Copyright and Creative Commons licensing

Professor Anne FitzgeraldQueensland University of Technology

Creative Commons and InnovationQUT, Brisbane

1 February 2012

© 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.

This session …CopyrightWhat Creative Commons (CC) isOverview of how CC is being used

© 2012 Anne Fitzgerald..

CopyrightGoverned 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 expressed

© 2012 Anne Fitzgerald..

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 rightsFor 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)

© 2012 Anne Fitzgerald..

Copyright in the digital environmentWhen 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) © 2012 Anne Fitzgerald..

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 (e.g. fair dealing) availableWhich means that.....the consequences of infringement will deter

use/reuse unless it is clear that the use is permitted© 2012 Anne

Fitzgerald..

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

usesany other rights/obligations (other than

copyright) also need to be considered

© 2012 Anne Fitzgerald..

Copyright licensing – traditional practiceAll (or most) rights reservedRequires 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

© 2012 Anne Fitzgerald..

©all rights reserved

Creative Commonsa 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© 2012 Anne Fitzgerald..

Copyright licensing – with CC licences Some rights only reservedRelatively short, simplified, standardised licences which

provide permission in advanceBased 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)

© 2012 Anne Fitzgerald..

Creative Commons IS NOT…anti-copyright

Creative Commons IS…A copyright licence (permission)Cannot exist without copyrightA new way of managing copyrightFree for everyone to use

© 2012 Anne Fitzgerald..

Rethinking the Commons“Public 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 contentpublic 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© 2012 Anne Fitzgerald..

Building the commons Openness is not a naturally occurring (or

enduring) state Openness must be constructedWhen 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

© 2012 Anne Fitzgerald..

Licence combinations

© 2012 Anne Fitzgerald..

Baseline 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 work© 2012 Anne Fitzgerald..

Core ConditionsAttribution (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

© 2012 Anne Fitzgerald..

Adam 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 Netherlands

Court held there was no permission to use the photos - as this was commercial use – only Non Commercial was licensed

© 2012 Anne Fitzgerald..

http://creativecommons.org/choose/

Human-readable summary

“Legal Code”

http://creativecommons.org/choose/

Machine-readable code

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

© 2012 Anne Fitzgerald..

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.”

© 2012 Anne Fitzgerald..

Why 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) 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

© 2012 Anne Fitzgerald..

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© 2012 Anne

Fitzgerald..