Creative Commons against copyright?

Yesterday I was at the British Library at the launch of the UK Intellectual Property Office’s new consultation “Taking forward the Gowers Review of Intellectual Property: Proposed changes to copyright exceptions” (thoughts here). I happened to sit next to the legal counsel for the Motion Picture Association in Europe. We chatted for a moment, and I explained my consultancy work on Creative Commons. He asked a question that often comes up during my work:

“What I don’t understand is why Creative Commons is so against copyright when the very licences depend on copyright to function?”

Creative Commons isn’t against copyright.

CC licences give permission in copyright to do acts that would otherwise be restricted by copyright for a work, but also attach some limitations. The non-commercial (NC) clause in a CC licence, for example, says that users can copy, distrbute, and perform the work (all acts restricted by copyright), but only for non-commercial purposes. If you use the work for a commercial purpose without permission, you will be breaching the copyright for the work. Copyright underpins the ability of a CC licence to give permission for some uses but require users to behave in a certain way with the work for other uses.

I think that the necessity of copyright becomes pretty clear after realising that copyright makes Creative Commons function. This certainly would be clear for anyone drafting the CC licences. So to say that “CC is against copyright” misses that obviously to draft a copyright licence one must know about copyright.

But the real meat of the misunderstanding on this issue originates with trying to define what Creative Commons “is”.

Creative Commons is both an organisation and a community

Creative Commons is a non-profit, tax exempt (in the US), charitable organisation chartered in Massachusetts and with its headquarters in San Francisco. The organisation itself is most definitely not against copyright and is well aware that copyright underpins the licences it provides. CC doesn’t promote abolishing copyright: They provide liberal licences available via a point and click interface because they believe that copyright hasn’t scaled well from the age of the printing press to the age of the information superhighway. Using CC licences can help alleviate some of the tensions that take place when applying the permission-centric culture of copyright to digital culture.

You can watch one of the founders of Creative Commons Lawrence Lessig’s (many) talks on remix culture here and read the transcript here. This helps explain in part the philosophy behind CC and the licences their relationship to copyright law.

Creative Commons is also a community, or at least is a licensing platform used by many people, some of whom generally share similar values. Some of those members of the community do believe that copyright should be abolished, but they fit into an extremely small minority. They certainly don’t speak for the rest of the CC community nor do they speak for CC as an organisation. The majority (in my opinion) believe that copyright is necessary and that it shouldn’t be abolished (though it may need reforming).

At the core, the Creative Commons licences give creators more options on how to use their copyright, one that arguably better fits in certain circumstances with digital technology, which allows infinite, perfect copies at little to no cost and distribution throughout the world via the internet.

The public domain

As a final note, I should mention the role of the public domain in this question. While as we’ve seen CC doesn’t advocate against copyright and most of the CC community don’t either, this doesn’t mean that at times CC or members of the community don’t argue for specific works being placed into the public domain (out of copyright). The new CCZero licences and the new Open Data Commons Public Domain Dedication and Licence both place work out of copyright. Arguing that some works, such as databases or US Government caselaw should be in the public domain is not the same as arguing against any copyright for any works. It does however mean that sometimes the best copyright is no copyright at all.