cerrada.
Desde nuestro análisis del año pasado, ha habido dos nuevos borradores filtrados del capítulo sobre propiedad intelectual. Uno fue publicado por Greenpeace en diciembre de 2017 en base a la 28ª ronda de negociaciones. Otro fue publicado la semana pasada por el sitio web bilaterals.org, basado en el texto consolidado tal como quedó al final de la 32ª ronda de negociaciones que finalizó el mes pasado.
Como Jorge Gemetto escribió en el blog de la Asociación Communia, el borrador del capítulo de propiedad intelectual filtrado por Greenpeace reveló un gran desacuerdo entre las partes.
Se advierte fácilmente que, mientras el interés de la Unión Europea es el de aumentar los plazos y áreas de protección de la propiedad intelectual, así como imponer nuevas sanciones penales para las infracciones, los países del Mercosur buscan evitar estándares más altos de propiedad intelectual, incorporar excepciones y limitaciones obligatorias al derecho de autor, y favorecer la identificación y protección del dominio público.
Como lo advierte Gemetto, existe un gran desbalance entre el poder de negociación de cada parte, y la UE claramente tiene la ventaja. Estando la UE ya alineada con el marco restrictivo de propiedad intelectual “TRIPS Plus“, busca exportar a otros lugares estas medidas de incremento de la protección y su aplicación.
Finalmente, llegamos al borrador del capítulo de propiedad intelectual filtrado recientemente que publicó bilaterals.org. Hay algunos cambios importantes desde la versión publicada por Greenpeace.
La mención del dominio público se diluirá y quedará sepultada
La filtración de Greenpeace de diciembre de 2017 encontró que las partes discutían si (y cómo) debía mencionarse el apoyo al dominio público en el Artículo 4 (Principios). La UE propuso el texto: “Las Partes reconocen la importancia de un dominio público robusto, rico y accesible”, mientras que los países del Mercosur abogaron por: “Las Partes tendrán debidamente en cuenta la necesidad de preservar un dominio público robusto, rico y accesible, y cooperarán entre sí para identificar los diferentes materiales que han ingresado en dominio público”.
La versión de la UE ganó. El texto consolidado compartido por bilaterals.org ahora dice: “Las Partes reconocen la importancia de un dominio público robusto, rico y accesible”. Además, una nota en el documento mueve el texto de la sección “Principios” a la sección “Cooperación”.
La remuneración obligatoria permanece
La borrador anterior, publicado por Greenpeace, mostraba que las partes discutían si habría una remuneración obligatoria (Artículo 9.6) para los intérpretes, ejecutantes y productores de música. La UE quería que el texto dijera: “Las Partes otorgarán un derecho para garantizar que el usuario pague una única remuneración equitativa a los artistas intérpretes o ejecutantes y productores de fonogramas, si un fonograma publicado con fines comerciales, o una reproducción de dicho fonograma, se utiliza para la transmisión por medios inalámbricos o para cualquier comunicación al público.” El Mercosur quería que este derecho fuera opcional, sugiriendo que el texto dijera: “Las Partes pueden otorgar…”.
La versión de la UE ganó. El texto consolidado ahora dice “otorgarán”. Este cambio muestra un esquema que se repite en las negociaciones: las disposiciones que tienen que ver con la aplicación de la propiedad intelectual y la protección de los titulares de derechos son obligatorias (“deberán”), mientras que las disposiciones que beneficiarían a los usuarios y al interés público son solo opcionales (“pueden”). Este tipo de disposición interferiría con el funcionamiento de algunas licencias Creative Commons, exigiendo un pago incluso cuando la intención del autor es compartir su trabajo creativo con el mundo de forma gratuita.
La extensión del plazo de derecho de autor fue puesta en suspenso
El borrador filtrado por Greenpeace reveló que las partes continuaban discutiendo sobre el plazo de derecho de autor (Artículo 9.7). La UE quería la vida de autor + 70 años, mientras que el Mercosur quería la vida + 50 años.
El texto consolidado ahora dice “transcurrirá durante la vida del autor y no menos de 50 años o por 70 años cuando así lo disponga la legislación nacional de las Partes…”.
La versión del Mercosur ganó porque el texto indica que se aplicarán los términos nacionales existentes. Esta es una mejora significativa en el sentido de que no obliga a aumentar el plazo a los países que tienen un plazo más corto. Ampliar aún más los plazos de derecho de autor no hace nada por promover la creación de nuevas obras, e incluso exacerba los desafíos relacionados con los plazos extensos, como el problema de las obras huérfanas.
Las excepciones y limitaciones fueron reducidas al mínimo
La filtración de Greenpeace mostró que las partes discutían sobre el alcance de la sección sobre limitaciones y excepciones (Artículo 9.9). El Mercosur quería incluir una lista no exhaustiva de usos aceptables para ser cubiertos bajo limitaciones y excepciones, incluyendo la crítica, la cobertura de noticias, la enseñanza y la investigación.
Sin embargo, el texto consolidado publicado por bilaterals.org no incluye la lista no exhaustiva. En su lugar, esencialmente vuelve a apoyarse en el texto de la regla de los tres pasos (“Cada Parte establecerá excepciones y limitaciones a los derechos exclusivos solo en ciertos casos especiales que no entren en conflicto con la explotación normal de la obra y no perjudiquen injustificadamente los intereses legítimos de los titulares de derechos”).
La protección del derecho de autor y las medidas de aplicación de dicha protección siempre deben equilibrarse con consideraciones de interés público; en otras palabras, los derechos de los autores siempre deben limitarse, reconociendo y defendiendo los derechos de los usuarios en el ecosistema del derecho de autor. El texto consolidado solo proporciona una mínima consideración para los derechos de los usuarios.
Una cierta flexibilidad para ejercer los derechos bajo los esquemas de medidas tecnológicas de protección
Por último, la versión publicada por Greenpeace reveló que la UE estaba proponiendo un nuevo texto en torno a las medidas tecnológicas de protección (TPM, por sus siglas en inglés) (Artículo X.15). En ese borrador anterior, no se incluía ningún texto que autorizara a eludir las medidas tecnológicas para que un usuario pueda ejercer sus derechos bajo una excepción o limitación.
Sin embargo, el texto consolidado ahora incluye el siguiente texto: “Las Partes (UE: cuando sea permisible de conformidad con su legislación nacional) deberán (UE: podrán) garantizar que los titulares de derechos pongan a disposición del beneficiario de una excepción o limitación los medios para beneficiarse de esa excepción o limitación, en la medida necesaria para beneficiarse de esa excepción o limitación”. Por lo tanto, parece que habrá al menos alguna consideración legal para proteger la capacidad de los usuarios de eludir las TPM para ejercer sus derechos bajo una excepción o limitación.
Conclusión
Si bien es positivo que al menos las partes están llegando a la conclusión de renunciar a la extensión innecesaria del plazo de derecho de autor, la mayoría de los cambios en el texto consolidado muestran un persistente endurecimiento de la protección del derecho de autor, que favorece a los titulares de derechos a expensas de los usuarios y de los bienes comunes.
Además, las negociaciones siguen siendo esencialmente secretas y cerradas, con escaso conocimiento público salvo estas útiles filtraciones, y con pocas oportunidades para que la ciudadanía exprese sus preocupaciones. Es preciso reformar las negociaciones para apoyar plenamente un proceso que sea transparente, inclusivo y responsable.
Direito autoral no tratado comercial Mercosul-UE: poucas melhoras e muitos retrocessos
Publicado originalmente em inglês em 6 de abril de 2018. Tradução: Ana Luiza Araújo
Uma proposta recém vazada do tratado de livre comércio entre o Mercosul e a União Europeia mostra pequenas melhorias no capítulo sobre propriedade intelectual. Agora parece que a extensão desnecessária e injustificada dos prazos de direito de autor por 20 anos não está mais no tratado, e as partes introduziram alguma flexibilidade para que os usuários contornem as medidas técnicas de proteção com o objetivo de exercer seus direitos. Mas, em sua maior parte, as negociações continuam a favorecer um maior endurecimento do direito de autor às custas das proteções de direitos dos usuários e dos bens comuns. Como explicaremos abaixo, as medidas para apoio do domínio público continuam a ser diluídas, a cláusula que requer a compensação obrigatória — indiferentemente se o criador a deseja ou não — está mantida, e a seção que delimita as exceções e limitações aos direitos autorais foi reduzida ao mínimo.
No ano passado, em colaboração com diversos parceiros de nossa rede global, a Creative Commons publicou uma breve análise de políticas, cobrindo diversos problemas relacionados ao direito de autor em um esboço do capítulo sobre propriedade intelectual do tratado de livre comércio Mercosul-UE.
A União Europeia (UE) e o sub-bloco regional da América Latina, formado por Argentina, Brasil, Paraguai e Uruguai (o Mercosul) vêm negociando um tratado de livre comércio (TLC) desde o ano 2000. O TLC UE-Mercosul é amplo, abarcando o comércio de bens industriais e agrícolas, potenciais mudanças nas regras aplicáveis a pequenas e médias empresas e às compras públicas, e provisões sobre propriedade intelectual como patentes e direito de autor. Nessa análise, nós examinamos as questões que afetariam o domínio público, a criatividade e o compartilhamento, e os direitos de usuário na era digital.
As negociações do TLC Mercosul-UE acontecem em um ambiente no qual as políticas de direito de autor se estabelecem de maneira crescente por meio de acordos de comércio multilaterais. Dentre os principais pontos defendidos em nossa análise, destacamos os seguintes:
- Os prazos de proteção do direito de autor não devem ser estendidos;
- Os direitos dos usuários devem ser protegidos mediante a expansão das limitações e exceções;
- A remuneração obrigatória interfere com o licenciamento em Creative Commons;
- Medidas de proteção tecnológica não devem limitar o exercício dos direitos dos usuários.
Nós também compartilhamos do princípio de senso comum de que negociações para acordos comerciais devem ser transparentes e incluir o público, não secretas e decididas atrás de portas fechadas.
Desde a nossa análise, mais duas versões provisórias do capítulo sobre propriedade intelectual foram vazadas. Uma foi publicada pelo Greenpeace em dezembro de 2017, com base na 28ª rodada de negociações. Outra foi publicada na última semana pelo site bilaterals.org, com base no texto consolidado ao final da 32ª rodada de negociações que teve fim em março.
Como escreveu Jorge Gemetto no blog da Communia Association, o texto do capítulo sobre propriedade intelectual revelado pelo Greenpeace mostrou um significativo desentendimento entre as partes.
É fácil perceber que, enquanto o interesse da União Europeia é o de aumentar os prazos e áreas de proteção da propriedade intelectual, assim como impor novas penas para as infrações, os países do Mercosul procuram evitar padrões mais altos de propriedade intelectual, incorporar limitações e exceções obrigatórias para o direito de autor, e favorecer a identificação e proteção do domínio público.
Como adverte Gemetto, há uma grande discrepância entre os poderes de negociação de cada parte, com a UE claramente tendo a vantagem. E com a UE já alinhada com o restritivo marco regulatório “TRIPS Plus”, há uma procura por exportar essas medidas mais duras de proteção e aplicação em outros lugares.
Por fim, chegamos ao capítulo mais recente sobre propriedade intelectual publicado pela organização bilaterals.org, no qual temos algumas mudanças notáveis desde a versão do Greenpeace.
A menção ao domínio público será diluída e enterrada
A versão vazada pelo Greenpeace (em dezembro de 2017) revelou a discussão entre as partes sobre se (e como) deveria haver uma menção de apoio ao domínio público no Artigo 4 (Princípios). A UE propôs a linguagem “As Partes reconhecem a importância de um domínio público robusto, rico, e acessível”, enquanto os países do Mercosul defenderam a redação “As Partes levarão devidamente em conta a necessidade de preservar um domínio público robusto, rico e acessível, e devem cooperar mutuamente para identificar os diferentes materiais que ingressaram no domínio público.”
A versão da UE ganhou. O texto consolidado compartilhado pela bilaterals.org agora diz “As Partes reconhecem a importância de um domínio público robusto, rico, e acessível”. Além disso, uma nota no documento muda o texto da seção de “Princípios” para a seção de “Cooperação”.
A remuneração obrigatória fica
A versão anterior publicada pelo Greenpeace mostrava que as partes estavam discutindo se haveria a remuneração obrigatória (Artigo 9.6) para os intérpretes, músicos executantes e produtores musicais. A UE queria que a redação do texto fosse “As Partes conferem um direito para garantir que uma única remuneração equitativa seja paga pelo usuário aos intérpretes, músicos executantes e produtores de fonogramas, se um fonograma for publicado para fins comerciais, ou a reprodução de tal fonograma for utilizada para a difusão por meios sem fio ou para qualquer comunicação ao público.” Os países do Mercosul queriam apenas fazer deste um direto opcional, sugerindo que o texto fosse “As Partes poderão conferir…”
A versão da UE venceu. O texto consolidado diz “conferem”. Essa mudança repete um tema comum visto entre as negociações: cláusulas que se referem à aplicação da propriedade intelectual e à proteção dos detentores de direitos incumbentes são obrigatórias (“devem”), enquanto cláusulas que iriam beneficiar os usuários e o interesse público são apenas opcionais (“podem”). Este tipo de arranjo poderia interferir na operação de algumas licenças de Creative Commons ao exigir um pagamento mesmo quanto a intenção do autor seja o compartilhamento de seu trabalho criativo com o mundo de graça.
A extensão do prazo do direito de autor foi posta em suspensão
O texto provisório revelado pelo Greenpeace mostrava que as partes continuaram a discutir sobre os prazos do direito de autor (Artigo 9.7). A UE queria direitos vitalícios + 70 anos, enquanto os países do Mercosul os mesmo vitalícios + 50 anos.
O texto consolidado agora diz “transcorrerá durante a vida do autor e por não menos do que 50 ou 70 anos quando assim prover a legislação nacional das Partes…”.
A versão do Mercosul venceu porque o texto afirma que se aplicarão os termos nacionais existentes. Essa é uma melhora significativa no sentido de que não exige que os países com prazos mais curtos aumentem-os para o prazo mais longo. Estender ainda mais os prazos do direito de autor não faz nada para promover a criação de novos trabalhos, e até exacerba os desafios relacionados com prazos maiores, como o problema de obras órfãs.
Exceções e limitações reduzidas ao mínimo
A versão do Greenpeace mostrou que as partes estavam discutindo sobre o escopo da seção sobre limitações e exceções (Artigo 9.9). O Mercosul queria incluir uma lista não-exaustiva de usos aceitáveis a serem cobertos sob as limitações e exceções, incluindo críticas, notícias, educação, e pesquisa.
No entanto, o texto consolidado publicado pela bilaterals.org não inclui a lista não-exaustiva. Ao invés disso, ele essencialmente volta a se apoiar no texto da regra dos três passos (“Cada Parte irá estabelecer exceções e limitações para os direitos exclusivos apenas em certos casos especiais que não entrem em conflito com a exploração normal da obra e não prejudiquem de maneira injusta os interesses legítimos dos titulares de direitos”).
Medidas de proteção e aplicação dos direitos de autor devem sempre ser equilibradas com considerações do interesse público; em outras palavras, os direitos dos autores devem sempre ser moderados, reconhecendo-se e defendendo-se os direitos dos usuários no ecossistema dos direitos de autor. O texto consolidado somente provê o mínimo de considerações para os direitos de usuários.
Alguma flexibilidade para o exercício de direitos sob os esquemas de medidas tecnológicas de proteção
Por último, a versão do Greenpeace revelou que a UE estava propondo uma nova linguagem sobre medidas tecnológicas de proteção (Artigo X.15). Neste esboço anterior, não havia a inclusão de um texto que permitisse qualquer circunvenção de medidas tecnológicas para que um usuário possa exercer seus direito sob uma exceção ou limitação.
No entanto, o texto consolidado agora inclui a seguinte linguagem: “As Partes (UE: quando for permitido de acordo com suas leis nacionais) deverão (UE: poderão) garantir que os detentores de direito deixem à disposição do beneficiário de uma exceção ou limitação, na medida necessária para beneficiar-se dessa exceção ou limitação”. Então, parece que haverá pelo menos alguma consideração legal para proteger a capacidade de usuários de contornar as medidas tecnológicas de proteção para exercer seus direitos sob uma exceção ou limitação.
Conclusão
Ao mesmo tempo em que é positivo que ao menos as partes estejam chegando à conclusão de renunciar à desnecessária extensão do prazo dos direitos de autor, a maioria das mudanças na versão consolidada do texto mostra um contínuo endurecimento da proteção do direito autoral, o que favorece os titulares de direitos às custas dos usuários e dos bens comuns.
Além disso, as negociações continuam essencialmente secretas e fechadas, com pouco conhecimento público, salvo por esses úteis vazamentos, e poucas oportunidades para o público expresse suas preocupações. As negociações devem ser reformadas para apoiar plenamente um processo que seja transparente, inclusivo, e responsável.
Copyright in Mercosur-EU trade agreement: A little better, but mostly worse
A recently-leaked draft of the Mercosur-EU free trade agreement shows minor improvements to the chapter on intellectual property. It appears that the unnecessary and unwarranted 20 year copyright term extension is now dropped from the agreement, and the parties have introduced some flexibility for users to get around technical protection measures in order to leverage their rights. But for the most part, the negotiations continue to favor increased tightening of copyright at the expense of protections for user rights and the commons. As we explain below, measures to support the public domain continue to be watered down, the provision which requires mandatory compensation—whether creators want it or not—is retained, and the section outlining exceptions and limitations to copyright is pulled back to a minimum.
Last year, in collaboration with several partners from our global network, Creative Commons published a brief policy analysis covering several copyright-related issues presented in a draft of the intellectual property chapter of Mercosur-EU free trade agreement.
The European Union (EU) and the Latin American sub-regional bloc consisting of Argentina, Brazil, Paraguay, and Uruguay (Mercosur) have been negotiating this free trade agreement (FTA) since 2000. It’s expansive, addressing trade in industrial and agricultural goods, potential changes to rules governing small- and medium-sized businesses as well as government procurement, and intellectual property provisions such as copyrights and patents. We examined issues that would affect the public domain, creativity and sharing, and user rights in the digital age.
The Mercosur-EU FTA negotiations take place in an environment where an increasing level of copyright policy is being constructed through multilateral trade agreements. In our policy brief, the main points we argued included the following:
- copyright terms should not be extended
- user rights must be protected by expanding limitations and exceptions
- mandatory remuneration interferes with CC licensing
- technical protection measures must not limit the exercise of user rights
We also echoed the longstanding commonsense principle that trade agreement negotiations must be transparent and involve the public, not secret and decided behind closed doors.
Since our analysis, there has been two subsequent leaked drafts of the chapter on intellectual property. One was published by Greenpeace in December 2017 based on the 28th round of negotiations. Another was published last week by the website bilaterals.org, based on the consolidated text as it stood at the completion of the 32nd round of negotiations which ended last month.
As Jorge Gemetto wrote on the Communia Association blog, the text of the IP chapter leaked by Greenpeace showed significant disagreement between the parties.
It is easy to see that, while the interest of the European Union is to increase the terms and scope of IP protection, as well as to impose new penalties on infringement, Mercosur countries seek to avoid higher IP standards, incorporate mandatory limitations and exceptions to copyright, and favor the identification and protection of the public domain.
As Gemetto warns, there’s a big discrepancy in the bargaining power leveraged by each party, with the EU clearly holding the upper hand. And with the EU already aligned with the more restrictive “TRIPS Plus” IP framework, they’re looking to export these increased protection and enforcement measures elsewhere.
Finally, we arrive to the recent leaked intellectual property chapter published by bilaterals.org. There are a few notable changes since the Greenpeace version.
Mention of public domain will be watered down, and buried
The Greenpeace leak (Dec 2017) found the parties arguing whether (and how) there should be a mention of support for the public domain in Article 4 (Principles). The EU sought the language, “The Parties recognise the importance of a robust, rich, and accessible public domain,” while the Mercosur countries (MCS) advocated for, “The Parties shall take due account of the need to preserve a robust, rich, and accessible public domain, and shall cooperate with each other in identifying subject matters that have fallen into the public domain.”
The EU version won. The consolidated text shared by bilaterals.org now reads “The Parties recognise the importance of a robust, rich, and accessible public domain”). In addition, a note on the document moves the text from the “Principles” section to the “Cooperation” section.
Mandatory remuneration stays
The earlier Greenpeace version showed that the parties were arguing whether there will be mandatory remuneration (Article 9.6) for performers and producers of music. The EU wanted the text to read “The Parties shall provide a right in order to ensure that a single equitable remuneration is paid by the user to the performers and producers of phonograms, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public.” MCS wanted to only make this right optional, suggesting that the text should read “The Parties may…”
The EU version won. The consolidated text now reads “shall.” This change repeats a common theme seen within the negotiations: provisions that have to do with enforcement and protecting incumbent rights holders are mandatory (“shall”), while provisions that would benefit users and the public interest are only optional (“may”). This type of arrangement would interfere with the operation of some Creative Commons licenses by requiring a payment even when the intention of the author is to share her creative work with the world for free.
Copyright term extension put on hold
The draft leaked by Greenpeace found that the parties continued to argue about copyright term (Article 9.7). EU wanted life + 70 years, while MCS life + 50.
The consolidated text now reads “shall run for the life of the author and not less than 50 years or for 70 years where the domestic legislation of the Parties so provides…”.
The MCS version won because the text states that existing national terms will apply. This is a significant improvement in that it doesn’t require the countries with the shorter term to increase to the longer term. Further extending copyright terms does nothing to promote the creation of new works, and even exacerbates related challenges, such as the orphan works problem.
Exceptions and limitations pulled back to a minimum
The Greenpeace leak showed that the parties were arguing about the scope of the section on limitations and exceptions (Article 9.9). MCS wanted to include non-exhaustive list of acceptable uses to be covered under limitations and exceptions, including for criticism, news reporting, teaching, and research.
However, the consolidated text published by bilaterals.org does not include the non-exhaustive list. Instead, it mostly goes back to relying on the 3-step test language (“Each Party shall provide for exceptions and limitations to the exclusive rights only in certain special cases which do not conflict with a normal exploitation of the subject matter and do not unreasonably prejudice the legitimate interests of the right holders.”).
Copyright protection and enforcement measures should always be balanced with public interest considerations; in other words, the rights of authors should always be tempered by recognizing and upholding the rights of users in the copyright ecosystem. The consolidated text only provides the bare minimum consideration for users rights.
Some flexibility to exercise rights under TPM schemes
Finally, the Greenpeace version found that the EU was proposing new language around technological protection measures, or TPMs (Article X.15). In that earlier draft, there was no inclusion of text that permits any circumvention of technological measures in order for a user to exercise their rights under an exception or limitation.
However, the consolidated text now includes the following language: “The Parties (EU: where permissible in accordance to their domestic law) shall (EU: may) ensure that right holders make available to the beneficiary of an exception or limitation the means of benefitting from that exception or limitation, to the extent necessary to benefit from that exception or limitation.” So it appears that there will be at least some legal consideration to protect the ability of users to circumvent TPMs in order to exercise their rights under an exception or limitation.
Conclusion
While it’s positive that at least the parties are coming to the conclusion to forego the gratuitous copyright term extension, most of the changes in the consolidated text show a continued tightening of copyright protections that favor incumbent rights holders at the expense of users and the commons.
Furthermore, the negotiations remain mostly secretive and closed, with little public knowledge save for these helpful leaks, and few opportunities for the public to voice their concerns. The negotiations must be reformed to fully support a process that is transparent, inclusive and accountable.
Chris Bourg on the Compelling Vision for an Open Digital Commons
Chris Bourg, by L. Barry Hetherington, available under a CC-BY license
MIT Libraries Director Chris Bourg is one of the most salient voices in the library community for open access, diversity and inclusion, ethics in scholarly publishing, and social justice. As a keynote speaker for this year’s CC Global Summit, she’ll be discussing the nuances of the Open movement as an advocate for the digital commons and director of a major open access initiative.
Chris’s tweets and blog are must-follows – her dog, Jiffy, is an adorable and frequent guest star. In this interview, she discusses tech optimism, storytelling, diversity, and the fallacy of neutrality. Join Chris and more than 400 open advocates at the CC Global Summit in Toronto from April 13-15.
As an open movement, it’s become difficult to live our values as the web’s content Commons have become increasingly enclosed and the halcyon days of internet utopianism seem long over. As a prominent figure in the movement and a crusader for open, how can we do better? What are tangible and intangible steps we can take to move the needle? How can libraries play a role?
I think that generally speaking, I’m an optimist, but not a tech utopian. So I think we keep focusing on the ultimate goal and reasons for promoting an open digital commons. There are compelling stories to be told about the harms of information scarcity and knowledge monopolies, and there are equally compelling stories about ways in which open access to knowledge and culture helps us solve big (and small) challenges across the globe. We have to unearth and tell those stories, and bring more people and communities in to the cause. In some ways, the increasing commercialization of not just scholarship, but of our own personal, social, and behavioral data may be the wake-up call that leads to the next wave of organizing around creating a truly open, non-commercial, digital commons. I think libraries can play a role by acting as the trusted facilitators of information creation, exchange, and preservation that we have always been. A digital commons that combines the values of openness and sharing with the values of privacy and informed choice sounds an awful lot like a library to me – or at least the kind of network of libraries that many of us aspire to create and maintain.
In your position as Director of MIT Libraries, you are an outspoken advocate for open access and knowledge resources. The question of why libraries need to stand up for open access has been answered in a variety of places, but why are the MIT libraries central to this fight?
A big part of what drew me to this job at MIT is the fact that MIT, and the MIT libraries in particular, combine a strong cultural commitment to openness with an equally strong commitment to building the infrastructure needed to openly share knowledge resources. MIT has led before in making the fruits of its research and teaching open to the world; with Harvard in 2008 and 2009 on passing Faculty Open Access Policies, and before by launching Open CourseWare in 2000, with the mission of sharing all of MIT’s course content online, for free. When the MIT Faculty passed the OA policy in 2009, they turned to the libraries to implement the policy. The libraries at MIT have long been seen as a key player in facilitating the dissemination of MIT research to the world, and frankly, we’ve been pretty good at it. Nearly 50% of MIT faculty journal articles written since 2009 are openly available to the world – that’s nearly 27,000 articles, downloaded nearly 9.5 million times.
We are in a great position in the MIT libraries to be able to partner with leading scholars across the Institute, in Engineering, Sciences, Business, Humanities and Social Sciences, and Architecture and Planning, to strategize on what’s next for open access. Through the work of the recently launched Ad hoc Task force on Open Access to MIT’s Research, which I am co-chairing with Electrical Engineering and Computer Science Professor and founding director of Creative Commons, Hal Abelson, we are basically asking what’s next? How can we push the needle further, and how can MIT continue to lead? Creating a more open scholarly record will require changes at the technological, legal/regulatory, political, and social levels; so our task force has experts from all those perspectives represented. We are also reaching out to experts across the globe to inform our recommendations.
We talk a lot in libraryland about whether the open access movement and/or institutional repositories have been successful, but/and I think what MIT has been able to do in getting nearly 50% of the journal articles of our faculty in our open repository is a compelling success story. And that success story is an MIT Libraries story, so I feel some obligation to build on that success and to leverage it for the broader community of libraries and other organizations who share the goal of opening up our cultural and scholarly heritage to a global audience.
In his ALA talk this year, Junot Diaz pulled no punches when it came to the issues of diversity in libraries. “I wish that libraries would finally have a reckoning and know that [staffs that are] 88% white means 5000% percent agony for people of color, no matter how liberal and enlightened you think you are,” he said. You cited this quote in a recent talk as well. In your opinion, how can we do better as a movement for free and open knowledge? As librarians, researchers, scientists, and artists? How can we, in his words, “decolonize libraries,” or in the parlance of this conference, “decolonize open?”
I think we always have to ask who and what is missing, and continue to work to not just be more inclusive, but also to decenter white, western knowledge; and center the knowledge of marginalized communities.
But/and, instead of doing it ourselves we need to look to the people who are doing this work in and with those communities. Two examples I love are the work being done by Anasuya Sengupta and her colleagues at whoseknowledge.org, and P. Sanaith’s work creating and maintaining the People’s Archive of Rural India.
Decolonizing scholarship and decolonizing the web will require radical collaboration across many social, geographical, and political divides; and will have to be based on mutual exchanges of knowledge and skills. All of that requires trust, which is something that takes time to build and is based on relationships and authentic human connection. So if we want to decolonize open, then maybe we need to decolonize our social networks first.
One of the longest running and most frustrating conversations within libraries is whether they are “neutral.” (As you write, you are strongly on the “hell no” side.) Can you speak to the politics of neutrality within open, and particularly as it regards seemingly “neutral” actors like CC licenses and libraries? How does the conversation about “neutrality” relate to issues of diversity and inclusion within the free knowledge movement?
I don’t think of CC licenses or libraries as neutral. They are both predicated on the idea that people ought to have the ability to freely create, share, and access knowledge and cultural materials. That’s actually a pretty radical idea. Even if CC licenses and libraries can be and are used to provide access to a huge range of ideas and viewpoints, that doesn’t make them neutral. One of the arguments I make is that you can’t be neutral if one side argues that certain ideas should not be available in libraries (whether those ideas are contained in books representing LGBTQ families, or in gatherings of neo-Nazis) and another side argues that you have to include all ideas and viewpoints. You can’t satisfy both sides – you can’t keep the LGBTQ book and not keep the LGBTQ book at the same time. I may start calling this the Schrodinger’s Library argument against neutrality.
The fact that libraryland continues to have these debates about neutrality is really frustrating, and is very much related to issues of diversity and inclusion. So many of the library debates about neutrality are theoretical and academic and detached, and I think that reflects the stark lack of diversity in our profession. Too often the argument that it is a moral imperative for libraries to represent all sides of an issue, and to serve all patrons regardless of beliefs, come from a position of privilege and relative safety. For marginalized folks, it can feel like these debates about neutrality are really debates about whether we have to honor and engage with people who deny our very humanity and seek our destruction. Many of us would argue that allowing those who deny the humanity and basic dignity of others to coopt the legitimacy of our libraries and our profession to spread their hatred and intimidation is not in any way a neutral choice.
What is the need for Creative Commons today and why are you coming to keynote the Summit?
What I love about Creative Commons and the CC community is that it is driven by a compelling vision of an open digital commons, and that it provides the tools for people across the globe to choose how they want to participate in that commons. That combination of an abiding belief that openly accessible culture and knowledge are good for society, with a commitment to honoring individual choice is powerful; and it resonates with what I think is needed to advance the perpetual project of decolonizing and opening up the internet.
We are CC: This year’s CC Global Summit Scholarship Recipients
This year was a transformative year for our Global Community. We launched our new network structure and worked globally to light up the Commons. The Summit is our annual time to come together to celebrate, appreciate, amplify, and learn with each other.
For the past two years, Creative Commons has funded attendance for nearly 25% of Global Summit attendees, all of whom are working to advance the cause of open knowledge in their home communities. This cohort of advocates, activists, community members, lawyers, librarians, and more were chosen by an outstanding committee of volunteers and staff.
CC was able to fund travel and expenses for an incredibly diverse group of people this year, awarding nearly $75,000 in funding. Our 97 scholarship winners represent six world regions. The majority of scholarship recipients come from the Global South – 91% of the money awarded went to this region, divided over 72% of recipients. 22% of scholarship recipients are from Latin America, 18% from Asia Pacific, 25% from Africa, 22% from Europe, 8% from the Arab World, and 5% from North America.
As CC Canada Public Lead Kelsey Merkley wrote on Twitter, “Travel is… hugely valuable. The opportunity cost is too great if we miss those voices in the room.” Through programs like our scholarship program, we are able to uplift those voices and affirm our commitment to diversity, accessibility, and usability in a variety of disciplines.
Below, hear how scholarship recipients are looking forward to engaging with their community at the Summit and spreading the values of the Commons around the world. The CC Global Summit will take place in Toronto, CA from April 13-15. Join us!
Andrés Delgado, Ecuador
I’m Andrés Delgado, contributor at Creative Commons Ecuador since 2012, and coming to the Summit from its capital city, Quito. The Global Summit is my first international event ever and I am overly excited to meet like-minded people from all over the world. I am looking forward to connect and create collaborative projects with them–seriously–I’ll be directing a workshop called “Mapping and engaging stakeholders and policy implementation for the Commons,” where you can learn how to address a high-ranked politician as well as how to create a coalition or face an opposing one (Saturday 4 PM, SoCo Ballroom C).
Jessica Stevens, Australia
I’m Jessie, a PhD Candidate at the Queensland University of Technology and a member of the Australian CC Chapter. I am coming to the Summit from Brisbane, Australia. I’m excited to attend the Global Summit because it’s a great opportunity to meet with people to share ideas, discuss new projects and learn more about what is happening within the CC community. I am involved with CC as my personal beliefs and goals align with those of CC – I believe that access to knowledge, culture and information is fundamental to progress and development! I will be running a session in the Open Bazaar on ‘Open Education, Open Publishing, and the value of access’.
Carlos Guerrero, Peru
I’m Carlos Guerrero, Peruvian lawyer enthusiastic about technology and IP, coming to the Summit from Lima. This is my second time in Toronto and I’m really excited to attend the sessions, hang around with friends and share thoughts and drinks. I’m involved with CC because I believe in the philosophy of the openness and the value of the Commons.
Sara Fratti, CC Guatemala
I’ve been a CC advocate since 2013 – this community has changed my life. I’m excited to attend this year Summit, to share experiences around the Commons and meet amazing humans that work on the openness. Come say hi at the CC Newbies Breakfast on Saturday at 8am, we are going to have some activities related to what brought us to the Commons, sharing is caring. Also join me at the session I’ll be facilitating:Central America goes CC on Saturday at 4pm.
Rebecca Hogue, USA
I’m Rebecca Hogue, an Associate Lecturer at the University of Massachusetts-Boston in the MA in instructional design program. I’m also a co-director of Virtually Connecting. I’m excited to be heading to CC global summit in order to learn additional ways I can integrate CC into my teaching. I’m also looking forward to meeting several Virtually Connecting “regulars” who are also CC Global Summit regulars – many of whom I will meeting face-to-face for the first time in Toronto. I’m not facilitating any formal sessions, but you will find me supporting informal Virtually Connecting (http://virtuallyconnecting.org) hallway conversations during the summit.
Shahadu Sadik, Wikimedia Ghana
I volunteer in contributing to Wikipedia and its sister projects and I will be representing Ghana at the 2018 CC global summit in Toronto, Canada.
I’m super excited to attend CC summit because I will be meeting other amazing contributors from the open community. I hope to learn more from other commoners across the globe. I am involved with CC because I believe in openness, diversity and sharing knowledge. I will be volunteering in the future of the commons track during the summit.
George Hari Popescu, CC Romania
It will be my 2nd participation at the CC Summit and I will have the opportunity to see some results of the last year’s proposals and campaigns. I will also be happy to meet again in person people whom I met last year and who are involved in interesting projects. I’m from Romania, an Eastern European country, member of the European Union, still struggling with reforms in open education, copyright and innovation.
I am remotely working as Translation Assistant for Creative Commons, supervising the translations of licenses in different languages and communicating with affiliates and teams across the Globe. I believe that all creators on Earth need to have the CC licenses in their own languages, in order to further use and promote them. In the Translation Working Group session, we will be trying to form a diverse team in order to streamline and better implement translation of licenses and supplementary useful content from CC.
Franco Giandana, Argentina
I look forward to meeting you all in Toronto soon! My name is Franco Giandana and I will be assisting from Argentina, where I run a non profit Digital Rights organization and work as a digital lawyer, specially close to the creative sector. I am excited to get involved with the Global Community and to be part of the Commons network, and I expect to be having amazing conversations and discovering new perspectives on policy making and support for the creative sector in the Global South!
Virginia Rodés, Uruguay
Hello! I am Virginia Rodés and these are my wonderful partners of open adventures from the University of the Republic, Uruguay. I am happy and grateful to be able to participate in the CC Summit 2018 to contribute to disseminate the advances and challenges in open education in my country and in the Latin American region. With awesome colleagues from the region I will participate in the Session “How to involve public institutions with open policies?”, Difficulties and success stories from Latin America Saturday, April 14, 5:30 pm.
Leo Arias, Costa Rica
I’m Leo, from Costa Rica. I am member of a JáquerEspeis, where we try to combine many diverse expressions of free software, hardware and culture. I have just seen the schedule for the summit, and without a doubt it will help us on our journey to become a more sustainable collective, and to make our work more relevant to our region. I am looking forward to learn from and work with so many people from all over the world who are leading the open revolution. I will participate in the translations session on Saturday morning.
Esther Ekong, Nigeria
I am Esther, a research fellow at the Nigerian Institute of Advanced Legal Studies, the institutional lead for CC Nigeria. I am one of the Institute’s coordinators for CC Nigeria and I am really excited about the Global Summit. There is still a level of suspicion and distrust among Nigerians about open knowledge caused largely by inadequate information. Being a strong advocate of ‘Openness’, I believe the summit is an opportunity for me to learn more and find out effective ways to help other academics especially in Nigeria, to appreciate ‘Openness’. It will also be an opportunity to meet others from different parts of the world and find out how they have dealt / are dealing with resistance to ‘Openness’. Thank you for the opportunity!
Ifeoma Shodeinde, Nigeria
My name is Ifeoma, a Lecturer in the Faculty of Law, University of Lagos. Nigeria. I feel awesome! I look forward to the Global Summit. I have a lot to learn from this global movement for the commons and connecting with friends.I have written, published and presented papers in local and International forums on Creative Commons and access to knowledge. I sincerely believe in open access to knowledge especially for those of us in the developing economies. I look forward to meeting every member of this Great Family!
Kamel Belhamel, Algeria
I’m Kamel, a Professor of Chemistry at the University of Bejaia in Algeria – North Africa. I’m thrilled to attend the CC Global Summit in Toronto because I’m very interested in collaboration, and also contributing to the African presence in open education. I’d like to see things change and even visible globally, also see a move toward having openness in terms of educational policy. I’ll participate to open Bazaar on Friday, April 13th at 2:00 pm.
Antonio Martínez Velázquez, Mexico
I’m Antonio, journalist, editor and digital rights activist from Mexico. For the past eleven years I have been a great Creative Commons enthusiast. Since then I have made sure that the sites I have edited, the texts I have written and the initiatives in which I participate are in CC. This is the first time I will be able to learn directly from the community that has inspired me and made my work possible. See you in Toronto!
Eddie Avila, Bolivia
I’m Eddie Avila, Rising Voices Director with Global Voices. I’ll be traveling from Cochabamba, Bolivia to take part in the CC Summit. I’m especially interested in learning more about alternative ways that indigenous communities are expressing and sharing knowledge in the digital age. I’ll also be participating in the Translation Working Group.
Achraf Younssi, Morocco
I’m Achraf, Filmmaker from Morocco, and member of madNess Association. I’m coming to the Summit from Casablanca, Morocco. I’ll be presenting at the Global Summit to learn more about the CC network, and sharing knowledge, and to exchange with people from the community, also to see what does other organizations like us are working on in relation with creativity, expose and share the world. We are working on a CC chapter in Morocco, specially about our project CCCC and the advocacy process about copyright and especially CC.
Penny Andrews, UK
I’m Penny, a researcher at the University of Sheffield, and I’m coming to the Summit from Leeds in Yorkshire. I work on issues around policy and governance in Open, alongside my other research and teaching. I’m really looking forward to meeting friends old and new and building on our collaborations. I am involved with Open because it’s an important part of social justice. I’ll be facilitating a session called Infrastructure is Everything, Governance is Everything, Inclusion is Everything! on Friday at 5.30pm and you should check out the Sched to find out how you can contribute in advance.
Photo by Sebastiaan Ter Burg, CC BY
Peter Leth, Denmark
I’m Peter Leth, affiliate for CC Denmark, where I work as an educational advisor, trying to help schools, GLAMs, teachers and of course pupils to know and use Creative Commons. Over the last 10 years I have tried to find out what the best set of tools and activities are when adopting Creative Commons into education. I going to speak about it in the session “How to bring CC into education,” with my collegue Rikke Falkenberg. It is my second summit, and I look forward meeting many of you again. It gives me so much inspiration and optimism. Thank you all.
Maryam Chakouk, Morocco
I’m part of madNess, an NGO working for the development and promotion of creative industries in Morocco and Africa. I’m also preparing a PhD in economics and management.
My daily work at madNess with creatives and artists, as well as the difficulties I personally meet as a student researcher, have pushed me to embrace the philosophy of open knowledge. That’s why I joined the global movement for the Commons. Being able to participate in the Global Summit is an opportunity for me to learn more and thus transmit more.
Mohamed Rahmo, Morocco
I‘m the President of madNess an NGO that is creating and curating the Creative Commons Moroccan chapter – we are very excited because right now we are doing work about educating and promoting the CC culture and the open culture through several projects. The mean focus now is to introduce people to Creative Commons, then push them to publish content under Creative Commons licenses and also advocate about the copyright policies here. First step is to make the Creative Commons part of the Moroccan copyright law and pass policies that make institutions use the CC. We are very excited about the summit because we will advocate about our CCCC (Creative Commons Content Creation) project and also network with counterparts from all over the world and find opportunities for collaboration and work together for a more open world.
Nicolas Jupillat, Canada
I was lucky to co-lead the official French translation process of the CC 4.0 licenses on behalf of CC Canada, in cooperation with CC France and CC Luxembourg, with the support of community members from all over French-speaking Europe and Africa. I became involved in the project because I firmly believe in the role of the open movement in promoting linguistic and cultural diversity online. After more than two years of online exchanges and two face-to-face meetings in France and Burkina Faso, we came up with translations we could be proud of and made lasting friendships. I am excited to see my friends from the Francophone community again and meet the rest of the broader global community during the summit. I will be facilitating a session with Danièle Bourcier on Effective tools of Communication and Collaboration within the Francophone CC Community.
Sam Muirhead, New Zealand
I’m Sam, coming from Wellington, Aotearoa New Zealand, and this will be my first ever event with the CC community, I can’t wait! I want to see a much wider range of people collaborating online, and building commons together, particularly in the arts. I’ll be running an open source collaboration workshop called Cut, Copy & Paste: we’ll use an analog version control system (rubber stamps, a photocopier and a typewriter) to create, remix and fork zines. We’ll be sharing stories and ideas about designing for remix and participation!
Lucien C.H. Lin, Taiwan
Hi I’m Lucien, the Legal Adviser at Open Culture Foundation. I have been a participant of CC Taiwan since 2007 – for quite a time. The past few years, I have engaged in the Open Data promotion activities in Taiwan, and successful help the authorities to apply a new Open Government Data license with a CC BY 4.0 switching clause. That makes almost all of the materials provided on the official data portals in Taiwan able to be utilized under CC licenses. I look forward very much to meeting more friends at the Global Summit this year, it’s the best occasion that we can share what we do in CC promotion and how we can do that together or learn how to do that in a more collaborative and efficient way. During the summit, I can be found in most of the OpenGLAM sessions, and other legal framework related ones.
Saša Krajnc, Slovenia
I’m Saša and I work at the Intellectual property institute in Ljubljana, Slovenia. Our institute offers consulting services in the field of IP, but I am very happy and proud, that we can also engage in activities promoting open education and sharing of creative content and advocate for changes of IP laws, which will benefit the open society. I am looking forward to meeting the members of the CC Community and broadening my views at my first Global Summit in the awesome setting of Toronto!
Margorie M. Merel S., Panama
This summit is a great opportunity for all those who wish to research on copyright and contribute to open knowledge.
Aisulu Chubarov, Kyrgyz Republic
Thank you for the opportunity to attend the CC Global Summit! I am so excited about it! I have been working over CC licensing issues for several years although there is no formalized CC representation in the Kyrgyz Republic. I am therefore keen to learn more how the CC ecosystem works, how to get involved into the CC network, promote the CC mindset as well as learn about best practices in collecting and promoting open educational content. The schedule of the Summit is so eventful; I wish I could attend all the sessions!
Razan Al-Hadid, CC Jordan project lead
I’ll be attending the summit coming all the way from Jordan. I’m so very excited to meet all the folks from all around the globe to pass our experiences and learn from each other. I’ll be presenting the session “Faces of the commons in the Arab World” Friday 13th April at 4:00 pm. Catch you there.
Plamena Popova, Bulgaria
I’m Plamena, part of the CC group in Bulgaria since last year. I am particularly excited of the chance to learn more about the CC initiatives in the area of education/Open Education Movement and ways to contribute to these ideas and developments. Looking forward to a great Summit!
Sabreen Taha, Palestine
I’m Sabreen, a freelance TV producer and journalist, and I’m from Jerusalem, Palestine. I have used a lot of material from Creative Commons before but never really understood how this community is building and developing itself. I am very excited to attend the Global Summit because it will be a great change for me to meet new people and learn from their experiences and be able to become part of this community and take all the knowledge back to my people at home.
Matías Butelman, Argentina
My name is Mattías. I am a recent member of Creative Commons Argentina. Here in Buenos Aires for the last five years I have been working in areas related to digitization of collections kept in libraries, archives and museums, and both the technological and IP issues associated with the digitization workflow and with sharing the results of digitization online. Structural conditions in Argentina demand sustainable approaches to the technical processes involved in the opening of collections, mainly the use of open source software and hardware. The efforts local organizations must make in order to use these open technological resources subsequently demand close cooperation with other local and also global actors, and the Summit looks like the perfect place to find likeminded people from around the world interested and passionate about these issues and the wider open movement.
Savithri Singh, India
I’ve been an advocate of Creative Commons for more than a decade. CC and openness has really changed my outlook on academics and life! I’m excited about the Global Congress. I hope to meet a lot of people who think alike on access, and share and learn. Looking forward to an exciting summit!
Salim Al Kharusi, Oman
I work as Deputy Director of the Department of Human Sciences Curriculum Development for English Language, at the Omani Ministry of Education.
I am so glad that have been offered a scholarship to attend the CC Global Summit and I am sure that such a valuable opportunity will further expand my knowledge and experiences in the fields of commons, open resources and copyright. It will also be an exceptional chance to meet people/professionals from different countries and to connect to community members and professionals who share the same interest. I am so excited to be at the event and have started counting down the days before the event. Looking forward to meeting you in Toronto at the CC Global Summit, April 2018, and to exchanging ideas and thoughts with you.
On this occasion, I would like to express my sincere thanks and gratitude to the organizing committee and all those who are sponsoring this event. without them I would not have been here at this summit and there would not also have been a CC Summit. Wishing them all the best and all success.
Werner Westermann, Chile
I am Werner, an open education advocate, activist and researcher. Comming to the Summit from Santiago, Chile, my affiliation is the Library of National Congress of Chile where I run a Civic and Citizenship Education Program. There I am working on the emergent trend of Digital Citizenship education where I’ll be presenting as strategy to mainstream educational commons, alongside Jenni Hayman, on a very interesting and interactive workshop, so everyone invited!!! Also, the Summit will be setting to launch joint projects with REBUS Foundation and Ryerson University looking to build Open Textbooks.
Emilio Velis, CC El Salvador
I’m attending my second summit, ready to explore new ways with collaborating with other chapters and projects, as well as to represent and support the incredible work that the Latin American network is already doing. I believe in sharing as much as you can, and to build an open future for those who currently have no access! I’m looking forward to see you all soon! You can find me on Slack and Twitter as @dbsnp.
Growing an Open Movement: Claudio Ruiz on CC’s Global Network
Earlier this year, Creative Commons publicly launched the CC Global Network, a program designed to provide new and simple ways for anyone in the world to get involved with Creative Commons and the CC community. The Global Network was initiated and developed by members of CC’s international community over a two-year period that included extensive research and consultation, as well as nearly two dozen meetings with CC stakeholders.
As we approach this year’s convening of the Creative Commons community — the CC Global Summit (happening in Toronto, Canada from April 13-15) — it seemed like a good time to check in about what’s happening with the Network. Below, CC’s Claudio Ruiz, who has been responsible for guiding the program’s development, discusses how the Network came to be and offers a few thoughts about where things are headed.
Please introduce yourself and describe your role with Creative Commons.
I’m Claudio Ruiz. I’m based in Santiago, Chile, and I’m the Director of Ecosystem Strategy at Creative Commons.
What is the Creative Commons Global Network? How is it different from the CC affiliate community that preceded it?
The original Creative Commons affiliate community responded to a need that existed in a particular moment in time. That network of volunteers was established to translate — both linguistically and legally — the Creative Commons copyright licenses, so they would be valid around the world. That effort was massive and successful, resulting in jurisdiction-based licenses in over 85 countries on every continent.
But our network naturally evolved and began to include more people from non-legal backgrounds who were willing to participate in the Open space that our licenses had helped create. Creators, advocates, librarians, and activists started to increasingly contribute to the network; meanwhile, new challenges emerged that related to our community having a more active role in policy and advocacy for things like copyright reform and in the open education space. Additionally, in 2011, Creative Commons announced an internationalization process as part of the 4.0 versioning of our licenses, which meant translations of the licenses were no longer required. These factors brought us to what we have today: a new network that’s based on the success of the past but looks at the challenges we should face in the future.
How did this change happen? Why did we do this?
This was a process that was conceived by the network and directed by the network’s members. It kicked off formally in 2015 at the Creative Commons Global Summit in Seoul, but informal conversations about how and why we might make these changes had begun long before. A diverse group of members of the CC community — the Network Strategy Steering Committee — was created to lead this process. We put out an open call for leadership, which more than 20 people from around the world volunteered to join. That committee was responsible for identifying issues and opportunities, developing insights, and suggesting models for discussion.
This work later included research (like Faces of the Commons, a 300-page multi-region report with recommendations and insights); an open consultation with the broad CC community including affiliates, partners, funders, and the Creative Commons board; and 22 online and in-person meetings with participation from more than 80% of network’s active members. Finally, the outcome was the Global Network Strategy, which was finalized and launched at the 2017 CC Global Summit.
What are the goals of the CC Global Network?
The goals are no less than to build a global commons of creativity and knowledge, and to grow a movement that advocates, promotes, and enables openness and sharing around the world.
Those are the ultimate goals. But in the meantime, we’re developing a structure for working together (called Network Platforms), a decision-making process for the network (the CC Global Network Council), and local structures built around the work (Chapters) — these will be the groups people use to organize themselves in each country.
What kind of people are members of the CC Global Network? What kind of work are they involved in?
It’s made up of activists, academics, lawyers, professors, educators, and creators from all over the world. All of them are people who recognize the CC Network as a space for meeting people who share values and for contributing to a global commons of knowledge. We’re still in the process of building the network, based on the earlier affiliate community, so it will be interesting to see what new kinds of people we attract.
How does someone become a member of the CC Global Network? Why should a person who is interested in Creative Commons and open knowledge take the formal steps to become a member?
Membership is the key element of the new structure. Members have a say over the way local Chapters are organized. They make decisions about what kinds of work gets done, and they orientate the work of Creative Commons at a global scale. Becoming a member of the CC Network is free and easy. You just need to apply on the Network webpage. Include your reasons for wanting to participate in this community, and tell us about your contributions to our areas of interest. Additionally, you will be required to have two existing members of the Network vouch for your application.
Get involved with the CC Global Network:
It’s a Business Model Based on Sharing
Sebastiaan ter Burg on sharing as a way of life, business and innovation
In advance of the Creative Commons Global Summit, we’re gathering the stories of inspiring humans working around the world to shape the Commons’ future. We want to share your story, too — drop by the “Humans of the Commons” listening lounge at the Summit to get interviewed and add your voice. Here’s an edited transcript of Sebastiaan’s story:
When I started taking photos, it was just a hobby for me. It was never my goal to start earning money out of photography and videography. Then in 2007, I saw the TED talk by Lawrence Lessig on how the law is killing creativity. That’s when I started using Creative Commons licenses. I was already using Flickr to share my photos with people, and then through another project I got involved with people working on Wikipedia as well.
Working this way, I started getting more assignments because people saw my work popping up everywhere. And so I started asking my clients if they wanted me to share their work too in the same way, so that their photos can be used on Wikipedia.
Doing it that way not only benefits my clients, but also provides high quality material for everyone. During the recent European Parliamentary elections, for example, in one instance it took only twelve hours from the time I first took the photo for it to show up on Wikipedia — so that when people started looking for these candidates, those photos popped up almost immediately.
Sometimes I call myself a “sharing consultant.”
Creative Commons allowed me to start this business model. It’s a business model around sharing. Sometimes I call myself a “content consultant,” an image consultant or a “sharing consultant.” Creative Commons allowed me to create this niche. I’m one of the few people working this way around the globe. But I don’t want to be the only person in the Netherlands doing it this way; my hope is that more creatives will start thinking and working this same way.
Sharing as default for non-profit organizations
For non-profit organizations, using CC licenses is a way of giving back to society. But it’s also about enabling other people to share and spread your message. If you launch a campaign around something you’re passionate about, then of course you want other people to spread that message for you – even in ways that aren’t always directly linked to your organization.
If you want fewer people to be living in poverty, for example, then it shouldn’t be a problem that people are getting and spreading that message in all kinds of ways – and not just hearing about your own organization. You want to empower others working on that same goal.
We need to think beyond our own organizations.
To be more effective, we need to not only scale up our own individual organizations, but also think beyond our organizations. What could people outside your organization do if they had greater access to all the stuff you’re creating daily?
I hope to flip the mentality. I want non-profit organizations to think of sharing as the default, not the exception, or just cherry-picking one or two elements they think are worth sharing.
The Faces of the Commons
At last year’s global summit I took portrait photos of the attendees, to collect the “faces of the Commons.” We made a video of those faces with some text saying, “We are a global community of creators in every field, sharing our work and the works of others with the world.” The video has now been translated into 18 different languages, and anyone can add a new translation. It’s so cool to be part of that.
Attending the Creative Commons summit is the best way to talk to people from other countries and hear about what’s happening in their region. In the Netherlands and Europe our way of thinking about ownership, law, and copyright is often so different from how people think in South America or Africa. Being able to connect with everyone during the summit, and hearing how things are seen and what challenges they’re facing — that’s very valuable.
“Contributing to the Commons makes me happy”
I hope our future is one where more people are willing to share. But right now there are so many changes happening for people, [like professional photojournalists, for example], that their willingness to share may actually be decreasing in some instances. So that’s a threat to the Commons: there’s a polarisation between those who want to share and those that don’t want.
The other challenge stems from online platforms and how they are embracing the Commons. Flickr, for example, is still using Creative Commons 2.0 license and we’re at 4.0 right now. If it’s not going to be updated, there may be a breaking point where it’s not useful anymore.
We’re still fighting an uphill battle. But you can see the enthusiasm growing everywhere.
What makes me optimistic is that you see the community growing, and also communities coming together. The amount of people involved in Wikimedia projects that are involved in the Creative Commons community, for example, is increasing. That’s a good thing because we share goals, so working together is extremely valuable.
Supporting the Commons for me is something I can’t stop doing, because it’s so close to my personal beliefs, and so close to what I think can better our world. I’m happy to be alive in the period we’re living right now. Twenty years ago I probably wouldn’t have been able to do the things I’m doing right now.
I’m happy to be part of this movement. It gives you energy, a more positive view of the future, and my own personal future. So contributing to the Commons is something that really makes me happy.
Recent U.S. Legal Decision Reinforces Strength of CC Licenses
Recently, the U.S. Court of Appeals for the 2nd Circuit ruled that a commercial copyshop may reproduce educational materials at the request of a school district that is using them under a CC BY-NC-SA license. The decision aligns squarely with the arguments made by Creative Commons in an amicus brief submitted to the court. Although the court denied our request to admit the amicus brief, the brief remains publicly on file with the Second Circuit.
The Litigation
The case involved open educational resources (OER) used by schools for non commercial purposes. The school districts asked FedEx Office to reproduce the materials for use in their classrooms. The OER in question were created by Great Minds using public funds and licensed by Great Minds under CC BY-NC-SA 4.0. Great Minds claimed that the school districts were not allowed to engage FedEx Office to reproduce the materials, and that because FedEx Office made profit while producing the requested copies, they were violating the license. Importantly, Great Minds never alleged that the school districts’ use of the reproduced materials violated the NonCommercial restriction of the license. The central question in the case was whether a licensee – a school district – that is properly using the work for non commercial purposes may outsource the reproduction of the works to another who makes a profit doing so.
In granting FedEx Office’s motion to dismiss, the lower court ruled that under U.S. law, a licensee (here a school district) is permitted to use a third party to exercise rights it has under a CC license, just as with other licenses. It relied on U.S. case law that allows a licensee to use third parties where the license does not expressly prohibit it. The district court noted that the CC license specifically allows licensees to share the licensed content “by any means or process . . . such as reproduction . . . .” thereby giving “licensees broad latitude in exercising their licensed right to reproduce the [M]aterials for non-commercial use.”
“In sum, the unambiguous terms of License permit FedEx to copy the Materials on behalf of a school district exercising rights under the License and charge that district for that copying at a rate more than FedEx’s cost, in the absence of any claim that the school district is using the Materials for other than a ‘non-Commercial purpose.’ The motion to dismiss is granted.”
Great Minds appealed the decision to the U.S. Court of Appeals for the Second Circuit. Creative Commons filed a request to submit an amicus brief to provide guidance to the court on the proper interpretation of the BY-NC-SA 4.0 license. Our request was denied.
Last week, the Second Circuit agreed with the decision of the district court and found Great Minds’ argument that FedEx required a separate license in order to reproduce the works at the school districts’ request “unpersuasive.”
“Under Great Minds’ reading of the [CC] License, each teacher and administrator who handles the Material is a “downstream recipient” who acts as an independent licensee, even if their use of the Materials is compelled by the terms of their employment. If a license were intended to achieve such a radical result, we would expect a clear statement in the license to that effect….[it] contains no such statement.”
Further, the court agreed with the lower court that the “unambiguous import” of the provision allowing a licensor to collect royalties for all commercial uses does not apply because FedEx Office’s services did not exceed the scope of the license granted to the school districts.
We stand behind the legal rationale of both courts. The decisions are consistent with the intention of the licenses as we wrote them and how they are used day-to-day by millions of creators and re-users. Based on the facts and circumstances as presented by Great Minds, CC sees no difference between an employee of a school district hitting PRINT at a FedEx Office store, and that of a FedEx Office employee doing so when hired by the school district to do so on their behalf and at their direction.
Why File a ‘Friend of the Court’ Brief?
One of our most critical roles as a responsible public license steward is weighing in on cases when necessary and actively providing guidance and education about our licenses. Fortunately, in the 16 years since our licenses were first published, the number of lawsuits turning on the interpretation of a CC license has been extremely low, especially considering that more than 1.3 billion CC-licensed works are available on the internet and have been reused by many more. CC licenses have fared incredibly well in court, and disputes are rare when compared to the number of lawsuits between parties to privately negotiated, custom licenses.
As we consider weighing in on disputes with commentary or the filing of an amicus brief, we cannot emphasize enough that CC is always acting as an advocate for the licenses and their proper interpretation, never in favor or against a particular litigant. Our goal when we do speak out is to educate the courts and the public about how our licenses work, and to ensure as much as possible that legal decisions interpret the licenses correctly. Sometimes facts play a role in the decision, but fact-finding is not CC’s role. Our interest is making sure that whatever the facts find, the licenses are interpreted correctly in relation to them.
What’s next?
We will continue to track this and other litigation and disputes, including a similar case pending before the U.S. Court of Appeals for the Ninth Circuit brought by Great Minds against Office Depot that remains pending. As steward, we will constantly monitor these important developments with an eye toward usability of our licenses and the proper alignment of creator and re-user expectations.
