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Lessig on Digital Barbarism
Lawrence Lessig has posted a review of David Halperin's recent book, Digital Barbarism.
Halperin, who authored the (in)famous New York Times article calling for perpetual copyright, has now compiled his ideas into a book. Lessig offers a much-needed critique, including citing misconceptions about Creative Commons (Halperin conflates it not only with "freeware" with software... more
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The CCi Legal Day in Dubrovnik - Highlights
Tobias Schonwetter · Cape Town (South Africa) · Jul 04th, 2007 6:57 pm · 27 votes · 2 comments
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One day before this year’s iSummit actually started in Dubrovnik, Croatia, CC jurisdiction project leads and teams as well as other legal experts held a workshop called “CCi Legal Day” to discuss, well, legal matters and policy issues in connection with Creative Commons licences.
When I read that the workshop would be a closed workshop, I approached the people responsible at iCommons with my idea to make the workshop a little bit more open and transparent by writing some kind of a retrospect about the event – for crucial subjects such as strategies regarding future licences, possible collaborations with Collecting Societies and the always difficult problem of the applicable law in transnational cases were to be discussed. A number of participants of the general summit told me in Dubrovnik that they actually did not like the fact that the event was executed in such a secluded way. Yet, the participants of the Legal Day itself praised the very constructive work atmosphere at the Legal Day and unanimously assumed that the composition of roughly 70 to 80 selected participants was one of the main reasons for that.
The immediate response to my suggestion from iCommons was, however, less positive than expected as the question was raised whether or not an article about a workshop which would happen a couple of days before the scheduled posting of the article on iCommons’ website was mere old news. Of course, it is not old news! On the contrary, regardless of whether we like it or not, some of the issues discussed at the CCi Legal Day will concern us greatly in the future. It is not without reason that Catharina Maracke, CCi Director and one of the organisers of the CCi Legal Day, wrote about “kicking of interesting discussions” in her preliminary article about the day. It would go well beyond the scope of this article to elaborate on every detail that was discussed at the Legal Day and additional information can be found CC’s iTeamspace website as well as the twitchgamer.net blog. Rather, I feel it is appropriate to simply touch on some of the most pressing legal issues here. For this reason, I talked in Dubrovnik to Catharina Maracke and Michelle Thorne as well as Florian Philapitsch, Legal Project Lead of CC Austria and Alek Tarkowski, Public Lead of Creative Commons Poland about the Legal Day.
In essence, the following issues were dealt with at the Legal Day:
(a) CC licence version 3.0;
(b) Statistics and global growth of CC;
(c) Strategies and issues towards future versioning;
(d) International Private Law issues; and
(e) Collecting Societies.
In his presentation about strategies for future licences, Lawrence Lessig pointed out to the goal that CC licences should always remain as simple as possible and that in some instances even a further simplification of the current licences might be necessary. Larry noted that attribution has become a mandatory requirement in the meantime and that recently both the developing nations licence and the sampling licence have been retired - yet, the so-called sampling plus licence is still available. Larry also broached the issue of commercial uses of material as well as meaning of “non-commercial” and referred to the possibility to introduce a switch for non-commercial licences where users of such a licence could choose whether or not they allow the use of their material on websites that contain advertisement. The issue of the non-commercial clause was later further elaborated on by Paul Keller of CC Netherlands who, among other things, suggested a CC guide for NC licences. In addition, Larry Lessig identified the predominant utilisation of the generic / unported licences as a problem and called for strong support of the “getting local” movement in this regard. Lastly, Larry stated that certain CC licences (CC-BY and CC-BY-SA) are now included in the Free Software Foundation’s list of approved licences.
When asked which of the issues discussed at the Legal Day they considered the most important, all interviewees mentioned, unsurprisingly, the new 3.0 version of the CC licences. The new version brought about a number of important changes and a few of these changes shall be mentioned here. For instance, the definition section of the licenses was revised and numerous new definitions were introduced. Among other things, the definition of the term “original author” became much broader, the making available right was considered (“distribution”) and the new licenses do now encompass databases to the extent they are protected as copyrightable work. Moreover, the previous “generic licence” was superseded by a so-called “unported” licence in an effort to further harmonise the set of CC licences internationally. While the former US law based “generic” licence became the ported US licence, the new “unported” licence utilises the language of the relevant international intellectual property treaties (e.g. the Berne Convention). The “unported” licence aims at creators from countries where a nationally adjusted (“ported”) CC licence does not yet exist. Other important changes pertained to the issue of moral rights, especially the moral right of integrity - as a general rule (no rule without exceptions though!), version 3.0 licences will expressly acknowledge the moral right of integrity in all jurisdictions which recognise such a right. It is also noteworthy that version 3.0 of the CC BY-SA licences permit the distribution or public performance of an adaptation under the terms of a “Creative Commons Compatible Licence”; a list of such compatible licences is available online. Furthermore, new icons were launched, a legal code errata list was set up and the dealing with collecting societies was harmonised in the CC licences. On the Creative Commons website, Creative Commons’ General Counsel Mia Garlick summarised the harmonised approach towards collective royalty collection as follows:
“[A]s regards compulsory royalty collection, the licensor will reserve the right to collect these royalties in those jurisdictions in which this cannot be waived. In those jurisdictions in compulsory royalty collection can be waived, it will be waived completely for those licences that permit commercial use and reserved only for commercial uses in those licences that permit non-commercial use only. For voluntary royalties, the licensor will reserve the right to collect this “in the event that they are a member of a collecting society” that collects such royalties.”
A checklist for upgrading to CC version 3.0 can be found on the iTeamspace website.
Catharina, Michelle and Florian all emphasised that the question of how to collaborate with Collecting Societies in the future was another focal point of this year’s Legal Day. For in some areas and countries, collecting societies simply do have an effective rights monopoly which means that if these collecting societies prohibit and reject the use of CC licences (and that is exactly what happens for example in the area of music), a further spread of the licences is significantly hampered. The use of non-commercial licences could be one possible solution in this area. Against this backdrop, David Uwemedimo’s presentation in his capacity as the Director of Legal Affairs at the International Confederation of Societies of Authors and Composers (CISAC) was highly anticipated. David Uwemedimo seemed to be quite positive about the idea of CC licensing and showed his willingness to work together with Creative Commons for the good of creators. Yet, his remarks were mostly perceived as too noncommittal and too general as well as diplomatic in nature. He raised the typical and well-known objections against Creative Commons licences from a right-holders perspective, such as the fear that CC licensing undermines the inherent value of creative works and collective copyright administration as well as the vagueness of the CC non-commercial clause, and eventually concluded with the call for further discussions in the future. Hence, Mr. Uwemedimo’s contribution essentially boiled down to not more than a polite exchange of views. However, in some countries, like the Netherlands, negotiations between CC and the relevant collecting societies have reached an advanced and more promising stage. In France, one of the collecting societies (SACD) now informally allows members to use a CC-NC licence.
Alek added that from his point of view the statistical information given by Mike Linksvayer and Giorgos Cheliotis as well as their remarks regarding the difficulties of collecting such data were of high value in order to further understand the usage of CC licences.
The most controversial debate of the entire Legal Day, however, took part in the context of the discussion of International Private Law issues and centred around the question as to whether or not a Creative Commons licence qualifies as a contract. From a European / civil-law perspective, CC licences are doubtless contracts as the law itself speaks of so-called ‘licence contracts’. Yet, the situation in the US and other common law countries is less clear, partly because a contract here requires an exchange of promises with clearly defined benefits and obligations for both parties and CC licences might lack such clearly defined benefits and obligations. The question of whether CC licences are contracts determines, inter alia, what remedies are available in the case of a breach of the licence. Raymond Nimmer briefly dealt with the problem in the context of GPL licenses on the ipinfo-blog back in 2005 and concluded that “[h]ow the licence is used in the context of a particular transaction controls whether it creates or becomes part of a contract. It truly is as simply as that.” However, the heated discussion at the Legal Day in this regard has shown that it is still necessary to raise awareness about the potentially different legal qualification of CC licences in different jurisdictions.
The 2007 CCi Legal Day also provided additional information regarding International Private Law as well as the current database legislation in the EU and, after all, the Legal Day turned out to be a very successful and valuable addition to this year’s iSummit programme. Hence it is likely that a similar event will be organised at next year’s summit in Sapporo, Japan.
Tobias Schonwetter,
iCommons legal columnist – University of Cape Town, Department of Commercial Law, South Africa
tags: dubrovnik croatia policy-law cc-licence cc-license version-30 collecting-societies legal-day cci summit07
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Great article, Tobias. Although the workshop has passed, I definitely think that this is incredibly useful and relevant post :) On your note about the closed nature of the event, Creative Commons International, like other partner organisations in the future, will choose to hold their own working meetings while we're all together for the Summit. Such working meetings for affiliates are very useful - specifically because they are small enough to get useful, constructive work done. Note that iCommons will support these where possible, but its not up to us to decide what happens outside of the main Summit time. Next year, it would be great if we could extend the legal day to the Summit with discussions that are useful within a greater context of people who, like yourself, assist with licence development, advice etc. This would be most useful!
Heather Ford · Johannesburg (South Africa) · Jul 04th, 2007 10:47 pm
1 out of 1 person believes this is useful
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