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Financial Times

Press Robot, March 17th, 2003

Why copyright need not be an issue” by Richard Poynder

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Franz Liszt, Mixmaster, and J.S. Bach, Klepto

Glenn Otis Brown, March 16th, 2003

“Time was when the art of arrangement” — the creative reinterpretation of songs — “occupied an honored place in musical composition.”

“Bach, Mozart, Liszt and Ravel,” writes Liszt biographer Alan Walker in the New York Times, “were among the many composers who lavished their talents on this important activity, fitting out their own works or those of others for different forces, usually larger or smaller.”

Walker’s article is an elegant reminder that rip-mix-burn art long preceded the Net, transcends pop culture, and reflects good taste as well as sound policy. Best of all is how Walker (unwittingly?) echoes a Jeffersonian wisdom about creative “property.”

Here are a few of the more striking passages (though you really should read the whole piece, even if, like me, you’re largely ignorant of classical music):

. . . The most familiar criticism of arrangements is that they harm the originals. An analogy is sometimes drawn with painting. If you put a mustache on the “Mona Lisa,” it is argued, a masterpiece has been destroyed. Likewise with music. Tamper with the original, and something has been lost forever. But this analogy is surely false. If you deface a canvas, something has indeed been destroyed. But a musical arrangement destroys nothing; it merely creates an alternative. The original is still there, unharmed, waiting to be played. . . .

. . . So complete was Liszt’s mastery of the art of transferring music from one medium to another that his arrangements have often eclipsed the models that gave them life. Consider his piano arrangements of six of Chopin’s “Polish Songs,” especially “The Maiden’s Wish” and “My Joys,” which are still in the standard repertory. Liszt elevates these pieces to a new level and makes them sound as if they were born on the keyboard. In fact, they have made their way around the world as piano pieces, while Chopin’s songs are known and appreciated only by aficionados. This is more than transcription: it is translation. . . .

. . . But what of the moral argument? Isn’t a composer’s music his or her personal property? And isn’t it a form of theft to appropriate it? If that were the case, many of the greatest composers in history would be guilty of grand larceny. And as for those artful dodgers Bach and Handel, we would have to dismiss them as musical kleptomaniacs. They and others never took the slightest interest in the “moral” point of view. Music, for them, was there to be recycled, time and again if necessary. For the rest, since all good arrangers put in more than they take out, and since nothing is destroyed, the whole of music benefits. What kind of kleptomaniac gives more than he takes? . . .

. . . In an arrangement, music talks about music; music communicates with music; the language turns in on itself and, in the greatest examples, produces a critical commentary on the original, a closed world par excellence. What a wonderful phenomenon that is. . . .

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Blog Comments Enabled

Glenn Otis Brown, March 15th, 2003

Our weblog now takes comments. So if you’ve got feedback about the several potential license innovations we debuted this week — a sampling option, an educational use option, a link-back requirement, and a safe harbor for commercial search engines — please post your thoughts and let public discussion begin.


Indexterity (Innovation 2b)

Glenn Otis Brown, March 15th, 2003

This is the fourth in a series of posts calling for comment on potential innovations to our licenses. This post deal with a potential enhancement to the language of our current “noncommercial use” option.

Indexterity (Innovation 2b)

Our noncommercial language currently includes an explicit safe harbor for file-sharing (which, under U.S. law, is considered to be a commercial use even if no money changes hands):

The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

We’ve considered adding a similar carve-out for commercial search engines, which, though now operating perfectly legally, might enjoy the extra reassurance that aggregating content licensed as “noncommercial” will not amount to commercial use.

The indexing of copyrighted works by means of search engine or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in direct exchange for the indexing of the copyrighted works.

Is such a provision helpful? Necessary? How might we improve upon it?


The Missing Link? (Innovation 2a)

Glenn Otis Brown, March 14th, 2003

This is the third in a series of blog postings dedicated to inviting comment on possible innovations to our licenses. Posts 1a and 1b dealt with potential new license options. This post and the one to follow deal with potential refinements of our existing license texts.

The Missing Link? (Innovation 2a)

Several people have written in suggesting that we include a link-back requirement as part of the Attribution condition. We chose not to do so in our first set of licenses because we thought it would be a somewhat onerous requirement for licensees, who after all shouldn’t be held responsible for the occasional broken link or altered URL. After hearing your input, we played with some language requiring licensees, “to the extent practicable,” to link back to the copyrightholder’s site. Some of you, however, wisely noted that this may give licensees a bit too much leeway. So we’re now thinking about the language below as a possible addition to the Attribution provision:

“If the [licensed] Work appears on a Web site, You [licensee] must accompany the work with a hyperlink to the Uniform Resource Identifier specified by licensor, assuming that Uniform Resource Identifier remains accessible.”

Do you think such a requirement would significantly improve the Attribution condition? If so, how might we improve upon this language? Should the link-back requirement be its own option, or simply part of the Attribution option?

18 Comments » (Innovation 1b)

Glenn Otis Brown, March 12th, 2003

This is the second of several postings describing potential innovations to our licenses. It comes courtesy of Rob Hallman, a Stanford Law School student in the “Advanced Contracts: Creative Commons” seminar.

You have the power to make learning fun. At least partly. Promoting education is a personal goal and a corporate mission for many copyright holders. If you have creative work that you’d like to share with students and educators, but you don’t want people to use it for other purposes, an “educational purposes” license option may be just your size. “Educational purposes” gives the green light to any use of a work in a classroom setting.
There are all sorts of classrooms (including virtual), and we’d like to include them all, as long as they’re run by a legitimate educational institution, commercial or not.

But what about fair use? We don’t imagine that this “educational purposes” provision would replace or compete with fair use. Instead, this provision is designed to allow copyright holders to share even more usage rights with students and educators than fair use allows. We want students and educators to feel confident that their use is legal and happy that the artist or owner is a willing accomplice in the learning process.

Educational Purposes. The licensor permits students or educators to copy, distribute, display, and perform the Work in whole or in part for educational purposes as defined in this section.

Educational purposes include classroom use affiliated with an educational institution, research or other projects developed and displayed exclusively for classroom use, or for the review of instructor(s), or degree-conferring committees, where:

Educational institutions include individuals, corporations or trusts, commercial or noncommercial, whose primary purpose is educational, and whose educational purpose is demonstrable through governmental recognition or through comportment consistent with a customary understanding of educational purpose among practitioners in the field.

Classrooms include the traditional classroom setting as well as other recognized forums for instruction or coursework that are administered by an educational institution. On-line and other nontraditional “classrooms” will be considered classrooms for the purposes of this definition where they are the forum for a legitimate course, seminar, or instructional program administered by an educational institution.

Students are a distinct, limited community currently participating with the permission of an educational institution in a course, seminar, or other program with an educational purpose offered by that institution. Student status is coextensive with the duration of the course, seminar, or program.

Educators are full-time or part-time/adjunct faculty, administration or staff of an educational institution.

Can this be simpler? Should it be broader? Narrower? Tell us why you’d use it or why you wouldn’t.


Mmm . . . Free Samples (Innovation 1a)

Glenn Otis Brown, March 11th, 2003

This post is the first in a series that will roll out, over the course of this week, potential innovations to our licenses for your review and comment.

Mmm . . . Free Samples

Right now, our menu of license options lets authors choose between prohibiting or encouraging a) commercial re-uses of their work, and b) transformations of their work.

It does not, however, let an author choose c) to encourage commercial transformations of their work while d) prohibiting commercial verbatim copying of their work.

That is, if you like the idea of people making a remix of your song, or re-cutting your film, but you don’t want them simply to sell whole, unaltered copies of your work, our licenses today may not perfectly fit your needs.

The “noncommercial” provision is a blanket restriction, treating all commercial uses — no matter how innovative — the same.

Creative Commons could do better, say Negativland, People Like Us, Wayne Marshall, and other artists at the forefront of the booming digital collage culture.

Many folks like the idea of inviting others to build on their work; and they really like the notion of a copyright regime that would recognize and honor that practice. (Of course, copyright today doesn’t.)

Don Joyce of legendary culture jammers Negativland nailed both of these concepts in an early conversation with us on the subject:

“This would be legally acknowledging the now obvious state of modern audio/visual creativity in which quoting, sampling, direct referencing, copying, and collaging have become a major part of modern inspiration. [A sampling option would] stop legally suppressing it and start culturally encouraging it — because it’s here to stay. That’s our idea for encouraging a more democratic media for all of us, from corporations to the individual.”

In this spirit of democratic media and collaboration, we offer this draft provision for your comment and improvement. You are all Kings and Queens of Copyright: What would proper “sampling” and “collaging” look like in your world? How might you build on or re-mix our formulation below?

You may not exercise any of the rights granted to You in this license in any manner (except as described immediately below) that is primarily intended for or directed toward commercial advantage or private monetary compensation.

You may exercise the right to create and reproduce Derivative Works in a manner primarily intended for or directed toward commercial advantage or private monetary compensation — provided that the Derivative Work(s) constitute a good-faith “sampling,” “collage,” and/or “mash-up,” as appropriate to the medium, genre, and market niche.

Now, we anticipate that the phrase “as appropriate to the medium, genre, and market niche” might prompt some anxiety, as it leaves things relatively undefined. But there’s more method here than you might expect: The definition of “sampling” or “collage” varies across different media. Rather than try to define all possible scenarios (including ones that haven’t happened yet) — which would have the effect of restricting the types of re-uses to a limited set — we took the more laissez faire approach.

This sort of deference to community values — think of it as “punting to culture” — is very common in everyday business and contract law. The idea is that when lawyers have trouble defining the specialized terms of certain subcultures, they should get out of the way and let those subcultures work them out. It’s probably not a surprise Creative Commons likes this sort of notion a lot.


Filmmaker Davis Guggenheim Joins Creative Commons Board of Directors

Glenn Otis Brown, March 11th, 2003

We’re very excited to announce that Davis Guggenheim, a celebrated director and producer of both documentary and dramatic film and television, has joined our Board of Directors. Davis brings to our team the invaluable perspective of a creator with both extensive commercial experience and a commitment to public policy.

In 1999, Davis undertook an ambitious project documenting the challenging first year of several novice public school teachers. Two films resulted from this intensive immersion in the Los Angeles public school system: The First Year and Teach. Both films sought to address the tremendous need for qualified teachers in California and nationwide and to create awareness of this crisis — as well as to inspire a new generation to become teachers. In 2002, Davis received a Peabody Award for The First Year.

Davis was an Executive Producer on Training Day and directed a feature film called Gossip, both for Warner Bros. His television directing credits include recently completed episodes of “The Shield,” “Alias,” and “24” as well as such critically acclaimed programs as “NYPD Blue,” “ER,” and “Party of Five.” He is currently a Producer and Director of the upcoming HBO series “Deadwood.”

Guggenheim’s other documentary films include Norton Simon: A Man and His Art, produced for permanent exhibition at the Norton Simon Museum, and JFK and the Imprisoned Child, produced for permanent exhibition at the John F. Kennedy Library. Guggenheim wrote and edited many films with his father, four-time Academy Award winner Charles Guggenheim. Davis graduated from Brown University in 1986.

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Glenn Otis Brown, March 10th, 2003

This week we’ll roll out several potential innovations to our licenses, then call for your comments. First, we’ll post some proposed text for two new kinds of license options: “sampling” and “educational use.” Second, we’ll float some draft language that we’ve considered adding to our licenses as enhancements: an explicit safe harbor for search engines under our “noncommercial” condition; a clear distinction between privacy-enhancing encryption tools and over-reaching digital rights management; and a potential link requirement as an addition to our “attribution” provision.

We plan to post around one draft provision a day this week; by the end of the week, we’ll have upgraded our blog so that you can share comments with other readers. Please weigh in: Let us know if you think the proposed enhancements and options are worth it, and if so, how we might improve the specific language of each.

Note: We’re not changing or versioning the licenses — not yet, anyway. We hope through this process simply to vet publicly issues that a few of you have raised via email, and to explore how Creative Commons and our adopters might best work together as our project grows. After a healthy comment period, we’ll take stock and move on from there.

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Creative Commons at SXSW

Matt Haughey, March 9th, 2003

Today, Creative Commons metadata advisor Aaron Swartz joined blogger and author Cory Doctorow, programmer Brandon Wiley, Rice University‘s Chris Kelty, and Executive Director Glenn Otis Brown to talk about the Creative Commons at a panel discussion at the South By Southwest (SXSW) interactive conference. The panel covered issues surrounding the project, how people have used our licenses, and what comes next.

This afternoon, Creative Commons chairman and co-founder Lawrence Lessig will deliver a much-anticipated keynote.

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