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A key change at iCommons
If you're not part of the iCommons mailing list, take a look at the letter that Heather Ford, Executive Director of iCommons, sent to the list yesterday:
Dear friends,
At the 2 August iCommons Board Meeting, the board decided to make some difficult but necessary changes at iCommons. It has become clear over the past months that our vision for iCommons is different from the... more
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Why bloggers should use Creative Commons licences
Paul Jacobson · Johannesburg Gauteng (South Africa) · Mar 28th, 2007 12:38 pm · 30 votes · 2 comments
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 Blogs are conversational tools. In my mind, the blogging movement's philosophical parent is the groundbreaking work, The Cluetrain Manifesto, which pointed out that markets are conversations. A blog is designed to facilitate conversations. Most blogs have certain common elements, which have come to be regarded as defining characteristics of what blogs are. These include comments and trackbacks, which are used to continue and spread conversations that started with one post and has since encompassed many more blogs than were initially contemplated.
But there is a barrier to truly free conversations, using blogs - this is the tendency to publish posts under full copyright. The problem with this is that, without the publisher's permission, you may not copy from that blog post or otherwise reproduce and publish that content. A common practice in the blogosphere is to quote from other blogs or sources when publishing a new post - but this becomes problematic where those quotes are from content that is 'all rights reserved'. These rights primarily comprise the rights which are protected under the Copyright Act, in the case of a blog post (which would likely be classified as a 'literary work'), the copyright holder retains the rights to:
* reproduce the content in any manner or form;
* publish the content if it wasn't published previously;
* perform the work in public;
* broadcast that content; and
* make an adaptation of the work.
This of course means that if a blogger has reserved all his/her rights to the content in that blog post, you do not have the right to quote from it in your own blog post or in anyway, misappropriate the rights that are reserved. The only legal way you can, for example, republish an extract in your blog post is if you obtain permission from the copyright holder (which need not be the author of the post). This stifles conversations about the subject matter of those protected blog posts and frustrates the purpose of blogs in general, particularly if you accept that they are conversational tools.
Of course some publishers use blogging software because of the way the software works and not to engage in a conversation with the rest of the blogopshere. The same is true for any website, really. In these cases there can be no complaint about the licence under which that content is published. Where it becomes problematic is when blogs are published as part of a conversation and yet the content is published under full copyright. Asserting copyright closes off the flow of the conversation because one of the more effective ways of getting your content out there is by having other bloggers reproduce portions of your content by combining it with their own take on the subject matter of your post.
There is a good reason for copyright and this shouldn't be discounted altogether. Copyright exists to protect the original content of a creator and that creator's right to make a living from his/her content, for example, and shouldn't be regarded as evil in itself. It serves a valuable purpose. The question should rather be what you, as a creator, are seeking to achieve and whether publishing your content under copyright serves that purpose.
As a blogger there is also a concept called 'fair dealing' which was introduced into South African copyright law around 1992 when an amendment to the Copyright Act was passed and which really gave effect to the concept. 'Fair dealing' is also found in Canadian, UK, Singapore, Australian and New Zealand law.
The concept 'fair dealing' is pretty vague and indefinite. The basic idea is that certain acts, while constituting infringements of copyright, are excused because they constitute fair dealing. This means that, for example, a blog post may be copied in portion or as a whole, in certain circumstances. In the case of South African law, these parameters are set out in section 12 of the Copyright Act and are as follows (the parameters which probably apply more to blogging are highlighted in italics):
* for the purposes of research or private study by, or the personal private use of, the person using the work;
* for the purposes of criticism or review of that work or of another work; or
* for the purposes of reporting current events -
o in a newspaper, magazine or similar periodical; or
o by means of broadcasting in a cinematograph film.
It is important to remember that fair dealing only applies to literary, musical and artistic works. It does not apply to sound recordings or other works that don't fall into these categories. Just how much you can copy is a balancing act. There is an argument that our concept of fair dealing should be interpreted in line with the American concept of 'fair use'. Certainly this is the approach taken in Australia with their concept of 'fair dealing'. In the United States the following factors are taken into account when determining what constitutes fair use:
* the purpose and the character of the use;
* the nature of the copyrighted work;
* the amount and substantiality of the portion used;
* the effect on the other party's potential market.
So again it comes down to how much you use. At the very least you must acknowledge your source when you reproduce some of that content. From there you must consider the proportionality of the copy. If you copy whole posts without attributing them and start impacting on the traffic to the other blog, you will likely run into problems. I still recommend seeking the permission of the publisher concerned before you reproduce content on your blog. It is also a good idea to check the terms and conditions on the site concerned, if they exist. Some sites prohibit any form of reproduction and this would likely negate the protection afforded by fair dealing. The end result is a blockage in the information flow and a pause in the conversation.
If your intention, as a blogger, is to have your content and your thoughts distributed as widely as possible, then reserving all your rights to your content is counterproductive. A more effective way of distributing your content and still retaining some control over how your content is distributed is using Creative Commons licenses. For example, you could license your blog's content using the Attribution Non-commercial-NoDerivatives (CC BY-NC-ND) license, which entails the following:
'This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the 'free advertising' license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can't change them in any way or use them commercially.'
This license scheme enables you to reserve the rights to exploit your content commercially and to have your content shared in the same form you published it in - pretty much what many bloggers would like to do, but with the proviso that you are credited as the source of the content. You arguably retain the most valuable rights and still allow the conversation to flow.
I think it is important to realise that the notion that it is not possible to make a living by publishing content under Creative Commons licenses, is a myth. The key is to select the correct combination of licences for your specific needs and strike the balance between publishing your content as widely as is possible and still protecting your rights to exploit your content in ways that are most important to you. A good example of a person who started to publish his content under Creative Commons licences is Andrew Heavens, a photojournalist who decided to publish his photos on his Flickr site under a Creative Commons Attribution-NonCommercial-NoDerivatives licence (the one described above). When he did this, he discovered something remarkable - in an article on iCommons.org, he is quoted as saying:
'One of the most frustrating things about press photography is the short lifespan of your photographs,' says Andrew. 'You put yourself in a risky situation to record what you consider to be an important, newsworthy event. The resulting pictures flash up on newspaper pages, TV screens and Yahoo! news for a day or so. And then they disappear. The greatest thing that Creative Commons does is give you work an extra lease of life. After the news event has passed on, the photographs are still out there, waiting for someone else to pick up on them, give them a new meaning and use them in a different setting.'
So my plea to bloggers is to publish your work under Creative Commons. Let's keep the conversations going in a truly meaningful way. Reserving all rights to your content may seem to benefit you in the short term but all it does is starve the blogosphere of that original and vital content. All this really requires is that you think about licensing schemes a little differently and realise that allowing your content to be published more widely and legitimately serves you far better than holding it all close. There may well be content that should be fully protected. The question is whether your content should be so carefully protected or whether you couldn't, perhaps, let it out to play with the other posts in the blogosphere?
Photograph: Blogging for Dummies, by Somewhat Frank, CC BY-NC-SA 2.0
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