COMMON GROUND The Creative Commons Movement & The Intellectual Property Debates by Andre Cavalcante “The lesson in the future will be that copyright is protected far too well. The problem will center not on copy-right but on copy-duty- the duty of owners of protected property to make that property accessible.” ~ Lawrence Lessig in Code

Concerns and arguments about the modern system of copyright and intellectual property seem to be growing daily. Heated debates in the world of academia rage on about the merits of establishing thick and/or thin copyright protection on creative and intellectual works. Arguments about peer-to-peer networking and file sharing gloss the pages of the mainstream popular press. The Napster controversy put copyright and technology issues in the foreground of American cultural consciousness. In the past few years, reactionary concerns about file sharing led the record industry to go after users downloading music, some younger than 13 years old. Out of this dissonance and confusion surrounding copyright, a group of academics, lawyers, and filmmakers actively chose to stake a claim in the debate devising a method for preserving a space for non-commercial works to be displayed and accessed free of charge. They are Creative Commons.

Creative Commons, creativecommons.org, according to its website, takes “private rights to create public goods: creative works set free for certain uses.” Those responsible for creative commons
take the issue of ‘copy-duty’ into their own hands and illustrate that there are alternatives to a strict regime of property rights when it comes to intellectual and creative works. In 2002 Creative Commons released a set of copyright licenses with ‘some rights reserved.’ Their website explains, “We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them- to declare “some rights reserved”” (creativecommons.org/about/history).

Creative Commons was founded in 2001 and is primarily financially supported by the Center for the Public Domain. The actual word ‘intellectual property’ is young, appearing first in 1967 in the title of a newly formed arm of the United Nations, the World Intellectual Property Organization (Siva Vaidhyanathan 2001). Since then the word has been assimilated into daily conversation and academic and law discourses with various consequences. Important discussions that involve ideas about art, originality, ideas, and information become framed around the conventions of ‘property rights.’ Should information and ideas be considered property?

Media products, ideas, and information are unlike other commodities like cars or soap in many crucial ways, mainly their function in the preservation of democracy, their dissemination of important ideas, and their ability to produce knowledge. Since media play crucial roles in maintaining a society, there is a safety valve placed into copyright law that challenges monopolistic control over content, “fair use.” Codified in the Copyright Act of 1976, fair use allows users to make copies, quote from, refer to copyrighted works in order to criticize or comment on them, for news reporting, and for teaching, scholarship, and research. Most noncommercial and educational duplication of works protected under copyright fall under the fair use and private use exclusions (Siva Vaidhyanathan 2001).

In the spirit of ‘fair use’, the Creative Commons movement and creativecommons.org actively create a method for preserving some copyrights, while contributing to the public domain and enriching the
commons. It is not only a defense against state regulation and the increasing efforts to make copyright restrictions stronger and wider, but it creates an alternative and viable mode of copyright. There are a variety of levels of protection allowing an artist to make a profit while freeing the work for use in certain ways with no charge. For example, one license allows a piece of music to be sampled, but not the entire song. Another license lets a creative work open to use only for non-commercial purposes.

Many in the record industry and other entertainment and creative industries disagree with weaker rules regarding copyright. However, in the past few years the movement has been gaining momentum. According to Creative Commons’ online traffic reports, licensing has increased by 50% each fiscal quarter since September 2003. In November 2004, the Electronic Frontier Foundation advised those applying for their Open Audio license to use a Creative Commons license instead

The BBC recently decided to use the Creative Commons model for its Creative Archive, offering much of the BBC’s audio and video programming. Citizens in the UK will have the ability to access, edit, reproduce, and share new content. Paul Gerhardt, a director of the BBC Creative Archive announced in a recent press conference, “We want to work in partnership with other broadcasters and public sector organizations to create a public and legal domain of audio visual material for the benefit of everyone in the UK.” The Creative Commons movement is just one of the many groups in the creative fight trying to influence the debate over the future of copyright and intellectual property. As new technologies develop and new laws are crafted to meet the challenges of a constantly changing world, the battles over copyright and artistic control will continue to rage on. Stay tuned.