Copyright critics push alternative protections

From the Summer 2003 issue of The News Media & The Law, page 44.

By Emily Harwood

For hundreds of years, governments have granted special rights to artists, musicians, authors and other creators, to protect an interest in their works for a limited period of time.

The length of a copyright granted to protect an author’s interest in creative works has more than tripled since the original U.S. laws were established more than two centuries ago, leaving some to wonder if there is an end to the expansion.

Those who say that creations should be released into the public domain much sooner have challenged the status quo through lawsuits, attempts at alternate legislation, and entirely new licensing systems.

“Today’s copyright regime is a deterrent to some scholarship and journalism, because it may be too much trouble to discover who holds the copyright or whether it’s expired — not that the latter is likely anymore,” said Dan Gillmor, a technology columnist for the San Jose Mercury News. “And some publishers are afraid to do anything that even might arouse the wrath of Hollywood, or other members of the copyright cartel.”

Existing law is much broader than the original terms. The Constitution gives Congress the power to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their Writings and Discoveries.” The first terms, established in 1790, set copyright expiration at 14 years from the date of publication with a possible 14-year renewal.

The most recent copyright standards were established with the passage of the Sonny Bono Copyright Term Extension Act of 1998. Under that act, a copyright expires 70 years after the death of the creator; the previous law set the term at 50 years. Terms for anonymous and corporate works extend for 95 years from publication or 120 years from creation, whichever is shorter.

The Bono Act survived a challenge, which ultimately was decided in 2003 by the Supreme Court in Eldred v. Ashcroft. The plaintiffs included Web publisher Eric Eldred and others whose businesses involved the use of works in the public domain. Congress, they alleged, exceeded constitutional boundaries by extending existing copyrights, essentially making the terms limitless. The act, they claimed, also violated their First Amendment rights.

In a 7-2 decision, the Court upheld the act, saying that the new extension falls within the “limited times” requirement set forth in the Constitution. The Court also found that any First Amendment interests in using others’ works and words did not overcome the Congressional power to extend terms as it saw fit.

Critics of the extensions to traditional copyright support alternative forms of protecting creative works.

These alternative schemes are legal copyright agreements, even though they have not been enacted or even considered by Congress, because they are more like private contractual agreements in which authors limit their rights voluntarily, and because they allow for greater use of copyrighted works. No alternative scheme would be legal if it tried to give a work’s creator greater copyright protection than federal law allows.

One such alternative is Creative Commons, developed in 1998, the same year that copyright terms received their most recent extension. By licensing a work through the Creative Commons, a creator can opt to reserve certain rights while granting other rights to the users of the works.

According to Creative Commons executive director Glenn Otis Brown, some of the parties involved in Eldred also were instrumental in developing alternatives to the traditional system. Creative Commons got its start during a 1998 discussion among Lawrence Lessig, who represented the plaintiffs in Eldred v. Ashcroft and then-professor at Harvard Law School; Hal Abelson, a computer science professor at the Massachusetts Institute of Technology; and Eldred, who suggested rebuilding the public domain through a nonconfrontational, voluntary movement. When Lessig went to Stanford University Law School in 2001, he brought the idea for Creative Commons with him, Brown said. The group had a Web site in 2002 and began offering various services by the end of that year, he added.

“Copyright is not an on/off switch. The truth is, it’s a series of rights,” Brown said.

Creative Commons wants to provide a “welcome sign” to users of information by clarifying what uses are available above and beyond fair use, he added.

Fair use, as established under U.S. copyright law, generally allows a person to use limited material from a copyrighted work for purposes such as education, research, news reporting, or criticism. Under a traditional copyright, the owner of the work controls any use of the creation that is not considered “fair use.”

Creative Commons licenses allow a work’s creator to set additional parameters allowing for even broader use. These licenses, which can be selected at the group’s Web site, www.creativecommons.org, can be used free of charge.

This copyright, unlike its traditional counterpart, serves to show that some, not all, rights are reserved, Brown said. Users of the Creative Commons copyright can allow unlimited use of their material, as long as certain provisions are met. Some of the licenses, for example, may require attribution any time a work is used or may forbid the use of a work for commercial purposes.

A work’s creator can choose from one of 11 different copyright options. Using the Creative Commons Web site, site visitors define their licenses by looking at three key factors: Does use of the work require attribution? Is the work to be used for commercial purposes? Are derivatives of the work allowed? Based on the responses, the Web site will refer the user to a suggested license. Users then receive put the Creative Commons copyright symbol on their sites and link to Creative Commons’ site. When someone clicks on the symbol, it refers them to the type of license that was selected.

About 800,000 Web pages link to a license on the Creative Commons Internet site, Brown said. That number, however, is not a completely accurate representation of how many works are licensed by Creative Commons because some licensed works may contain more than one link to the site while other Web sites may contain several licensed works but only link back to Creative Commons a couple of times.

The licensing process may appear simple, but the Creative Commons copyright is still a completely legal one. The group has worked with pro bono attorneys to make the licenses as “tried and true legal licenses as possible,” said Brown, and no license disputes have gone to trial.

Three versions of every license exist, Brown said. The first version that a creator will see is the “human-readable” version. It is not a legal document, but it briefly explains the license in simple language. A document containing the “hard-core legal language” also exists on the Web site. Additionally, a machine-readable version of the license is built into the license itself.

Brown said there are two reasons why people use Creative Commons licenses. The first is utilitarian. They “want to make it clear they’re sharing [their creations] with the world but make it clear that there are certain conditions to live up to.”

The second purpose is symbolic, or expressive, Brown said. The Internet community is generally known for its willingness to share information with one another. Often people adopt a Creative Commons license to show support for this type of sharing.

“It’s like raising their hand in favor of a more alternative way,” he said.

Cory Doctorow cites “artistic, ideological, and commercial reasons” as the grounds for his decision to use a Creative Commons license for the electronic version of his first novel, “Down and Out in the Magic Kingdom.” Under this license, the electronic text can be distributed noncommercially, Doctorow said.

The book has seen both on- and offline popularity. More than 70,000 people downloaded it for free at www.craphound.com, Doctorow’s Web site, and it sold out in its first print run. Amazon CEO Jeff Bezos recommended the book for summer reading during his appearance on a National Public Radio program.

Doctorow likens the success of his book to that of “Divine Secrets of the YaYa Sisterhood,” which gained popularity as it was passed from one woman to another.

“The people who are the audience for my book have a big circle of friends, except it’s virtual,” he said. “By enabling them to pass the books around using the social medium that was already part of their milieu . . . I [was] doing the book service.”

Doctorow’s next book is a short story collection. Six of the eight stories will carry Creative Commons licenses.

Jerry Goldman, the founder of the OYEZ Project, used the Creative Commons to license 100 hours of Supreme Court audio. The material can be downloaded in MP3 format at the Project’s Web site.

Since 1994, the project has provided Supreme Court arguments in streaming audio, said Goldman, a professor of political science at Northwestern University. Project members purchased the recordings from the National Archives and Records Administration. They then engineered the audio to improve the sound and clarity, thereby making their version of the recordings a derivative work that is copyrightable, Goldman said.

Visitors to www.oyez.org currently can stream 2,000 hours of Court material, and eventually, all of the recordings will be downloadable, Goldman said. He has always wanted to make the materials available via download but he had concerns about copyright issues, he added. The Creative Commons allowed Goldman to copyright the materials while still providing flexibility in sharing them with the public.

The MP3s are registered under a Creative Commons “attribution-noncommercial-sharealike” license, meaning that users are permitted to copy, distribute, display and perform the work for noncommercial purposes, as long as they give attribution to the OYEZ Project. The license also allows derivatives of the work, as long as the user complies with the same licensing agreements with which the information is shared with the public.

It is necessary to clarify usage rights when sharing information, and the Creative Commons makes this possible, Goldman said. With file-sharing programs receiving so much negative publicity, endeavors such as the Oyez Project, which provide for the legal sharing of materials, give peer-to-peer networks a good name, he added.

Creative Commons also provides an alternative for those who wish to control the length of their copyright terms. The conditions of this license, aptly named the Founder’s Copyright, echo those set forth in the 1790 copyright law. The Founder’s Copyright limits term to 14 years with an available 14-year extension.

Parties who want to use the Founder’s Copyright sell their works to Creative Commons for $1, according to the organization’s Web site. During the 14- or 28-year period, the party has an exclusive right to use the copyrighted material. When the term expires, the contract ends, and the work enters the public domain.

O’Reilly & Associates, a publisher of computer books, was the first to adopt the Founder’s Copyright. Tim O’Reilly, the company’s founder and CEO, announced the decision in April.

The move to a Founder’s Copyright was a “symbolic gesture” to draw attention to the value of “recycling intellectual property,” O’Reilly said.

Existing copyright laws keep many works out of the public domain long after they have lost most of their commercial value, O’Reilly said. “We’re trying to get other publishers to think, ‘How many books are there, really, that will go past that time frame?'”

O’Reilly acknowledged that the Founders Copyright is not for everyone. Because technology is constantly changing, many of the materials O’Reilly’s company sells now could likely be obsolete in 14 years. The works of other copyright holders may have a more lasting value. Copyright should not be a “one size fits all” scheme, and Creative Commons provides options to help fit the needs of different copyright holders, he said.

Efforts to change copyright through traditional methods have not been wholly abandoned. Rep. Zoe Lofgren (D-Calif.) introduced the Public Domain Enhancement Act on June 25. The bill allows those with a long-term interest in a work to renew a copyright after 50 years by paying $1. Works that are not renewed at that time would enter the public domain.

In a July 25 press conference introducing the bill, Lofgren referred to Justice Stephen Breyer’s dissenting opinion in Eldred v. Ashcroft. Breyer stated that only 2 percent of all 55- to 75-year-old works retain their commercial value.

In her speech, Lofgren said, “This bill will breathe life into the 98 percent of older works identified by Justice Breyer; those long-forgotten stories, songs, pictures and movies that are no longer published, read, heard, or seen. It is time to give these treasures back to the public.”

As of late July, the bill had been referred to the House Judiciary Committee. It has the support of several organizations and individuals, including the American Library Association and the Electronic Frontier Foundation. Lessig is also a proponent of the bill.

While Congress is discussing potential copyright reform, Creative Commons also plans to broaden its scope. Brown said he believes Creative Commons licenses will continue to catch on. The group planned another big push for the Founders Copyright in Summer 2003. Additional specialty licenses, including educational licenses, are in the works, and the group is also working with partner volunteers around the world in an effort to adapt licenses for use in different countries.

Those who currently use Creative Commons hope their attitude of sharing will catch on. Goldman would like to see the Supreme Court make their materials more easily accessible to the public.

The concept of sharing information and making it more available to those who seek it continues to fuel Creative Commons and other copyright alternatives.