Thursday, January 27, 2005

Send 'free' to work: Creative Commons brings copyrights into the digital age

Creative Commons' copyright protections are perfect for digital age pioneers looking for new ways to distribute their creative work.
By Linda Seebach

“Some rights reserved.

That's the watchword of Creative Commons, a non-profit organization dedicated to building an alternative framework for copyright protection. A Creative Commons license, which allows the creator of original work to specify how it can be used, is both more faithful to the purpose of copyright than current law and better suited to the realities of a digital age.

Creative Commons, established in 2001, is based at Stanford University, where it shares "space, staff and inspiration" with the Stanford Law School Center for Internet and Society. Its first project, released in December 2002, was a set of free copyright licenses. Copyright holders -- since 1978, copyright in the United States has been automatic -- choose what uses of their work they want to allow and then issue their work under a Creative Commons license spelling out those uses.

As the Frequently Asked Questions (FAQ) puts it, the licenses "will help people tell the world that their copyrighted works are free for sharing -- but only under certain conditions."

For example, one photographer might opt for "attribution" -- do anything you like with my pictures, just credit them to me. A professor might choose "non-commercial" for a paper he hopes will be widely used in course packs. A songwriter may be happy to have her work performed as she wrote it but not want it used in derivative works.

Or, as the Web site explains, people can choose the "share alike" option, which allows others "to distribute derivative works only under a license identical to the license that governs [the original] work."

Anyone familiar with the Free Software Foundation's General Public License will recognize the model and also knows how powerful it can be when a large number of creative people freely contribute to a commons. Creative Commons designed its licenses for people "who understand that innovation and new ideas come from building off existing ones," it says in one of the Web site's instructional cartoons.

The purpose of copyright, according to the Constitution, is to “promote the Progress of Science and useful Arts.” To that end, the first copyright law in 1790 set the term of copyright at 14 years with the possibility of one 14-year extension.

Authors who believe that's sufficient can make use of another Creative Commons project, the Founders' copyright, available since 2003. Within existing law, it mimics the state of affairs at the country's birth. One of the first publishers to sign on was the technical publisher O'Reilly and Associates. The decision was both "pragmatic and symbolic," said founder and CEO Tim O'Reilly. "It lets publishers like us free up great books after they've lost profitability. And it lets us cast a virtual vote for a more reasonable, moderate form of copyright."

But Congress has been moving in exactly the opposite direction. Lawrence Lessig, Creative Commons chairman of the board and law professor at Stanford, wrote in his January column for Wired magazine that in the last 40 years, Congress has extended the term of copyright for existing works 11 times. The most recent extension, the 1998 Sonny Bono Copyright Term Extension Act, tacked on an extra 20 years so that some copyrights in the United States reach back as far as 1923 and won't expire before 2019.”

In a op-ed that appeared in the Los Angeles Times Jan. 12, Lessig explained that in 1930 there were 10,027 books published in the United States, and by 2001 only 174 of them were still in print. The other 9,853 could still be under copyright, but there is essentially no way to find out. First, a book had to be registered to be copyrighted, and then the copyright had to be renewed. "At least half of all works published historically never took the first step; almost 90 percent never took the second," Lessig said.

It is largely the owners of huge blocks of copyright material -- record companies, movie studios -- that push for ever longer periods of protection. Maybe most of what they own is worthless, but the few gems that remain valuable are motivation enough.

But the combination of digital reproduction and the Internet has doomed that way of doing business. The entertainment industry's business model consists of persuading Congress to pass harsh laws like the Digital Millennium Copyright Act of 1998 and then suing a few of their best customers in hopes of terrifying the rest. That doesn't sound like a plan with a future.

It would be much more public-spirited, and ultimately more profitable as well, to figure out new ways to sell people what they want to buy.

Songs, for example. In 2004, more than 140 million individual songs were sold by iTunes and similar services, according to Nielsen SoundScan. A year earlier, it was less than 20 million, and given how many people unwrapped iPods or their cousins this holiday season, the number will undoubtedly rise. If the song you want costs 99 cents or less, it's hardly worth the trouble of stealing it.

Full CDs? That might be more of a problem, but it has always been possible to borrow recordings from the library or from your friends and copy them. Digital copying offers better quality, and file-sharing offers more convenience, but it also saves money throughout the distribution chain. More than five million albums were sold through downloads in 2004, a category that wasn't even tracked in 2003.

There's no way to estimate how many sales are lost when people share files of copyright material. Even if pirating copies is wrong, it doesn't follow that every pirated copy represents a legitimate copy that would have been sold but wasn't. Maybe the theoretical purchaser has already maxed out her credit card or her music budget for the month. Or another is checking out an unfamiliar artist whose work he might buy in the future if he discovers he likes it.

In addition to asking, "What would people buy if we offered it for sale?" the owners of intellectual property should also ask, "What could we give away that would increase sales of what we sell?" If you think that's a silly question, consider the alternative weeklies that flourish in most cities. They give away the tangible product, the newspaper, to create an audience that their real customers, advertisers, will pay for.
con·cept: Send 'free' to work: Creative Commons brings copyrights into the digital age