Openness and sharing for cultural institutions
MARTIN VON HALLER GRØNBÆK, LAWYER, PARTNER AT BIRD & BIRD
Creative Commons is an alternative to traditional copyright licensing, offering creators and rightsholders a simple and flexible set of tools to define how their works may be shared and reused. This opens up new opportunities for the culture sector to expose content and encourage sharing and reuse on the Web. With his legal expertise, Martin leads us through Creative Commons – its background, history, and opportunities.
An unopened treasure trove
The value of culture is directly proportional to the number of people who experience it. The objective of all cultural institutions must be to have the greatest possible amount of the knowledge they possess accessed by as many people as possible. Whether the institution in question works with art, data, archives, stories, or any other form of culture, its very raison d’etre – apart from collecting – is to disseminate as much knowledge and insight it possibly can.
Culture is not just an object of passive consumption. Culture is very much alive and is at its most vibrant when experienced jointly, shared amongst the people within a community, and prompting even more culture in turn. Cultural institutions do not just look back in time; they also look ahead by helping to shape the basis on which our present and future culture, democracy, economy, and all other aspects of society are based.
All cultural institutions should endeavour to be as open as possible in the sense that as many people as possible should have the easiest access possible to the institution’s content. At the same time the institution should seek to ensure that the freely available content is shared, enriched, and processed by users, whether they are citizens, students, scholars, researchers, or commercial ventures.
Content that has been digitised and can be accessed online via the Internet is by nature open and can be shared. Stewart Brand’s famous maxim “Information wants to be free” encapsulates, in all its simplicity, the fact that digitised content can be copied and distributed at zero marginal cost.*1 Digitisation and the Internet allow cultural institutions to realise even their wildest dreams about maximum accessibility and exposure to a maximum number of users.
So why have Danish cultural institutions not embraced the opportunities for opening up their digital treasure troves, making their content available for everyone to share? There can be many reasons for this, and in fact most of these reasons are poor excuses. Besides the fact that a lot of content is “copyright defective”, meaning that it cannot legally be made freely available, the culture industry and its politicians still fail to realise that openness and sharing do not just tie in perfectly with the overall objectives behind the institutions and cultural policies; they also provide scope for generating income and savings.
Today, computers with Internet access put new tools at the disposal of everyone; tools that can not only access digital information, but also change, add to, modify, and improve digital content. In recent years, such digital tools have gradually become commonplace – young people today regard such tools, e.g. for editing sound, video, images, and texts as extensions of their own minds. It has become perfectly natural to modify cultural content, thereby expressing oneself politically, artistically, and creatively.
Remix is the nature of culture
This “remix culture” is evident in YouTube videos, mash-ups of photos on Flickr, the online encyclopaedia Wikipedia, and the countless number of personal blogs where ‘amateurs’, in the true sense of the word, express their beliefs, attitudes, and creativity.*2 Remix culture expresses a perfectly natural and human urge to continue to build on what others have created. In this sense remixing is simply an expression of the basic social nature of culture.
In the past, remixing has been restricted partly due to limitations in terms of the tools and content available in an analogue world, and partly due to countless restrictive laws and rules based in the concept that culture should not be shared without the explicit permission of the author or creator. Even though these rules, particularly copyright law, continue to curb remix culture on the private market there is no reason why this should still apply to public cultural institutions. For their business model does not rest on making money from selling copies of individual works, nor on closely monitoring and controlling such sales.
The challenge for cultural institutions is, however, that the content they posses can only be made freely available and shared by all if 1) the copyright owners from whom the institution has acquired the content give their permission, and 2) if the institution itself gives its permission in case of content to which the institution itself holds exclusive rights. Cases of the former kind entail clear and definite limitations, whereas cases of the latter kind offer far more scope for action. If they wish, cultural institutions can decide to open up their content, allowing users to share it. 
The Free Culture movement
Creative Commons is rooted in the Free Culture movement, which arose in the mid-1990s as the Internet began to gain momentum. It is worth remembering that when the World Wide Web was first created and the first browsers became available, the intention was not for these browsers to be primarily – or almost exclusively – used to access websites, i.e. only being able to “view and read” what is on those sites. The first web browsers were created to read and write: The World Wide Web was originally conceived as a “read/write web”. For example, the first versions of the Mosaic browsers enabled users to write on and change the sites they accessed.
Only later, and especially as the World Wide Web grew increasingly commercialised, did the browser primarily become a window for traditional consumption of content. In this sense the browser was – and remains – mostly an alternative to a TV screen, albeit one with considerably greater scope for interaction as regards the opportunities for clicking on various hyperlinks and providing feedback by filling in forms. But the websites visited remain unchangeable, controlled entirely by the owner who established the website.
The first advocates of Free Culture had by such hostility towards the existing copyright regime that they wished to abolish copyright entirely. We find a corresponding attitude in the work of Richard Stallman, whose ideological objective when establishing the Free Software Foundation (the precursor of open source software) was to entirely abolish copyright in computer code.
However, such a radical approach to copyright soon proved to be wishful thinking. It is certainly possible to continue to claim the legitimacy of copyright even though information is now primarily available in a digital format and distributed via the Internet. It has also turned out that the relatively small group of industries whose business models depend entirely on strong copyright protection have such strong shared interests and are willing to spend so much money that their lobby activities preclude any radical reformation of the copyright system.
Lawrence Lessig, a US professor of Law, also reached this conclusion. He saw that something else was required if the potential offered by open access to and sharing of cultural content were to be unleashed; a potential that he – and most people who do not belong to the traditional media and culture industry – was convinced was there. Lessig suggested an approach similar to that of open source software, aiming for a solution that did not reject the copyright system, but built on it. He suggested a “hack” of the system, just like the one Richard Stallman had executed with free software. Here, the term hack should not be regarded as an illegal and malicious form of forced entry into other computer systems, but as a clever solution to a problem, thereby returning to the original meaning of the word “hacking”.
The solution was, and is, to give the creator of content opportunities for opening up access to that content and allowing it to be shared – not by forcing them to do so by changing copyright laws, but by letting them do it through licenses. This is to say that the Creative Commons licences were invented along the same lines as open source licences.
The Creative Commons systems
The idea behind Creative Commons was to prompt voluntary contributions that would help build a shared resource – a creative commons – that could be used by all, not just for themselves, but also to support further development and improvements. The creative commons were to be seen as a contrast to the real, physical commons which ended in “tragedy” when farmers let them be grazed to such an extent that eventually there was nothing left to share.*3 Unlike its physical counterpart, the digital commons run no risk of being bled dry. For with digital information the fact that one person is using a copy of the material does not prevent anyone else from using other copies of the same material. Over-exploitation is by definition impossible. The challenge is, however, to offer the authors of creative content an incentive for opening up and sharing their content on the creative commons.
Creative Commons is a set of tools that enable content creators to share their content with others via the Internet. Specifically, these tools consist of the Creative Commons licenses, which in principle work just like any other license based on the creator’s copyright. According to copyright law, the creator holds the exclusive right to decide how others may use their work. And the licenses set out the conditions for how others can use the works.
Creative Commons licenses are solely concerned with copyright and do not address any other intellectual property rights such as trademarks and patents. This is to say that if you have published a work under a Creative Commons license you have not addressed whether others may use any trademarks you have created which are of commercial significance in connection with the work. The basic assumption is that others may not use such trademarks; using trademarks will require a separate licence or permission.
Creative Commons is based on strong copyright laws. No copyright equals no licences. And without strong copyright protection it would be impossible to enforce any licences in the event of a trial caused by someone abusing a Creative Commons work, venturing beyond the usage allowed in a Creative Commons licence. This relationship with copyright laws also means that the Creative Commons concept is entirely based on a principle of volunteering. No author is ever forced to release their work under a Creative Commons licence. Such decisions are only made when they appeal to each individual author. However, the Creative Commons approach rests on the fact that for the vast majority of authors it will actually make sense to make their content openly available, sharing it with others, and so the Creative Commons licences provide the tools required to do so, easily and elegantly.
If it is possible to speak of any “coercion” in connection with Creative Commons, this will only reflect the fact that market conditions will “force” authors to share their content. The people behind Creative Commons hope that in time the market for open, shared content will eventually grow to such a size that it will “force” more entities, particularly enterprises based on traditional “closed” business models, to try out Creative Commons licences on some of their content. They also hope that having more and more content available under Creative Commons licences will raise cultural institutions’ awareness of the fact that they must share their content if they wish to see it accessed and used by the general public.
All Creative Commons licences seek to meet the need for flexibility, transparency, and accessibility. The flexibility approach means that authors can piece together their own licence which perfectly reflects their wishes and business model. The demand for transparency means that the Creative Commons licences must be easy to understand for users; they must be able to access and use Creative Commons content without having to consult legal professionals beforehand. Finally, the focus on accessibility means that content under a Creative Commons licence must be easily accessible on the Internet. Accessibility in this sense does not just mean that it must be easy to download the content, but also that it must be simple to find. To ensure this, all Creative Commons licences adds so-called meta-data to digital content, and this allows users to include licence conditions when conducting searches via most online search engines, including Google.
Fair and square
It is crucial for the success of the Creative Commons concept that its licences are seen as being fair. In this context fairness does not just refer to the ceaseless efforts to incorporate the principles of flexibility, transparency, and accessibility in the licences; it also means that they seek to strike the right balance between the authors’ need to maintain a certain degree of control over their content even when it is released under a Creative Commons licence, and the user’s reasonable expectations of being able to use Creative Commons content in all the ways generally considered fair in present-day usage of the Internet, computers, tablets, etc. That balance is maintained through continuous revisions of the Creative Commons licences. The revision process is entirely open, and all stakeholders are encouraged to take part in the work. The fall of 2014 saw adoptation of version 4.0 of the licences.
All Creative Commons licenses provide users with certain basic rights. If you cannot accept giving your users these rights you should refrain from applying a Creative Commons licence to your content. If you do, all users will have the right to copy the work, distribute it, make it accessible to the general public, and to change the work as required in order to transfer it from one technical medium to another. Conversely, all licences also assume that users must abide by certain rules. Users may not use the work in ways other than those outlined in the license; the author will continue to hold the rights to any other form of usage. Users must always state who holds copyright of the works they access, distribute, etc. Users must also always ensure that any works distributed by them include a link to the original Creative Commons licence, thereby ensuring that new recipients of the work can also see and check the rules applying to usage of the work. Of course users cannot change the terms and conditions stated in the licence – not for themselves, nor for others. In every Creative Commons licence the author will keep his copyright. Using a Creative Commons licence does not transfer copyright to users.
Creative Commons licences have the benefit of being global in the sense that even when they exist in local languages the overall rules still apply to all Creative Commons licence, and when a given work is released under a Creative Commons licence it can be used anywhere in the world in accordance with the conditions laid down in that licence. Creative Commons licenses are in force for as long as copyright applies to the work in question. It goes without saying that when all copyright lapses, no Creative Commons licence is required, for by then the work will be in the public domain. This also, however, means that no other time restrictions apply. Once you have released your work under a Creative Commons licence it applies for as long as copyright applies to the work, and the licensor cannot revoke their licence. In this way, all users of works licensed under Creative Commons can be certain that they can use the works without running the risk of the original author getting “cold feet” and revoking the licence. The license is irrevocable.
The author decides
The Creative Commons licences have a built-in flexibility which means that they can be combined to include a range of conditions that perfectly match the author’s wishes and business model. Licensors can choose whether or not they wish to be credited in connection with the work.*4 You can also choose that your work may only be used for non-commercial purposes. Finally, you can allow your work to form the basis for derivative work and stipulate that any users who make such derivative works must also “share alike”; i.e. release their derivatives under the same Creative Commons licence.
The opportunity for distinguishing between commercial and non-commercial usage often prompts questions. However, the distinction between commercial and non-commercial use is normally quite uncontroversial. When a private individual wishes to use a Creative Commons licensed photo on their private weblog, when a scientist wishes to use Creative Commons licensed data in their research, when an NGO wishes to use Creative Commons licensed music as part of a campaign all such uses clearly fall within the realm of non-commercial use. If, however, a company wishes to use Creative Commons-licensed material in a brochure, if a musician wishes to record Creative Commons licensed compositions and to make money from selling that music, or if a TV station or movie theatre wishes to use Creative Commons licensed documentaries against a fee, then these are all clear-cut examples of commercial use of the materials. The Creative Commons organisation recognises that grey areas exist and spends considerable time and effort exploring the definitions of commercial versus non-commercial usage. In preparing for version 4.0 of the Creative Commons licenses the community discussed whether the distinction should be left out altogether. The result was to keep the distinction.
The author’s exclusive rights also include the right to create derivative works. The Creative Commons licenses can be used to allow users to create derivative works, and this particular right is often quite crucial for achieving the real objective behind providing access and sharing content. If users do not have the right to create derivative works it will, in the vast majority of cases, not be possible to create mash-ups, improvements, and other things that contribute to the creative commons.
If a licensor has allowed users to create modifications of their work in order to ensure an expansion of the creative commons it is only natural that they should want such modifications to also become part of the Creative Commons licensed work. To ensure that the work remains a unified whole it is possible to stipulate that the right to create derivative work is only granted when users who create such derivative works make them available to their users on the same terms as the original work. This “share alike” condition is essentially the same as the “copyleft” condition applied under many open source licenses. It is important to emphasise that the “share alike” condition only applies to users who choose to distribute their modifications. You do not need to make your modifications available to others, but are welcome to keep them to yourself. The “share alike” condition only enters into effect when you redistribute works, and only for the individuals to whom you choose to redistribute them.
Usage and spread of Creative Commons
As an author or creator – or as a cultural institution holding the rights to content – you can choose to combine the Creative Commons different terms. The range of possible combinations is quite large, and any cultural institution will of course need to carefully consider which conditions are necessary to achieve the desired results, and which might directly help bringing about those results. Once a choice has been made it is very easy to attach the license terms to the work. Given that the vast majority of works will be available in a digital format you will usually simply visit a Creative Commons website to build a your license. On the website you will find an online licence generator that allows you to piece together the right licence by means of a few clicks.
The licence conditions selected will then be generated as HTML code or some other format capable of being “cut and pasted” into the digital file or placed on websites that the users will visit when accessing the work. The system also generates a small graphic file that describes the licence conditions in a pictogram format.
The pictograms make it very easy for potential users of Creative Commons licensed content to get an overview of how that content can be used: Is commercial use allowed? What about derivative works? – and so on. Clicking on a pictogram will take readers to a more detailed, but still straightforward description of the licence conditions. And if you should wish to read the actual licence conditions, phrased in legal terms, you can click your way onwards to this information. Finally, the licence conditions will be linked to the digital work in such a way that most major search engines, such as Google, allow you to specify searches to include only works that can be used under a Creative Commons licence to match your requirements.
All in all the Creative Commons licences offer unique opportunities for applying licence conditions to content, giving users easy access to the material. Creative Commons licences ensure that the material can be used legally and without contravening copyright law. The fact that Creative Commons licences are based on Internet technology, and the vast ocean of information and content available online makes it very likely that users can find exactly the right content to be used in precisely the way they wish.*5
Today Creative Commons is the de facto standard for licensing open content. Versions of the licence exist in almost 130 countries, and its legal standing and recognition – in the market place and politically – cannot be disputed. Creative Commons licences are used by the EU, the US government, large corporations such as Maersk, and countless NGOs and cultural institutions across the world.*6
Creative Commons is a means to an end, not an end in itself. As a licensing tool, Creative Commons points directly to an objective that ought to be a perfect fit for Danish culture institutions: Placing as much content as possible at the public’s disposal on the most open terms possible, not just for Danish citizens but for people worldwide.
*2 See e.g. www.flickr.com/groups/mashups/
*3 See en.wikipedia.org/wiki/Tragedy_of_the_commons
*4 This may, however, not be possible under European copyright law insofar as attribution is part of the so-called moral rights.
*5 Creative Commons can also be used if a cultural institution wishes to make content available without any restrictions whatsoever. For example, an institution might elect to have no association with the content in question to avoid any PR-related issues if that content should subsequently be used in unsuitable contexts or if the content is modified in a manner that does not match the institution’s marketing profile. In such cases Creative Commons licenses make it possible to make content that is still subject to copyright law available on terms that come as close to the public domain as the law allows. This is done by selecting the Creative Commons public domain dedication license, or CC0 as it is also known.
*6 Examples of Creative Commons licenses within the realm of culture can be found on the website