Copyright and Open Content Licensing: the role of the Creative Commons licences


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"Copyright and Open Content Licensing: the role of the Creative Commons licences", presented by Professor Anne Fitzgerald as seminar 1 of 4 in the Creative Commons and the Digital Economy series, 2012. For full details see event page at

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  • ‘Al Jazeera Announces Launch of Free Footage Under Creative Commons License’. Accessed 8 July 2010. Available from:
  • “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 Court’s interpretation of the conditions of the Artistic License does not credit the explicit restrictions in the license that govern a downloader’s 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.”
  • Copyright and Open Content Licensing: the role of the Creative Commons licences

    1. 1. Professor Anne Fitzgerald Queensland University of TechnologyCreative Commons and the Digital Economy Seminar 1 of 4 5 October 2012
    2. 2. This session …  Copyright  What Creative Commons (CC) is  Overview of how CC is being used
    3. 3. Copyright Governed by the Copyright Act (Cth) No registration required Copyright exists automatically once criteria in the Act are satisfied Copyright protects original expression  Not ideas, information or facts  But the form in which those ideas, information or facts are expressed
    4. 4. Blogs, books, articles, essays… (literary works, published editions of works)Generic 2.0 ‘_MG_0318’ by Zitona,
    5. 5. Photographs, paintings, images, sculptures… (artistic works)Generic 2.0 ‘take the old machine’ by Angelo González,
    6. 6. Music, sound recordings, radio broadcasts…Generic 2.0 ‘I Giovani e la Musica’ by Super UbO,
    7. 7. Films, Videos, Theatre, TV broadcasts… (cinematograph films, dramatical works, television broadcasts)Generic 2.0 ‘Apollo 11 Video Restoration Press Conference / Newseum’ by NASA Goddard Space Flight Centre,
    8. 8. Copyright as a bundle ofexclusive rights For example, for literary, dramatic and musical works the rights are to:  reproduce in material form  publish  publicly perform  communicate to the public in electronic form  transmit;  make available  make an adaptation or translation  control rental, where work is a computer program or is reproduced in a sound recording: s 31(1)
    9. 9. Copyright in the digitalenvironment Broad scope of copyright law extended in the digital environment  Broader 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 protect  Technological Protection Measures (TPMs) (eg encryption/anti-copying devices) applied to control access or copying;  Electronic Rights Management Information (ERMI)
    10. 10. Unless the law provides otherwise… Fair dealingresearch or study (s40)criticism or review (s41)parody or satire (s41A) reporting of news (s42) legal advice (s43) Generic 2.0 That time of year again… by Etwood,
    11. 11. But 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
    12. 12. CopyrightIn 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
    13. 13. Copyright General rule = You need permission/licence to exercise exclusive economic rights of copyright owner unless the law provides otherwise express permission to use should be obtained  importance of clear statement of permitted uses  any other rights/obligations (other than copyright) also need to be considered
    14. 14. ©all rights reserved
    15. 15. Creative Commons
    16. 16. What is Creative Commons? a standardised system for licensing the use of copyright materials a 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 perform  whether the whole or a substantial part of it on specified, standardised core conditions
    17. 17. Creative Commons IS NOT… anti-copyrightCreative Commons IS… A copyright licence (permission) Cannot exist without copyright A new way of managing copyright Free for everyone to use
    18. 18. Copyright licensing –traditional practice All (or most) rights reserved Requires prior permission from copyright owner unless within an exception to owner’s rights (e.g. fair dealing) under the Copyright Act Negotiating terms is cumbersome, time consuming, expensive – inefficiency means high transaction costs Has 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
    19. 19. Copyright licensing – with CC licences  Some rights only reserved  Relatively short, simplified, standardised licences which provide permission in advance  Do 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)
    20. 20. CC is a copyright-based system oflicences or “permissions” Copyright law gives copyright owners the rights to authorise others to use their materials –permission to do specific acts Authorisation or permission is granted in licences Non-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 dealing Not yet possible to codify the permissions for many kinds of uses of copyright material – particularly the case for public sector materials The 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 negotiated
    21. 21. CC 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.’
    22. 22. Rethinking the Commons “Public domain” traditionally referred to materials not subject to copyright protection because  copyright had expired; or  the materials did not quality for copyright protection. Concept of “public domain” has been recast more broadly to mean ‘open’ knowledge and content  insisting on no rights constrains thinking about public domain  public 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 distributed  encompasses materials that are copyright-protected and made available for access and reuse under open source software and open content licences
    23. 23. Free and Open Source software/open contentconcepts 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 Stallman’s 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 Wiley’s thinking around Open Content; and Elinor Ostrom’s 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
    24. 24. Licence combinations
    25. 25. Baseline permissions Fundamental baseline rights granted by all CC licences:  Reproduce  Distribute  Publicly perform Additional baseline permission granted in four of the six CC licences to create derivative works and  Reproduce  Distribute  Publicly perform the derivative work
    26. 26. CC 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 work Share 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
    27. 27. Human-readable summary
    28. 28. “Legal Code”
    29. 29. Machine-readable code
    30. 30. CC operates as a direct licence,from copyright owner to user
    31. 31. Attribution (BY)
    32. 32. Attribution (BY) Copyright notice - Keep notices that refer to the Licence or Disclaimers Name of author and other Attribution parties Source and Title of the work Licence URL/hyperlink In a Derivative Work, identify the changes made to the original No suggestion of endorsement “In a manner reasonable to the medium you are using”
    33. 33. Attribution (BY)
    34. 34.
    35. 35. Non Commercial (NC)
    36. 36. Non Commercial (NC) “Commercial” defined as meaning “primarily intended for or directed towards commercial advantage or private monetary compensation”
    37. 37. Meaning 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, ercial
    38. 38. Adam Curry v Audax (2006) Curry uploaded photos to Flickr under a CC BY NC SA licence The photos from Flickr were reproduced in a magazine sold commercially in The Netherlands Court held there was no permission to use the photos - as this was commercial use – only Non Commercial was licensed
    39. 39. No Derivative Works (ND)
    40. 40. No 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.
    41. 41. No 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 adapted… …except that a Collection will not be considered a Derivative Work for the purpose of this Licence.
    42. 42. Share Alike (SA)
    43. 43. Share 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)
    44. 44. How 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, mashup  e.g.  Repositories – Wikipedia, Flickr, YouTube  Institutions/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
    45. 45. CC BY SAMost of Wikipedias text and many of its images are dual-licensed under the Creative Commons Attribution-Sharealike 3.0 Unported License (CC-BY-SA) and the GNUFree 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 projectsTo grow the commons of free knowledge and free culture,all users contributing to Wikimedia projects are requiredto grant broad permissions to the general public to re-distribute and re-use their contributions freely, as long asthe use is attributed and the same freedom to re-use andre-distribute applies to any derivative works. Therefore,for any text you hold the copyright to, bysubmitting it, you agree to license it under theCreative Commons Attribution-ShareAlike 3.0Unported License. For compatibility reasons, you arealso required to license it under the GNU FreeDocumentation License. Re-users can choose the license(s)they wish to comply with. Please note that these licensesdo allow commercial uses of your contributions,as long as such uses are compliant with theterms.As an author, you agree to be attributed in any of thefollowing 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 analternative, stable online copy which is freely accessible,which conforms with the license, and which provides creditto the authors in a manner equivalent to the credit givenon this website, or c) through a list of all authors. (Any listof authors may be filtered to exclude very small orirrelevant contributions.)
    46. 46. Trade Adjustment Assistance Community Collegeand Career Training Grant Program (TAACCCT):US $2 billion in funding provided under federal educationfund to create OER resources for use in community colleges P062311PS-0339 by The White House (US Government Work)
    47. 47. AUSTRALIA
    48. 48. AUSTRALIA
    49. 49.  2010 Federal Budget Papers licensed under CC Attribution 2.5 Australia 2011 and 2012 Federal Budget Papers under CC Attribution 3.0 Australia
    50. 50.  In 2009 the Al Jazeera Network launched a repository of broadcast quality footage under a variety of CC licences Initial 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
    51. 51. ABC “80 Days that Changed our Lives” To celebrate ABC’s 80th anniversary , ABC released 22 files capturing historic moments on Wikimedia under CC BY-SA first collection of broadcast “packaged” footage released to Wikimedia Commons under a free license
    52. 52. 
    53. 53.  May 2012 – 3 months on n+Broadcasting+Corporation&date=201205
    54. 54. Wikimedia “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.” 
    55. 55. Legal Validity of LicencesJacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)“Copyright holders who engage in open sourcelicensing have the right to control the modificationand distribution of copyrighted material. ….The choice to exact consideration in the form ofcompliance with the open source requirements ofdisclosure and explanation of changes, rather than asa dollar denominated fee, is entitled to no less legalrecognition.”
    56. 56. Why use CC licences? Other standardised licences e.g. UK Open Government Licence (OGL) are not fully internationally recognised Permits 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) CC’s 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
    57. 57. CC Australia More information at Twitter: @ccAustralia Facebook: Professor Anne Fitzgerald Publications:,_An ne.html Twitter: @AnneMFitzgerald