Copy right and creative commons

Professor Anne Fitzgerald
Queensland University of Technology
Creative Commons and Innovation
QUT, Brisbane
1 February 2012
© 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.

This session …
 Copyright
 What Creative Commons (CC) is
 Overview of how CC is being used
© 2012 Anne Fitzgerald..

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

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

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

Generic 2.0 ‘Apollo 11 Video Restoration Press Conference / Newseum’ by NASA Goddard Space Flight Centre, http://www.flickr.com/photos/24662369@N07/3726614425
Films, Videos, Theatre,
TV broadcasts…(cinematograph films, dramatical works, television broadcasts)

Blogs, books, articles, essays…
(literary works, published editions of works)
Generic 2.0 ‘_MG_0318’ by Zitona, http://www.flickr.com/photos/zitona/5021203226/

Compilations of data…
("literary work" includes: … a table, or compilation , expressed in words, figures or symbols – s 10, Copyright Act 1968)
)
Generic 2.0 ‘_MG_0318’ by Zitona, http://www.flickr.com/photos/zitona/5021203226/

Copyright as a bundle of
exclusive 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)

Copyright in the digital
environment
 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
 Broader subject matter – e.g. Computer programs
 Broader rights – e.g. right to communicate electronically to the
public
 Technological Protection Measures (TPMs) (eg encryption/anti-
copying devices) applied to control access or copying;
 Electronic Rights Management Information (ERMI)

Copyright
In 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 (e.g. fair dealing) available
Which means that.....
 the consequences of infringement will deter use/reuse
unless it is clear that the use is permitted

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

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
©all rights reserved

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

Copyright licensing – with CC licences
 Some rights only reserved
 Relatively short, simplified, standardised licences which provide
permission in advance
 Based on copyright
 BUT
 do not cover all possible kinds of permissions – other kinds of
permissions will have to be negotiated
 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)

Creative Commons IS NOT…
 anti-copyright
Creative Commons IS…
 A copyright licence (permission)
 Cannot exist without copyright
 A new way of managing copyright
 Free for everyone to use

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
 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

Building the commons
 Openness is not a naturally occurring (or enduring)
state
 Openness must be constructed
 When dealing with intangible interests in intangibles,
openness is achieved using legal tools (Uhlir,
Reichmann, Stallman, Lessig)
 “free beer” vs “free as in speech”
 Stallman – the latter, not the former;
 the free beer approach will not achieve openness for data
– instead, can lead to lock up/lock out

Licence combinations

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

Core Conditions
Attribution (BY) – attribute the author, and no false attribution
This applies to all CC licences
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

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

http://creativecommons.org/choose/

http://creativecommons.org/choose/
Machine-readable code

CC operates as a direct licence,
from copyright owner to user

Legal Validity of Licences
Jacobsen 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.”

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

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

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