Supporting Copyright Reform

Timothy Vollmer

Today Creative Commons released a policy statement expressing its support for copyright reform efforts around the world.

Creative Commons (CC) has enabled a new approach to copyright licensing over the last ten years. CC licenses facilitate novel social, educational, technological, and business practices, and support productive relationships around networked knowledge and culture.

We are dedicated stewards of our licenses and tools, and we educate users, institutions, and policymakers about the positive benefits of adopting CC licenses. Our licenses will always provide voluntary options for creators who wish to share their material on more open terms than current copyright systems allow. But the CC vision—universal access to research and education and full participation in culture—will not be realized through licensing alone. Around the world, numerous national governments are reviewing or revising their copyright law. Some proposed revisions would broaden the scope of uses of copyrighted works permitted without the rightsholder’s permission. In response, it has been suggested that the very success of CC licenses means that copyright reform is unnecessary—that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.

Our experience has reinforced our belief that to ensure the maximum benefits to both culture and the economy in this digital age, the scope and shape of copyright law need to be reviewed. However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.

At its core, Creative Commons is rooted in the broader work to reform copyright. The founders of Creative Commons believed that copyright law was out of sync with how people share content on the Internet, and they developed the CC licenses as one way to address that problem. But we’d like to see copyright law itself better aligned to its original purpose–to enable and reward creative participation in culture and society.

From time to time, people in our community bring up the question of whether Creative Commons should be only a steward of the CC licenses, or also a steward of the broader participatory culture that the licenses are meant to promote.

Creative Commons affiliates, board, and staff have worked together over the past year to develop the policy statement above. The need for a statement like this became apparent at the 2012 Global Congress on Intellectual Property and the Public Interest in Rio de Janeiro. Several CC affiliates attended, many who work on copyright reform initiatives alongside their CC outreach. In Rio, affiliates described the dual nature of their work, which they feel sometimes requires removing their “CC Affiliate hat” when involved with reform efforts. They argued that developing tools for sharing creative content and arguing that outdated copyright laws be changed to better support legal sharing were two different sides of the same coin. Affiliates asked for clarification of the organization’s policies on affiliates engaging directly in copyright law reform proposals.

Over the next several months, Creative Commons drafted a statement that re-emphasizes the many benefits that CC licenses bring to society. But it also acknowledges the limitations of CC and expresses the need for reform of the current copyright system. CC affiliates came together in Buenos Aires in August 2013 to discuss the position of Creative Commons in relation to copyright reform. Over 100 affiliates and supporters participated in a day-long pre-conference event. The policy position was drafted and reviewed by the board of directors, affiliates, and staff.

There are several reasons that we feel such a position is useful–and necessary. First, there have been several proposed laws (like SOPA/PIPA) and trade agreements (ACTA/TPP) that if enacted would be detrimental to user rights to access and use information. And, we’ve heard that in some policy discussions the success of CC as a voluntary licensing scheme is being used by incumbent interests as evidence that fundamental copyright reform is unnecessary. This is incorrect. As we wrote in March,

[The] existence of open copyright licenses shouldn’t be interpreted as a substitute for robust copyright reform. Quite the contrary. The decrease in transaction costs, increase in collaboration, and massive growth of the commons of legally reusable content spurred on by existence of public licenses should drastically reinforce the need for fundamental change, and not serve as a bandage for a broken copyright system.

The passage of increasingly harsh copyright regulations has the potential to render CC licenses and tools ineffective. The aim of these laws are counter to CC’s mission and vision. Second, it’s clear there are some areas of copyright where open licensing won’t solve the problem. One example is increasing access to copyrighted works for the visually impaired. Paul Keller explains this well:

Take the WIPO treaty for the visually impaired: There had to be a treaty because a voluntary or market driven solution to end the book famine for visually impaired people in the developing world did not emerge even though the problem had been known for a long time. Quite clearly the problem cannot not be solved by encouraging publishers to license their works openly and, instead, it required a tailored legislative approach that builds on new limitation and exemptions that address this specific issue.

Third, many CC affiliates are already deeply embedded in copyright reform activities as a part of their broader legal, policy, and digital rights advocacy work. It makes sense for those affiliates engaged in reform efforts to be able to speak and engage wearing their “CC Affiliate hat,” instead of trying to maintain the ambiguous and sometimes arbitrary separation between their “CC work” and the work they do supporting user rights and the public interest.

While we think this policy statement is noncontroversial, we must proceed with care. Historically, our organization has not been heavily involved in copyright reform efforts. Instead, we’ve been focused on the development and stewardship of the licenses and public domain tools. And this will certainly continue to be the case. Direct advocacy supporting more fundamental copyright reform has taken a backseat, for several reasons. First, we recognize and appreciate the value of neutrality, and acting as a responsible and impartial steward of our licenses, no matter who wishes to use them. Making our tools the best they can be and educating about how to use them are our core tasks. Second, as a U.S. based 501(c)(3) nonprofit corporation, we are constrained in our ability to engage in lobbying activities. Any lobbying conducted by CC headquarters staff will continue to be carefully tracked and reported. And lobbying by CC Affiliates will continue to be on behalf of the jurisdiction team in accordance with our MOU and established guidelines. Finally, there are groups that are well-positioned for advocacy activities, such as the Electronic Frontier Foundation, Open Rights Group, Open Knowledge Foundation, and La Quadrature du Net. We support and promote the crucial, timely work of these and other groups.

We reaffirm that the mission of Creative Commons will sometimes call for our involvement in reform efforts. At the Creative Commons Global Summit in Buenos Aires, Lawrence Lessig gave a talk entitled, “Laws that Choke Creativity”. Lessig said he supports the fundamental freedom to remix. “We need to share more, and share more legally,” he said. “But in order to do so, the law must change.” He said that Creative Commons is not the complete solution. “We need real change in real law if these freedoms are to be secured.”