Introduction to Creative Commons

Copyright and Open Content Licensing: the role of the Creative Commons licencesProfessor Anne FitzgeraldQueensland University of Technology

Creative Commons and the Digital Economy Seminar 1 of 45 October 20121This session CopyrightWhat Creative Commons (CC) isOverview of how CC is being used2CopyrightGoverned by the Copyright Act (Cth)No registration required Copyright exists automatically once criteria in the Act are satisfiedCopyright protects original expression Not ideas, information or factsBut the form in which those ideas, information or facts are expressed3

Blogs, books, articles, essays(literary works, published editions of works)

Generic 2.0 _MG_0318 by Zitona, http://www.flickr.com/photos/zitona/5021203226/4

Generic 2.0 take the old machine by Angelo Gonzlez, http://www.flickr.com/photos/21251150@N04/5291456294Photographs, paintings, images, sculptures(artistic works)5

Generic 2.0I Giovani e la Musica by Super UbO, http://www.flickr.com/photos/14443853@N07/5362778675 Music, sound recordings, radio broadcasts6

Generic 2.0 Apollo 11 Video Restoration Press Conference / Newseum by NASA Goddard Space Flight Centre, http://www.flickr.com/photos/24662369@N07/3726614425Films, Videos, Theatre, TV broadcasts(cinematograph films, dramatical works, television broadcasts)7Copyright as a bundle of exclusive rightsFor example, for literary, dramatic and musical works the rights are to:reproduce in material formpublishpublicly performcommunicate to the public in electronic form transmit;make available make an adaptation or translationcontrol rental, where work is a computer program or is reproduced in a sound recording: s 31(1)8Copyright in the digital environmentBroad scope of copyright law extended in the digital environmentBroader range of materials subject to copyright (eg computer programs)Broader rights (eg right to communicate electronically to the public)When we use digital technology, we automatically reproduce content and thereby enter the copyright zone, because digital technology needs to reproduce material so it can be played, run or even viewed. Copyright has been further extended to protectTechnological Protection Measures (TPMs) (eg encryption/anti-copying devices) applied to control access or copying; Electronic Rights Management Information (ERMI)

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Generic 2.0 That time of year again by Etwood, http://flickr.com/photos/etwood/231364920legal advice (s43)research or study (s40)criticism or review (s41)parody or satire (s41A)reporting of news (s42)Fair dealingUnless the law provides otherwise10But is the dealing fair?"(i) Fair dealing involves questions of degree and impression; it is to be judged by the criterion of a fair minded and honest person, and is an abstract concept; (ii) Fairness is to be judged objectively in relation to the relevant purpose, that is to say, the purpose of criticism or review or the purpose of reporting news; in short, it must be fair and genuine for the relevant purpose TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002] FCAFC 146 (22 May 2002), [98] per Hely J

11CopyrightIn a nutshell copyright automatically applies to a lot of material exclusive rights of the copyright owner are very broad remedies are strong and enforcement is effective (through civil and criminal actions) limited exceptions are availableWhich means that.....the consequences of infringement will deter use/reuse unless it is clear that the use is permitted

12CopyrightGeneral rule = You need permission/licence to exercise exclusive economic rights of copyright owner unless the law provides otherwiseexpress permission to use should be obtained importance of clear statement of permitted usesany other rights/obligations (other than copyright) also need to be considered

13all rights reserved14Creative Commons

15What is Creative Commons?a standardised system for licensing the use of copyright materialsa suite of 6 standardised licences available in 3 forms: plain english (summary); legal code and machine-readable code Each licence grants baseline permissions to users to use copyright material that is, to copy, publish, distribute in digital form, publicly performwhether the whole or a substantial part of it on specified, standardised core conditions

16Creative Commons IS NOTanti-copyright

Creative Commons ISA copyright licence (permission)Cannot exist without copyrightA new way of managing copyrightFree for everyone to use 17Copyright licensing traditional practiceAll (or most) rights reservedRequires prior permission from copyright owner unless within an exception to owners rights (e.g. fair dealing) under the Copyright ActNegotiating terms is cumbersome, time consuming, expensive inefficiency means high transaction costsHas led to multiple non-standard licences Problem of orphan works no identifiable copyright owner from whom permission may be obtained Arose from pre-internet era - not geared to the immediate and global nature of the internet 18Copyright licensing with CC licences Some rights only reservedRelatively short, simplified, standardised licences which provide permission in advanceDo not contain detailed provisions covering all relevant aspects of the law Must be read in the context of copyright law (legislation & judgments) and often other relevant bodies of law (e.g. private international law jurisdictional issues and applicable law)Also have to be read in context of other relevant information laws notably privacy (data protection), security, and interception of communications (telecommunications) - See Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)

19CC is a copyright-based system of licences or permissionsCopyright law gives copyright owners the rights to authorise others to use their materials permission to do specific actsAuthorisation or permission is granted in licencesNon-exclusive licences can generally be written or unwritten, explicit or implied from the circumstances Some permissions have been generalised and codified as exceptions in the Copyright Act e.g. fair dealingNot yet possible to codify the permissions for many kinds of uses of copyright material particularly the case for public sector materialsThe CC licences provide a simple way of granting permission to use copyright materials, to overcome uncertainty but do not cover all possible kinds of permissions other kinds of permissions will have to be negotiated20CC licences are based on copyright Preamble: THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENCE ("LICENCE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW.Definitions"Work" means the material (including any work or other subject matter) protected by copyright which is offered under the terms of this Licence. This may include (without limitation) a literary, dramatic, musical or artistic work; a sound recording or cinematograph film; a published edition of a literary, dramatic, musical or artistic work; or a television or sound broadcast

Includes:Copyright economic rights Performers ownership rights in recordings

Moral rights remain unaffected to the extent they are recognised and nonwaivable at law.

21Rethinking the CommonsPublic domain traditionally referred to materials not subject to copyright protection because copyright had expired; orthe materials did not quality for copyright protection.Concept of public domain has been recast more broadly to mean open knowledge and contentinsisting on no rights constrains thinking about public domainpublic domain is not just a no rights wasteland [or] dump on the outskirts of respectable culture (Bollier, Viral Spiral)something of value in its own right open knowledge and content that can be accessed, reused and distributedencompasses materials that are copyright-protected and made available for access and reuse under open source software and open content licences

22Free and Open Source software/open content concepts Openness (access/use/reuse) has to be structured / constructed - it does not happen by default - requires copyright and other interests to be actively managed to ensure the desired level of openness is achieved

For intangibles / digital materials, law provides the means of structuring openness

Creative Commons draws on Richard Stallmans insights into how copyright can be used to ensure that freely distributed software source code remains open to other software coders (FOSS, GNU GPL); David Wileys thinking around Open Content; and Elinor Ostroms work on regulation of commons

Absence of legal rights means just that (nothing) if legal rights do not exist, the only control is through lock up (secrecy) or lock down (technological locks) counterproductive to achieving openness

23Licence combinations

24Baseline permissionsFundamental baseline rights granted by all CC licences:ReproduceDistributePublicly perform

Additional baseline permission granted in four of the six CC licences to create derivative works and ReproduceDistributePublicly perform the derivative work25CC Core Conditions of use Attribution (BY) attribute the author, and no false attribution [Mandatory]

Non Commercial (NC) no commercial use (as defined)No Derivatives (ND) no changes allowed to original workShare Alike (SA) changes allowed, but new work is to be distributed under the same licence as the original work

* ND and SA cannot be used together

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Human-readable summary27

Legal Code28

http://creativecommons.org/choose/Machine-readable code29CC operates as a direct licence, from copyright owner to user

30Attribution (BY)

31Attribution (BY)Copyright notice - Keep notices that refer to the Licence or DisclaimersName of author and other Attribution partiesSource and Title of the workLicence URL/hyperlinkIn a Derivative Work, identify the changes made to the original No suggestion of endorsementIn a manner reasonable to the medium you are using

32Attribution (BY)

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http://creativecommons.org/choose/34

http://www.flickr.com/photos/rednuht/275062341/35

Non Commercial (NC)36Non Commercial (NC)Commercial defined as meaning primarily intended for or directed towards commercial advantage or private monetary compensation

37Meaning of Non Commercial CC has released guidelines and done a study on the meaning of this term. there are some clear cases of what is non-commercial (private and domestic) use some clear cases of commercial use (corporations using the material to generate revenue) See: Defining Noncommercial: A Study of How the Online Population Understands Noncommercial Use, http://wiki.creativecommons.org/Defining_Noncommercial

38Adam Curry v Audax (2006)Curry uploaded photos to Flickr under a CC BY NC SA licenceThe photos from Flickr were reproduced in a magazine sold commercially in The NetherlandsCourt held there was no permission to use the photos - as this was commercial use only Non Commercial was licensed

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No Derivative Works (ND)40No Derivative Works (ND)Derivative Work" means material in any form that is created by editing, modifying or adapting the Work, a substantial part of the Work, or the Work and other pre-existing works.

41No Derivative Works (ND)Derivative Works may include a translation, adaptation, musical arrangement, dramatisation, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be transformed or adaptedexcept that a Collection will not be considered a Derivative Work for the purpose of this Licence.

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Share Alike (SA)43Share Alike (SA)Clause 4B(a) Attribution-Share Alike 3.0 Australia: You may only Distribute or publicly perform a Derivative Work if You apply one of the following licences to it:i) this Licence;ii) a later version of this Licence with the same Licence Elements (such as Attribution-ShareAlike 4.0 Australia); or iii) a Creative Commons Unported licence or a licence from another jurisdiction (either this or a later version) that has the same Licence Elements; or iv) a Creative Commons Compatible Licence. (* note this last option is not available in CC BY NC SA 3.0 Australia)

44How do people use CC?Licensing out: use CC on copyright materials you create enable others to find your material online through using the standard search engines; give permission to others to lawfully use your material (eg copy, on-distribute, post to a website, value add, mashupe.g. Repositories Wikipedia, Flickr, YouTubeInstitutions/Organisations ABC, Al Jazeera

Licensing in: use copyright materials created by others that are licensed under CC enable you to find their material online through using the standard search engines; give permission to you to lawfully use their material eg copy, on-distribute, post to a website, value add, mashup e.g. use of CC licensing scream in Children of Men (a Hollywood film) students using CC material in their projects

In both cases, the scope of re-use will depend on which CC licence selected

45CC BY SAMost of Wikipedia's text and many of its images are dual-licensed under the Creative Commons Attribution-Sharealike 3.0 Unported License (CC-BY-SA) and the GNU Free Documentation License (GFDL)

The small print: Text is available under the Creative Commons Attribution-Share Alike License; additional terms may apply. See Terms of Use for details ....

Information for text contributors to Wikimedia projects To grow the commons of free knowledge and free culture, all users contributing to Wikimedia projects are required to grant broad permissions to the general public to re-distribute and re-use their contributions freely, as long as the use is attributed and the same freedom to re-use and re-distribute applies to any derivative works. Therefore, for any text you hold the copyright to, by submitting it, you agree to license it under the Creative Commons Attribution-ShareAlike 3.0 Unported License. For compatibility reasons, you are also required to license it under the GNU Free Documentation License. Re-users can choose the license(s) they wish to comply with. Please note that these licenses do allow commercial uses of your contributions, as long as such uses are compliant with the terms.

As an author, you agree to be attributed in any of the following fashions: a) through a hyperlink (where possible) or URL to the article or articles you contributed to, b) through a hyperlink (where possible) or URL to an alternative, stable online copy which is freely accessible, which conforms with the license, and which provides credit to the authors in a manner equivalent to the credit given on this website, or c) through a list of all authors. (Any list of authors may be filtered to exclude very small or irrelevant contributions.)

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48Trade Adjustment Assistance Community College and Career Training Grant Program (TAACCCT): US $2 billion in funding provided under federal education fund to create OER resources for use in communitycolleges

P062311PS-0339 by The White House (US Government Work) http://www.flickr.com/photos/whitehouse/5937200216See http://www.dol.gov/opa/media/press/eta/eta20101436.htm and http://creativecommons.org/weblog/entry/26100

49AUSTRALIA

50AUSTRALIA

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2010 Federal BudgetPapers licensed under CC Attribution 2.5Australia2011 and 2012 Federal Budget Papers under CC Attribution 3.0 Australia

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56In 2009 the Al Jazeera Network launched a repository of broadcast quality footage under a variety of CC licencesInitial focus was on footage of the conflict in Gaza, which was released under a CC BY licence. The aim of allowing the broadest possible reuse (including commercial use) was to make people more aware of these issues as well as profiling the Al Jazeera Network throughout the world.See Al Jazeera CC Repository at http://cc.aljazeera.net/

Al Jazeera Announces Launch of Free Footage Under Creative CommonsLicense. Accessed 8 July 2010. Available from: http://creativecommons.org/press-releases/entry/12166

57ABC 80 Days that Changed our Lives To celebrate ABCs 80th anniversary , ABC released 22 files capturing historic moments on Wikimedia under CC BY-SAfirst collection of broadcast packaged footage released to Wikimedia Commons under a free license

http://commons.wikimedia.org/wiki/Category:Files_from_the_Australian_Broadcasting_Corporation

58http://en.wikipedia.org/wiki/History_of_the_Internet

59May 2012 3 months on http://toolserver.org/~magnus/baglama.php?group=Files+from+the+Australian+Broadcasting+Corporation&date=201205

60Wikimedia What is Wikimedia Commons?

Wikimedia Commons is a media file repository making available public domain and freely-licensed educational media content (images, sound and video clips) to everyone, in their own language. It acts as a common repository for the various projects of the Wikimedia Foundation, Launched on 7 September 2004, Wikimedia Commons hit the 1,000,000 uploaded media file milestone on 30 November 2006 and currently contains 13,546,116 files and 106,660 media collections.

Unlike traditional media repositories, Wikimedia Commons is free. Everyone is allowed to copy, use and modify any files here freely as long as they follow the terms specified by the author; this often means crediting the source and author(s) appropriately and releasing copies/improvements under the same freedom to others. The license conditions of each individual media file can be found on their description page. The Wikimedia Commons database itself and the texts in it are licensed under the Creative Commons Attribution/Share-Alike License. More information on re-use can be found at Commons:Reusing content outside Wikimedia and Commons:First steps/Reuse.http://commons.wikimedia.org/wiki/Commons:Welcome

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Legal Validity of LicencesJacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)

Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. . The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar denominated fee, is entitled to no less legal recognition.The District Court interpreted the Artistic License to permit a user to modify the material in any way and did not find that any of the provided that limitations in the Artistic License served to limit this grant. The District Courts interpretation of the conditions of the Artistic License does not credit the explicit restrictions in the license that govern a downloaders right to modify and distribute the copyrighted work. The copyright holder here expressly stated the terms upon which the right to modify and distribute the material depended and invited direct contact if a downloader wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the objectives of the open source licensing collaboration, including economic benefit. Moreover, the District Court did not address the other restrictions of the license, such as the requirement that all modification from the original be clearly shown with a new name and a separate page for any such modification that shows how it differs from the original. Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir.1976), the unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.

62Why use CC licences?Other standardised licences e.g. UK Open Government Licence (OGL) are not fully internationally recognisedPermits international platforms (collaborations and contributions across various sectors) No other standardised licence has an equally supportive and viable central organisation CC applies to all government and non-government copyright material (except software)CC uses icons (which have gained full international recognition and which are not language specific) CCs licence metadata / digital code is embedded, making it machine-readable, searchable & retrievable CC provides for a clear statement about the source of the data (attribution/provenance) increased user confidence

63CC AustraliaMore information at www.creativecommons.org.auTwitter: @ccAustralia Facebook: http://www.facebook.com/ccAustralia

Professor Anne FitzgeraldPublications: http://eprints.qut.edu.au/view/person/Fitzgerald,_Anne.html Twitter: @AnneMFitzgerald

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