Launching the Creative Commons

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Recent extensions to copyright terms have had a cumulative effect of dwindling the public domain almost out of existence.

Megan Shaw Prelinger

Wednesday, December 18 2002, 06:37 PM


Recent extensions to copyright terms have had a cumulative effect of dwindling the public domain almost out of existence.

At the framing of the U.S. constitution, copyright was granted to creators of works for 14 years from date of creation, renewable once. All materials were then to enter the public domain where they could be freely recopied and revised by anyone. But eleven copyright term extensions in the past forty years have ploughed that public domain reserve to pieces. The extensions peaked in 1998 with the Sonny Bono Copyright Term Extension Act, which extended the term of copyright to life of the author plus 75 years.

In the four years since Sonny Bono, there has been a prolific upwelling of organized protest and intelligent interpretation critiquing this problem. And the prominent case of Eldred v. Ashcroft currently sits before the U.S. Supreme Court, seeking to overturn Sonny Bono.

In 1996 Eric Eldred, a retired newspaper writer, decided to scan some of his favorite books and publish them on line for free access. Confronted with extended terms on many books that had been on the verge of coming into the public domain before Sonny Bono, Mr. Eldred sued. He was eventually joined by several other plaintiffs, including Dover Books and Luck's Music Library, Inc. The case was argued in front of the Court by Lawrence Lessig in October and will be decided in the spring.

But even without the Supreme Court's decision, Mr. Eldred's case has already had a profound affect on the structure of the public domain. On December 16, the Creative Commons was officially launched at a big San Francisco bash reminiscent of the dot-com launch parties of the '90s.

Founded in 2001 by Mr. Eldred and a handful of cyberlaw and intellectual property experts, Creative Commons has conceptualized and designed a set of legal alternative licenses for makers of public works to attach to their publications. There are three licenses, each with two to three available customizations. These licenses, available for free from the Creative Commons website as of this week, are designed to be alternatives to "the big C," as the hipsters refer to ©.

The purpose of these licenses is to pull control of the future of copyright out of the hands of Congress and put it back in the hands of the writers, artists, and musicians. This is necessary because in the name of "protecting" artists, copyright is now automatically assigned to any work at the moment of its creation. Even without ©, anything you create is de facto excluded from the public domain for the rest of your life plus 75 years.

As comfortable as this might sound to the disorganized visionary who risks having valuable work stolen from them if they forget to mark it with a "©," consider the implications. What if you don't want your work to fall in step behind Mickey Mouse and Coca-Cola (two of the biggest sponsors and beneficiaries of term extensions)? What if you agree with the framers of the Constitution that 14 to 28 years is as long as you really need to hold on to your copyright?

Creative Commons answers this question with its licenses. Its website poses to rightsholders three questions about how they would prefer to share their work with the world: how you would prefer your work to be attributed; whether/if you would allow any derivative works; and whether you would allow commercial use/reuse of your work. Depending on how these three questions are answered, the website generates a customized license that you can then attach electronically to your work. Each license exists in three languages: legalese, as a deed; plain English, for creators to understand; and as an RDF tool, which allows computers to recognize the licensing freedoms and restrictions specific to each work.

What strikes me most about the language surrounding the launch of the Creative Commons licenses is the unique dovetail of rhetoric common to the traditional with that common to the radical. As the Commons and its licenses enter the world, they are taking steps with two feet, one right and one left. The right step invokes the image of the founders of the constitution and uses language of authorial intent. On the other side the left step invokes the ideal of the commons. And the whole project relies quite concretely on throngs of shareware-minded creators eager to free their works from the restrictions imposed by The Man.

It's great that Creative Commons is pushing artists to engage the discourse of copyright on their own terms, as musicians first began to do publicly in the context of the Napster hearings. In those hearings last year, Alanis Morissette made the point that the contracts imposed on artists by record companies most often benefit the corporations more than they benefit the artists, especially lesser-known ones. She pointed out that exposure is often more valuable to artists than having their works locked up by corporations, and that giving some work away is a good way for many people to reach audiences they wouldn't otherwise touch. Her point was roundly rejoined by Don Henley, who stood up for the entertainment industry.

Creative Commons has produced a little video, called "Get Creative" that explains their concept, and frames it in terms of this ongoing dialogue among musicians about how to define ownership of their work. The video uses the example of the agreement reached between The White Stripes and Redd Kross regarding Redd Kross' desire to re-record an entire White Stripes album with a bass track added by Redd Kross. The White Stripes said "okay," and the video celebrates this happy meeting that eliminates the middlemen.

At the Creative Commons party, the cute cartoon images of communitarian musicians was paired with a videotaped endorsement by Jack Valenti, Chairman of the Motion Picture Association of America. Mr. Valenti chose to see the more libertarian aspects of the Creative Commons, and lent his enthusiastic support in a brief speech. His champion of those who elect freedom for their works had the flavor of a states' rights demagogue challenging Congress in a flag-waving contest.

The overarching strategy seems to be that these two rhetorical and political threads will in this case reinforce one another rather than contradict. For the sake of the commons, I hope it works.

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Megan Shaw Prelinger is a member of the Bad Subjects collective.

Copyright © 2002 by Megan Shaw Prelinger. All rights reserved.

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