Oct 212013

sean - 150x150Creative Commons, the global network of non-profit organizations best known for their promotion of standard-form copyright licenses that allow creators to voluntarily waive certain exclusive rights and share their content more easily with others, has thrown its weight into the global push to expand users rights in copyright reform. Last week, the organization, through Creative Commons Headquarters and blessed by its Board of Directors, released a statement endorsing “ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.”

(See also, blogs by local affiliates in Poland, the Netherlands, and Ecuador, blogs by Tim Volmer, and the EFF; and a news story in the National Journal.)

The statement signals that the CC network play a larger role in countering the trend toward “maximalism” in copyright reform around the world – that is, the promotion of change in copyright laws solely in the direction of expanding owners rights without correlative increases in the rights of users. The danger of this path was signaled in the 2011 Washington Declaration on Intellectual Property and the Public Interest – an influential roadmap for progressive IP policy reform in the new millennium. The Washington Declaration recounted:

 The last 25 years have seen an unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders. . . . Over the same period, broad coalitions of civil society groups and developing country governments have emerged to promote more balanced approaches to intellectual property protection. These coalitions have supported new initiatives to promote innovation and creativity, taking advantage of the opportunities offered by new technologies. So far, however, neither the substantial risks of intellectual property maximalism, nor the benefits of more open approaches, are adequately understood by most policy makers or citizens. This must change if the notion of a public interest distinct from the dominant private interest is to be maintained.

Specifically on the issue of Users Rights, the Washington Declaration described:

Limitations and exceptions are positive enabling doctrines that function to ensure that intellectual property law fulfills its ultimate purpose of promoting essential aspects of the public interest. By limiting the private right, limitations and exceptions enable the public to engage in a wide range of socially beneficial uses of information otherwise covered by intellectual property rights — which in turn contribute directly to new innovation and economic development. Limitations and exceptions are woven into the fabric of intellectual property law not only as specific exceptional doctrines (“fair use” or “fair dealing,” “specific exemptions,” etc.), but also as structural restrictions on the scope of rights, such as provisions for compulsory licensing of patents for needed medicines. Despite their importance in countering expansive trends in intellectual property, limitations and exceptions are under threat, especially from efforts to recast international law as a constraint on the exercise of flexibilities in domestic legislation. The signatories strongly support efforts to defend and expand as appropriate the operation of limitations and exceptions in the years to come.

Many Creative Commons affiliates were part of the drafting of the Washington Declaration and are actively engaged in copyright reform debates around the world. But has CC’s Tim Vollmer described in a submission to the U.S. Copyright Office:

Creative Commons has always been slightly reticent about its role in the copyright debate, even though many of its greatest supporters are vocal in the copyright reform movement. Today, we’re adopting an unambiguous position: open licensing is a fantastic tool, but it’s not a substitute for substantive improvements in copyright law worldwide.

The statement grew out of a grass roots mobilization of Creative Commons Global Affiliates, which operate in over 80 countries around the world. The request was formally made by affiliates at the Creative Commons Global Summit 2013. That request, in turn, followed from the participation of many affiliate leaders in advocating for increased users rights in copyright reform debates domestically and internationally, including through participation in the Copyright Users Rights Track of the annual Global Congress on Intellectual Property and the Public Interest. At the Second Global Congress on Intellectual Property and the Public Interest in Rio, December 2012, a meeting of CC Affiliates discussed how they often participate in copyright reform debates as representatives of organizations other than their local Creative Commons affiliate. The affiliates reported on widespread ambiguity about whether affiliates are to act as stewards only of the CC licensing tools, or rather can act as stewards of the commons of creativity that CC licenses are but one means to promote.

The ambiguity among affiliates follows in part from some public statements by CC’s founder, Larry Lessig, who once referred to the U.S. fair use doctrine as “simply mean[ing] the right to hire a lawyer to defend your right to create,”(Lessig 2004, p. 141–142), and later as “a clumsy and expensive legal defense.” But Lessig’s more recent presentations on copyright reform have embraced fair use specifically, and users rights more generally, as a key element of a needed global copyright reform agenda. Indeed, in his presentation at the CC Global Summit in Argentina, given while affiliates were drafting their request for a public statement, Lessig explained the value of the U.S. legal system – including in Supreme Court opinions – embracing fair use as a “right” of users. And he then noted a key problem in the rest of the world – which CC licenses cannot fix – is the lack of similarly expansive users’ rights.

It is these differences in laws [that are the problem]. The rights here are different. The freedoms here are different. And my view is they shouldn’t be different. This cultural form of expression – this creativity through the capacity to remix – should be a general right. A general human right.

Lessig also agreed with a key point that found its way into the statement: “Creative Commons licenses are not a solution to this problem,” he explained. “In the rest of the world, licenses cannot provide the freedom that the culture should recognize. . . the law must change.” (25:12). “CC is not the solution… The problem requires real change in real law.” (27:17).

Similarly, the CC statement embraces licenses as a means to a larger end that Creative Commons should be pursuing.

[T]he CC vision — universal access to research and education and full participation in culture — will not be realized through licensing alone.” It rejects the suggestion that “the very success of CC licenses means that copyright reform is unnecessary — that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. . . CC licenses are a patch, not a fix, for the problems of the copyright system. . . . However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.

Many of the CC Affiliates who were leaders in the mobilization that created the impetus for the CC Copyright Reform statement will be meeting to chart strategy and build infrastructure for the work ahead at the Third Global Congress on Intellectual Property and the Public Interest in Cape Town, South Africa in December 2013.

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