The Idea

Lawrence Lessig has long been an outspoken critic of the current copyright system. He feel that it stifles dialogue by closing off works that should be readily available for people to interact with. In this current, digital era, this is more true than ever before. The tools available and our ability to access, interact with and “mashup” content is unprecedented–before, changing a picture or creating a mashup collage was easy enough, but then capturing in a distributable format, without loss of quality, was difficult. And doing a re-edit of a film you liked using analog tools… forget about it. Waaay too cumbersome to be bothered with.

But today, we have a growing culture of accessibility. It’s easy to get stuff, to run it through a few programs that will unlock it (if necessary) and then re-edit and create works that are partly derivative and partly novel. Exciting times. Except that the older culture, the one that got good at using the old tools and the old forms, and built up a body of work and an expected revenue stream from that body of work, in the old system–well, they’re not happy. And they’re the ones with the money and with the most to lose (they’re not evil–I make no such claim. But they do have interests to protect, and the easiest way to protect them is to lobby for ways to reinforce the old ways, rather than taking risks, going out on a limb and formulating a new model that may or may not work within the new system).

Copyright was one of the targets of such agitation. Copyright, whose term kept getting extended. Copyright, which protects the rights holders (it’s important to bear in mind that these aren’t necessarily the creators. When you “sell” your novel to a publisher, you’re still the holder of the copyright, but you’re actually assigning some sub-set of those rights to the publisher. Usually this will include the right to reproduce the text in its entirety, plus some other related rights. At which point the publisher becomes the rights holder for those particular rights, for whatever time period you’ve agreed upon. In return, the publisher has taken a risk, and paid you money up front. They want to make sure that their risk pays of, and this means protecting their investment).

And so, we ended up with far-reaching–Lessig argues that they’re overreaching–rights. As part of an initiative to inspire (c) reform, Lessig and a few others came up with the idea of the Creative Commons licenses (cc). With a few clicks, creators could select from a variety of options, a license that released different rights to their works (e.g. the right to copy/reproduce them, which is the one that publishers most frequently seek to purchase) to the world at large. I have the impression that the intention was to give people a taste of the freedom and the openness of discourse that such freedom inspired.

And it did. It’s a totally wonderful and brilliant idea.

The Paradox

I’m using the word “paradox” loosely, here, but Alanis Morisette long ago soured the use of the word “ironic” for me. Regardless, the funny thing here is that these wonderful (cc) licenses, that inspire discourse, collaboration, multi-generational creations and derivative works and all sorts of other wonderful things, relies on (c) law as it stands. Copyright law is what allows the users of the licenses to just release one or two of their rights, while retaining the rest. So someone who puts out a book under an attribution, non-commercial, no derivatives license (i.e. they’re basically saying, you can copy this book all you want, but you can’t sell it, you have to give me credit for creating it, and you can’t use the story or the text or the characters to create a derivative work, like a movie, a cartoon or anything else) still has legal recourse, if they find out that their novel has been made into a movie without their permission.

This is great. So what’s the problem? In a nutshell: when you change the law, there are often a number of repercussions that are totally unanticipated. And so, if you change (c) law, some or all of the licenses might no longer hold, legally speaking.

There is now a large swathe of creators who have used the (cc) licenses and relied on the fact that all but the rights they’ve chosen to release are still protected. And so, you have a growing number of people who have wonderful, idealistic ideas about the free flow of ideas, but who want to retain some aspects of their rights–and who are therefore invested in keeping (c) just as it is.

Fascinating.

n.b.: this isn’t to say that you shouldn’t use (cc) or it’s a bad thing. I think the licenses are brilliant. If they suit your needs, you should definitely look into them and consider using one or another of them. I find the (cc) movement in general exciting, inspiring and wonderfully creative.

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