Alternatives to CopyrightBy Eva Garmpi, LLM candidate

KLS LLM Dissertation September 2006

Table of Contents

Page

Abstract

Acknowledgement

Introduction 1

Chapter 1 – Why there is a need for alternatives to copyright? 6

Changes in copyright’s duration 6

Changes in copyright’s scope 9

Digitisation & Change in copyright’s reach and the force of

regulation

10

Change in the concentration of media and privatisation 14

Chapter 2 – Customising Copyright: Creative Commons

licensing scheme

18

Advantages of CC’s licensing scheme 21

CC’s lack of ethical position 24

a) CC is failing to set minimum standards of freedom 24

b) CC’s ideology is reactionary 27

CC’s lack of political position 30

CC’s lack of enforcement ability 33

CC’s lack of common sense position 36

Chapter 3 – Imagine a world without copyright 41

Abolition of copyright and the dominance of the public

domain

43

The market and the first-mover advantage 44

Temporary protected usufruct 48

Subsidies 54

Conclusion 59

Bibliography 62

Abstract

Copyright law is a sub-division of intellectual property law, a legal device, which is designed to offer protection to original works of authorship that are fixed in any tangible medium of expression. Copyright protection vests immediately and automatically upon any original creative output and confers ownership in the form of limited monopoly upon the authors of the creative material. Notwithstanding the main reason for the existence of copyright protection, that is the need to secure authorial creativity, as the main source of cultural upgrade, copyright has been transformed into a vague romantic idea, superseded by these days reality. The substantial and narrow alteration copyright law has recently undergone in terms of its duration, scope, change in reach and force of regulation has tremendously modified its fundamental economic and cultural purpose and has provoked inconsistency and imbalance with respect to the societal understanding of the law. Moreover, the emergence of the Internet, this super highway of information that offers a tremendous amount of material, has challenged copyright system’s foundations. Indeed, as we enter the age of digital commerce, digitisation creates greater concerns about copyright law. A proper balance between the protection provided for right holders and the wider public interest is yet to be found.

The foregoing alterations concerning the substance of current copyright law and the many economic and social concerns raised within nowadays reality, have called for copyright’s redefinition and reformation, or even to an extreme, for copyright’s abolition. A series of alternative mechanisms have been already suggested. In approaching the matter, I will first consider the reasons for which copyright alternatives have been a hot topic of late. The second axis of my argument will be concerned with presenting and assessing the advantages and disadvantages of one of the most fast-growing alternatives of copyright’s system, that is, the Creative Commons licensing scheme. The assessment will show that Creative Commons is probably the only successful and workable alternative structure that exists at the moment and that most of its alleged disadvantages derive from simple misunderstandings of the legal system it launches. Finally, the third axis of my argument will assess the pros and cons of an entirely new model, which has been recently suggested, as a replacement to current copyright regime and was presented by Joost Smiers and Marieke van Schijndel, in an essay titled “Imagining a world without copyright”. Throughout the evaluation of this latter alternative structure, I will basically challenge its foundations and conclude by seeking to prove that, albeit very compelling, the new model has not been developed comprehensively and fails to persuade us about its viability and enforceability in nowadays reality.

Acknowledgements

I would like to express my gratitude to all these people who helped in the materialisation of this paper. Initially I would like to thank my family for the opportunity they offered me, to enhance my knowledge in law and to stand more firmly upon my decision to become a lawyer. Moreover I would like to thank my friends for their support throughout this important effort and finally I would like to send my kindest appreciation to my professor and supervisor Mr Alan Story, who introduced me to the creative world of Intellectual property law and who taught me the value of having and freely expressing my opinion on things.

Thank you all very much.

Introduction

To commence with the analysis of this paper, a brief introduction and a fundamental

understanding of the main concept and general principles of copyright law is deemed

to be essential.

Copyright law dates back to the 17th Century, when for the first time piracy,

that is, the unauthorized use or reproduction of copyrighted material, threatened the

economic investment of printers and publishers. At that time the protection of the

laborious efforts of authors was of little significance and the possibility to reprint

books effortlessly and cheaply had raised insecurity amongst the publishing circles in

society. Copyright protection has always been intertwined with developments in

reproduction technologies starting with the evolution of the printing press, but it was

not until the 1709 Statute of Anne, which passed into law on 10th April 1710, that

copyright in literary works was parliamentary protected through statutory regulation

granting exclusive rights to authors and protecting consumers from publishers’ control

over printed works that had been already sold. Prior to this, common law had been the

sole regulatory power over disputes respecting the rights to the publishing of books1.

In general parlance, copyright law constitutes the legal framework that offers

protection in the form of a limited monopoly to the creative and arduous expression of

thoughts and its ultimate manifestation in fixed tangible forms. It is the law that

regulates the accessibility of cultural and public possessions. Copyright law provides

the author of the cultural product with an exclusive or sole property right for a limited

time over the fruits of his or her labour. The aforementioned exclusivity involves the

exercise of a series of certain acts such as a) the creation and sale of copies of the

work (including, typically, electronic copies), b) the public performance of the work,

c) the translation of the work into another language d) the importation or exportation

of the work, e) the sale or assignment of these rights to others, f) the creation of

derivative works. The overturn to the foregoing “property-like”2 restrictions is the act

of copyright infringement.

1For an overview of the history of copyright see R.E.Schecher, “History of Copyright” contribution to Encarta Reference Library 2004 & S, Edward, The Illustrated Story of Copyright (New York: Thomas Dunne Books, St. Martin's Press, 2000). Moreover see: http://www.intellectual-property.gov.uk/std/resources/copyright/history.htm. 2A.Story, C.Darch, D.Halbert, “The Copy/South Dossier: Issues in the economics, politics, and ideology of copyright in the global south” (2006) Copy/South Research Group p 9.

National copyright acts protect the right holders of literary, scientific and/or artistic

works against the unauthorized reproduction and dissemination of their work.

Supplementary laws also protect performing artists, filmmakers, broadcasters, and

producers of audio works3. However, copyright does not extend to all forms of

copying. In most jurisdictions the public’s access to a copyright owner’s monopoly is

permitted under certain circumstances which are statutorily dictated.

Copyright protection basically involves the expression of an idea, not the idea

itself4. The aforementioned distinction has given birth to the idea-expression divide,

according to which only the expression of ideas, information or function is

protectable5. However, the generalisation that characterises the abovementioned

dichotomy, does not apply perfectly to all circumstances of the rather sophisticated

reality. A series of judicial decisions have proved that the tangible form of expression

of ideas does not always constitute the subject-matter of copyright protection6.

After the end of the copyright term, the work falls into the public domain and

can be used by anyone. Yet, nowadays authors scarcely retain their copyright in their

works. Given that copyrights may be sold, granted, or relinquished, it is very often

that a copyright holder will contractually transfer (assign) his or her copyrights to a

large business, which far beyond the author’s capabilities, has the production and

marketing power to successfully launch and disseminate the cultural product to the

public. The payback for the aforementioned assignment will most probably be

royalties, publication or merely a certain fee7.

The international character of copyright law can be traced back in the 18th and

19th century, when copyrights were being violated by vicious booksellers, who at that

3Such as Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961, http://www.wipo.int/treaties/ip/rome/index/html. 4Hollinrake v Truswell (1894) 3 Ch 420, 63 LJ Ch 719, 7 R 568, 38 Sol Jo 706, 71 LT 419, 10 TLR 633, CA.5For example, “if a book is written describing a new way to organize books in a library, a reader can freely use that method without being sued and can describe it to others; it is only the particular way in which the original author described that process that is protected by copyright”. Quoted in “Idea-Expression Divide” BambooWeb, Open Content Encyclopedia. http://www.bambooweb.com/articles/i/d/Idea-expression_divide.html . 6For instance in Greene v Broadcasting Corpn of New Zealand [1989] RPC 469 the idea for the format of the “Opportunity knocks”, taken in isolation, was held not to be the subject of copyright. Jennifer Davis, Intellectual property law, (Oxford: University Press, 2005, second edition) 96pp.7With regard to employees who create copyrighted works, it is their employer in most cases, who will ultimately own the copyright. In the United States, if the work is a "work for hire", the original owner of the copyright may be the employer of the real author, rather than the author him-herself. Moreover, in English Law the Copyright Designs and Patents 1988 stipulates that where a work in which copyright subsists is made by an employee in the course of his or her employment, the copyright is directly conferred to the employer.

time had fallen in an illegal commercial bargain of exporting cheap editions to foreign

markets and of importing cheap editions from abroad to compete in the domestic

market8. In the field of international law the Berne Convention 18869 with its

numerous amendments and updates has been the most far-reaching regulatory legal

body that first established the recognition of copyrights between sovereign countries

and controls a number of international agreements on copyright. Among many other

things, the Convention provides for an automatic copyright that does not require

registration, declaration or other formalities. In this international vein, another

significant regulatory body is the Rome Convention, which provides for the

Protection of Performers, Producers of Phonograms and Broadcasting Organizations10.

Finally, international agreements, such as the 1996 Copyright Treaty11 and

Performances and Phonogram Treaty12, released by the World Intellectual Property

Organization (WIPO)13, have formed further elaborations of the aforementioned

conventions and have provided additional protection for copyright deemed necessary

in the modern information era. National legislation in the United States, in the

European Union and Australia is largely in conformity with these two latter

international treaties as a response to perceived and actual threats posed by

cyberpiracy.

In light of the aforementioned brief historical flashback, it becomes apparent

that copyright has gone hand in hand with the history of technological evolution and

creativity and has occupied people in a national and international level. The existence

of copyright regulations throughout the years, while a series of technical

developments, such as the radio, film, TV, video and audio recorders, photocopiers

and computer hardware and software, was taking place, have made some people14

believe that, irrespective of contemporary advances in technology, copyright remains

the primary way to trigger creative inspiration, in the lack of which, much of our

cultural heritage would have been absent15. This rather optimistic conceptualisation of 8A.Story et al. (2006, 9pp).9Berne Convention for the Protection of Literary and Artistic Works 1886 (1971 revision with 1979 amedments).10Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961, http://www.wipo.int/treaties/ip/rome/index/html. 11WIPO Copyright Treaty: http://www.wipo.int/treaties/ip/wct/index.html.12WIPO Performances and Phonograms Treaty: http://www.wipo.int/treaties/ip/wttp.13World Intellectual Property Organization: http://www.wipo.int/.14Mary Bono, Jack Valenti, Charles Gates, Ryan C. Henry in http://en.wikipedia.org/wiki/Copyright. (accessed 14/7/2006). 15See, e.g., JC. Ginsburg, “Four Reasons and a Paradox: The Manifest Superiority of Copyright over Sui Generis Protection of Computer Software”, (1994), 94 Colum.L.Review. 2559.

copyright takes for granted the social and judicial rightness of copyright’s concept and

perceives the system, as the sole legal administrator of our public and cultural legacy

throughout history and all over the world.

On the other end of the spectrum, there are scholars, who refuse to accept that

copyright, as presently constructed, is essential and search for new directions in

copyright law. The critiques fall basically into two camps. The first group claims

copyright’s inherent injustice and invalidity and advocates its abolition16. By

anticipating the “death of copyright”17 and strongly challenging the direction

copyright law is taking mankind18, critics in this camp argue that current copyright

system has undermined its own goal and has become an utterly inefficient rewarding

legal mechanism, which instead of serving the average artist, sides with the ends and

benefits of cultural conglomerates19. Yet the second group adopts a rather moderate

thesis. It detects the disadvantages of the system, particularly copyright’s incapability

to adjust in the new world the Internet has introduced and without rejecting the

system, it seeks to optimise and adjust copyright in nowadays digitised reality20.

The abovementioned differing factions, favoured on one hand by those who

encourage the “all rights reserved” perception of copyright system and those who

oppose copyright and either advocate its abolition, or its optimisation, have triggered

a long-lasting war, “a copyright war that lobbyists have won by convincing the world

that the constant value of copyright is now under threat”21. But is this “traditional”

value indeed under threat? Are all these scholars who advocate copyright’s

replacement a bunch of vicious, ill-considered controversialists, who just want to

blow at copyright’s bastion? 16This latter purpose is served by Joost Smiers and Marieke van Schijndel’s alternative model, recently presented in an essay titled “Imagining a world without copyright”. M. van Schijndel & J. Smiers, “Imagining a World Without Copyright” (2005) AHRB Copyright Research Network Conference, Birkbeck, London.17D.Nimmer, “The End of Copyright” (1995) 48 Vanderbilt Law Review 1385, 1420 & GS Lunney Jr, “The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act” (2001) 87 Virginia Law Review 813 & P.Jaszi, “Is This the End of Copyright As We Know It?”(Talk given at the Nordinfo Conference, Oct. 9-10, 1997, in Stocholm, Sweden. The text is available at webserver.law.yale.edu/censor/jaszi.htm).18L.Zemer, “Rethinking Copyright Alternatives” (2005) International Journal of Law and Information Technology, Vol 14, No 1.19J.Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (London: Harvard University Press, 1996)142pp.20In this vein, a revolutionary mechanism has been launched, called Creative Commons (CC). CC constitutes one of the most far-reaching reorientation of copyright system. Seehttp://www.creativecommons.org/,http://creativecommons.org/learn/aboutus. Similar organisations exist as well, such as the Public Library of Science), www.publiclibraryofscience.org 21L.Lessig, “The Creative Commons” (2004) 65 Mont.L.Rev.1, 2pp. (From now onwards L. Lessig (2004a)).

Whatever the alleged benefits and value of copyright are, will not be presented

generously in this paper. A closer look will rather be given at some of the main

disadvantages of current copyright system and at two alternative mechanisms

presented recently to replace the current copyright system, their advantages and

disadvantages.

Chapter 1

Why there is a need for alternatives to copyright?

Copyright is not “the rock of Gibraltar, it has not remained fixed over the ages”22.

Instead, copyright has been constantly changing and expanding. In fact copyright has

undergone a substantial and prescriptive alteration in terms of its duration, scope,

change in reach, force of regulation and change in the concentration of media23. Of

course the growing popularity of the Internet, computer networks and the World Wide

Web (WWW) has not been without any challenge to copyright mechanisms. The

ramifications of these alterations, some of which are the gradual erosion of the

concept of the “public domain”, the inconsistency and imbalance that exist in human

societies respecting the understanding and obedience of the law, the squashing of

dialogue in democratic societies as a result of the over-privatisation copyright law has

created over cultural products, as well as the incapability of copyright to adjust to

nowadays constantly evolved digitised reality and the incapability to provide solutions

to non-Western countries, are some of the reasons that urgently call for its redefinition

and reformation24 and for some scholars even to its abolition25.

Changes in copyright’s duration

In basically all jurisdictions copyright law is oriented towards two different directions.

Copyright law has an economic purpose and a cultural dimension26. The economic

purpose has an “immediate effect”27, which involves the incentivisation and rewarding

of those who contribute to the creation of culture, while the cultural dimension forms

the “ultimate aim”28, that is to say, the stimulation of creativity for the general public

good.

22L. Lessig (2004a, 2p).23L.Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: The Penguin Press, 2004) Ch.10, 116-168. (From now onwards L. Lessig (2004b)). 24Advocates of copyright law reform: Mary Bono, Robin Gross, Laurence Lessig, Eben Moglen, Richard Stallman, Jack Valenti. http://www.bambooweb.com/articles/c/o/Copyright.html .25J. Smiers et al, (2005).26H.L. MacQueen, “Copyright Law Reform: Some Achievable Goals” (Dissertation, Edinburg: University of Edinburg, 2005) 17-29.27D. S. Karjala, “Comment of US Copyright Law Professors on the Copyright Office Term of Protection Study” (1994) 12 EIPR.28D. S. Karjala, (1994).

The remuneration of authors is a good thing. However the means chosen by

copyright law to secure this fair return, that is, by granting authors almost endless

monopoly rights, has ended up to be an evil that should last not longer than it is

deemed essential for the security of general public good29. Once, there was a balance

between the protection provided for right holders and the wider public interest. For

instance, in 1790, the Congress enacted the first copyright law, which provided for a

fourteen years renewable copyright term assuring that the maximum terms of

copyright would be granted only for works where they were wanted30. At that time a

free-to-take culture was lying in the public domain and this was because copyrights

were expiring relatively quickly and were free for people to build upon them and thus

contribute to cultural upgrade. Yet the concept of the public domain, the “lawyer-free

zone”31 that functions as a pool for future creators, is rather gradually being eroded

than enriched. This is due to copyright terms’ extensions that have inexorably

increased over the past two centuries halting thus creativity and provoking a series of

problems that have proven copyright to be injurious to its own purposes and welfare.

How can copyright serve its initial cultural purpose, when there is not anymore public

domain? And do the authors really care if their creative works will grant any benefits

to their distant descendents?

Indeed, nowadays copyright system has been tremendously lengthened and

has replaced the notion that copyright should expire and that works should fall into

the public domain. As a result of that, the potential of culture to be built upon the

cultural output, which is gathered in the large pool of human knowledge, is

diminished. For instance, United States copyright law copied the European life-plus-

70 regime32 and by extending its term eleven times the last forty years it has

established eventually a system of perpetual copyright with an average term for

corporate works of ninety-five years33. What is more, since the United States

29T. B. Macaulay, “Duration of Copyright” to the House of Commons, 1841.30L.Lessig (2004b, Ch.10, 135pp). 31L.Lessig, (2004a, 2pp). 32Berne Convention provided for a minimum term of copyright protection of the life of the author plus 50 years, but parties were free to provide longer terms of protection. The EU introduced longer terms of protection with the Copyright Term Directive (EC 93/98), which harmonised the term of copyright protection and whose final goal was to ensure a uniform term throughout Europe. Section 1par1 Copyright Term Directive (EC) 93/98.33The latest of these extensions was introduced by Sony Bono Copyright Term Extension Act 1998, which constituted major amendment of US Copyright Act 1976. Sony Bono Copyright Term Extension Act extended copyright protection to the duration of the authors’ life plus seventy years for general copyrights and ninety five years for works made for hire. Sony Bono Copyright Term Extension Act 1998, unlike EU, copyright extension legislation, is not retroactive.

abandoned their “sensible” renewable copyright system in 1976, the automatic way of

assuring whether works have passed to the public domain or not, vanished.

“The public domain is orphaned by these changes in copyright law”34. There

are cases, where desirable cultural works that would have otherwise been created,

were adjourned, because of the copyright in underlying works. The situation

deteriorates even more, when new authors with difficulty manage to negotiate a

licence with current copyright holders35, or worse, when copyright’s exclusive rights

are conferred on remote descendents, who unreasonably exploit the creative skill and

effort of someone, whom probably hardly remember.

In addition, longer periods of copyright protection mean higher cost to the

consuming public for works that would otherwise be in the public domain. According

to economic theories, under non-monopolistic circumstances in the market place, the

public price for popular works, through competition, decreases to the marginal cost36

of production. Conversely, in a market where monopolies reign, especially if the work

is under copyright regime, which means that the marginal cost of production will

additionally include the royalties owned to the copyright owner, the price of the work

can be expected a lot higher than the marginal cost of production. Consequently there

is not any possibility for the public to pay the same for public domain works as for

copyright protected ones37.

Judging from the aforementioned, it seems that copyright’s lengthened terms

of protection constitute a great impediment to the public’s thirst for creative

inspiration and generate loss in the public domain. Given that this loss is not balanced

with a greater incentive for further creation, it becomes clear that public benefits

under lingering copyright protection, cannot outweigh the costs and serve the general

public good, which is copyright’s main goal38.Although copyright’s “infinite”

duration does not seem to constitute on itself a competent reason to start rethinking

copyright alternatives, a long list of other copyright deficiencies, whose analysis

follows, can explain the need for alternatives.

34L.Lessig (2004b, Ch.10, 116-168). 35Fifty years ago, Professor Chafee pointed to examples in which the veto power of copyright in an author’s descendents deprived the public of valuable works. Chafee, “Reflections on the Law of Copyright” (1945), 45 Colum. L. Rev. 719pp.36Marginal cost, or else differential or incremental cost means the increase or decrease in costs as a result of one more or one less unit of output. J.Chrysovitsiotis & J.Stavracopoulos , Dictionary of commercial-banking and financial terms (Athens: Papazisi Press, 2001)618pp.37D. S. Karjala, (1994).38D. S. Karjala, (1994).

Changes in copyright’s scope

The scope of copyright is “the range of rights granted by the law”39. These rights are

vested in the copyright owner to exercise them against a range of “original creative

expressions”40, which constitute the subject-matter of copyright law protection. The

scope of copyright, although difficult to sketch its contours, has been widely

expanded throughout the years in an attempt to serve a wider field of authorial

interests and to comply with the new changes technology introduced. This overly

expanded scope of copyright has gained as well an international recognition. Legally

binding International treaties provide for relevant changes in the law and oblige their

member states to show compliance with these changes by adapting their national laws

accordingly41. Nowadays copyright covers practically any creative work that is

reduced to a tangible form and more significantly grants authors the exclusive right to

control all copies of their work, a right much more extended than the previous one

covering only the publication of copyrighted works.

For instance, in 1790, US copyright law offered a rather narrow protection

basically oriented to cover publishers’ interests. The protection involved the

prohibition, under certain conditions, of third parties to republish maps, charts and

books. The conditions were first that the original work would have been registered,

second that there would be copies of the work deposited in a library and third that the

work would carry the © symbol so as to inform the world about its state42. However,

nowadays a dramatic change to all these procedural parameters has taken place43.

Exclusive rights do not only cover printing, reprinting, publishing or vending of a

creative work but any copy of this work, a control that “viciously” extends to

derivative44 works as well. What is more, all the procedural steps previously taken by

creators to secure a copyright in their works, have been now replaced by a rule 39L.Lessig (2004b, Ch.10, 136pp). 40Namely, Literary works, movies, musical works or sound recording, painting, computer programs, or industrial designs for a defined period of time.41On 11 December 2005 149 countries were members of the World Trade Organisation (WTO), the only global international organization dealing with the rules of trade between nations. Through the Trade Related Aspects of Intellectual Property Rights (TRIPS, part II) agreement, WTO requires parties to comply with the substantive provisions of the Berne Convention (section II) for the protection of literary and artistic works. 42L.Lessig, “The Creative Commons” (2003) 55 FLLR 763.43This change has been the result of an “unfortunate” transformation, as Laurence Lessig puts it, in the 1909 US statute, L.Lessig (2003).

imposing to creators the acceptance of the protection offered by the law, whether they

want it or not45. Copyright nowadays is not but just a default “all rights reserved”

order covering all possible uses of a copyrighted work.

At this point, one might wonder, whether this procedural abolition was an

effort to simplify things for absentminded or probably lazy authors, who otherwise

would forget to secure their creative works or whether it was an attempt to create

absolute control in a free culture zone, where authorial control was just a reduced

detail. Given that creative process in the cultural industries is now governed by a few

cultural conglomerates, which seek to enlarge their authority and generate more and

more profit from cultural output, makes the second possibility more plausible.

Digitisation & Change in copyright’s reach and the force of regulation

Changes in copyright law have been introduced furthermore as a result of

digitisation46 that technology has launched. The wide dissemination of digitalised

knowledge has become easier than ever. A mere click, drag, and drop are the only

moves needed to put a new idea or expression at the centre of global attention and this

has come as a new challenge to traditional copyright protection. Famous problems

among which stands the Peer-to-Peer file sharing networks47, namely software used

for (basically illegal) online exchange of music and other files, have triggered a series

of battles in contemporary music history and have put copyright legislation on the

spot48. Copyright protection has been jeopardised, because Internet’s content layer49,

44Derivative work is a work that has not resulted from new ideas, but has been developed by a pre-existing work. That means that “if you write a book, no one can make a movie out of your book without permission. No one can translate it without permission. Cambridge Online Dictionary http://dictionary.cambridge.org/define.asp?key=20977&dict=CALD. 45Formalities were abolished in the American system while its trying to follow European Copyright law practice. 46Digitisation is a contemporary practice to present every kind of information in a form pertaining to a digit. This new way of communicating information is supported by the infrastructure Internet and World Wide Web (WWW) provide. 47For more information about the history and evolution of P2P soft wares see: J.Alderman, Sonic Boom: Napster, P2P and the Battle of the Future of Music (London: Fourth Estate, 2001). 48File-sharing is considered to be illegal copying and transmission of copyright material. Therefore musicians and especially the music industry, which is literally the main beneficiary in the music market, have started an infinite war against P2P soft wares under the banner of copyright protection. 49The Internet as an end-to-end technology consists of three layers, namely the physical layer, where the internet applications (software) operate, the code layer, where applications expressed in code (source code and object code) and embodied in software dictate how the Internet functions and finally the content layer. L.Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New. York: Vintage, 2002)17-23.

wherein the information placed on the Internet is comprised and where traditional

copyright works exist, gives the option to individuals to publish, reproduce and

communicate these copyright works to wide audiences, without resorting to

publishers, record companies or motion picture studios.

Technology has increased copyright’s reach both directly and indirectly.

Indirectly, since every act on a digital network produces a copy and every copy of a

copyrighted work falls potentially under the banner of copyright and directly, in that

technology makes possible a control over these copies that before would have been

impossible50.

Once there was basically a tripartite categorisation of uses. First, the totally

unregulated uses that were not within the reach of copyright, because they were not

making a copy (ex: reading a book, reselling a book, giving the book to someone else,

sleeping on a book), second, the regulated ones, with the republishing of books at the

forefront, as the main use regulated by copyright and finally, regulated uses that the

law treats as unregulated, because they fall within the scope of the exceptional “fair

use” and “fair dealing” doctrine. In the United Kingdom, Copyright, Designs and

Patents Act 1988 provides for fair dealing defences if one uses the work for private

study or research51 or for the purposes of criticism and review52. Fair dealing doctrines

exist as well in other common law jurisdictions such as Australia53, Canada and New

Zealand and a similar but more flexible principle, fair use, exists in the United States

under the copyright Act 1976.

Although the aforementioned categorisation, and especially the unregulated

uses, has been of critical importance to the creation of free culture, it has lost

application in the world of the Internet. In the era of digital content, there is no space

for unregulated uses and worse, fair use and fair dealing exceptions are too narrow to

protect various forms of recreation. Besides the instances of fair use are by definition

exceptional and/or provisional, and cannot be often evoked. This sudden shift makes

one wonder, whether copies should continue to enforce copyright law or whether the

conditions that trigger copyright law’s regulations should be reappraised54. But even if

50 L.Lessig, (2003, 9pp).51Copyright, Designs and Patents Act 1988 s.29.52Copyright, Designs and Patents Act 1988 s.30.53Copyright Act 1968 (Cth) ss.40 and 41.54L.Lessig, (2004b, 140p).

this reappraisal would take place, who would guarantee, that copyright law’s

controlling power would be reduced?

Before the net, it was generally the law, namely a court, a judge that would

determine the subject matter of copyright protection and the way copyright legislation

should be enforced. The human factor had been the main and sole administrator of

copyright law’s regulatory power and that regime was giving a sense of naturalness to

the judicial procedure and therefore a feeling of social security. Nevertheless in the

digital age, it is basically the Internet and no longer courts that administrate justice. A

“shameless”55 copyright code constitutes the future of copyright, where programmers

will codify control over access to content, a control that judges will not be able to

check and courts to ratify. The inability of copyright law to adhere to the

technological evolution has led to the existence of legislative gaps and of flawed legal

stipulations. Technology that delivers copyright content has started to interpret and

enforce copyright law. Nowadays it is software, or generally, “code” that sketches the

contours of people’s freedom to access and use copyrighted material.

Large media companies, in their zeal to preserve their increasingly outdated

bussiness models, tried to restrict access to their content by first locking content up

with “digital rights management technology” (DRM)56.This complex and multi

layered mechanism of defence that nastily controls the replication and distribution of

copyrighted material, was meant to be an additional provision to traditional copyright

protection. Yet, erring on the side of protection, industry’s anti piracy efforts have

been turned against the paying public, a strategy that has infuriated customers and

alienated artists. There are cases where DRM technology has introduced flawed

schemes of protection that left customer’s computers vulnerable to viruses and

vandals57. Moreover, in trying to ensure copyright protection, database management

systems are usually complemented by a series of strict contracts, mainly complicated

55L. Lessig, (2004b, 148p). 56Digital rights management (DRM) is the umbrella term referring to any of several technologies used to enforce pre-defined policies controlling access to software, music, movies, or other digital data. DRM critics (L.Lessig (2004b, 152pp) argue that the phrase “digital rights management” is a misnomer and the term “digital restrictions management” is a more accurate characterisation of the functionality of DRM systems. http://en.wikipedia.org/wiki/Digital_rights_management. 57This was exactly what happened when Sony “got caught with slipped discs”. “In its zeal to protect its property, Sony didn’t sufficiently evaluate or test its software. In order to rip the songs to your computer, you had to install a program that secretly inserted a “rootkit” into your system. This is a form of spyware potentially exploitable by digital wrongdoers; the Homeland Security Department specifically instructs consumers not to install such software from audio CDs. Now Sony has been forced to recall the discs”. S. Levy, “The Technologist: Sony Gets Caught with Slipped Discs” (2005) Newsweek Vol CXLVI, 14pp.

licence agreements that set hurdles to the nature of customer transactions. Hence,

while DRM technology may be approved on the grounds that it seeks to offer

protection to copyright holders to defend their legitimate interests upon their works, it

is utterly disapproved on the grounds that it fosters these ends at the expense of

consumers.

As if not enough powerful, the aforementioned technological protection has

been strengthened by laws and supported by anti-circumvention measures. Large

media companies have successfully lobbied governments to adopt new regulations,

which apart from authorising and ratifying the use of DRM, prohibit its

circumvention, whether or not the use of the copyrighted material made possible by

this circumvention constitutes a copyright violation58. In 1998, for instance, the

Digital Millennium Copyright Act (DMCA)59 was enacted in order to provide

copyright owners with further security. DMCA has been the legal code to offer

protection to the software code DRM provides, which itself is intended to support the

legal code of copyright. The outcome of such an inter-supportive sequence seems to

be rather confusing. Yet, DMCA has gone a little bit further than traditional copyright

law protection to outlaw devices that intend to circumvent copyright protection

measures, even when this latter circumvention is done in order to exercise fair use

rights, or to engage in free speech60. Stricter than traditional copyright law, DMCA

encourages absolute control over creative works preventing thus the blossoming of an

“unfettered” culture, where freedom to modify, redistribute copies, either gratis or for

free, is needed61.

58L.Lessig, (2004b, 157-161). See further, The Basement Interviews, Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder(2006).http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf(ace-ssed12/6/2006).59Signed into law by President Bill Clinton on October 28, 1998, the DMCA was passed in order to implement the 1996 World Intellectual Property Organisation (WIPO) Copyright Treaty. The Bill included controversial anti-circumvention prohibitions that criminalise production and dissemination of technology that can circumvent measures taken to protect copyright, not merely infringement of copyright itself (i.e. DRM). It also heightens the penalties for copyright infringement on the Internet. http://en.wikipedia.org/wiki/DMCA. 60The Basement Interviews, Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th April 2006. http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf. (Accessed 12/6/2006).61R. Stallman, Open Sources: Voices from the Open Source Revolution, (USA: O’Reillly & Associates, 1999).

DMCA-like laws have now been spread all over the world. Japan62,

Australia63, and much of European jurisdictions64 have adopted DMCA-style

copyright restrictions. At least nine additional countries, including Chile, Guatemala,

and Singapore have also been pressured to enact similar to DMCA laws, as a result of

a vexing bargain with U.S. trade negotiators65, who have claimed something like that

to be an important precondition for the security of free trade agreements that govern

trade66.

However, most of changes in copyright law would not really matter, if it was

not for one more change; the change in the concentration and integration of the media,

which has necessitated copyright’s reconsideration as well as the reappraisal of the

public domain of creativity and knowledge67.

Change in the concentration of media and privatisation

A growing privatisation of our past and present heritage has been taking place the past

twenty years. As Lessig puts it, “Never before in our history have fewer exercised

more control over the development of our culture than now” 68. Indeed, a continuing

media consolidation has changed the size of concentration and its nature. It has been

estimated that, within a few years, the world will be governed by just a few colossal

62On May 29, 2006 Xinhua news agency reported that the Chinese government has passed a new regulation to ban the uploading and downloading of Internet material without the copyright holder's permission. This DMCA-like regulation will come into force on July 1, 2006. Cairns Blog: DMCA on Steroids: China Toughens Online IP Protection (2006) http://cairns.typepad.com/blog/2006/05/dmca_on_steroid.html. (Accessed 13/7/2006).  63Australia’s DMCA has been the Australia-United States Free Trade Agreement (FTA, Article 17.4(7)), a preferential trade agreement between Australia and the United States of America, modelled on the North America Free Trade Agreement (NAFTA). This FTAcame into force on January 1, 2005.64EU’s DMCA is the Directive 2001/29/EC of the European Parliament Apart from Czech Republic and Spain all other EU member states have implemented the Directive. http://en.wikipedia.org/wiki/EU_Copyright_Directive. (Accessed 13/7/2006). 65Anti-circumvention provisions have been included in the IP chapters of bilateral free trade agreements that the U.S. has recently concluded with Jordan (Article 4(13)), Singapore (Article 16.4(7)), Chile (Article 17.7(5)), Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and the Dominican Republic (Article 15.5(7),Morocco (Article 15.5(8)) and Bahrain (Article 14.4). Hinze, “Seven Lessons from a Comparison of the Technological Protection Measure Provisions of the FTAA, the DMCA, and recent bilateral Free Trade Agreements” Electronic Frontier Foundation. http://www.eff.org/IP/FTAA/?f=tpm_implementation.html. (Accessed 13/7/2006). 66F.von Lohmann & W. Seltzer, “A flood of legislation released by the passage of the Digital Millennium Copyright Act threatens to drown whole classes of consumer electronics” (2006). SpectrumOnline: http://www.spectrum.ieee.org/jun06/3673. (Accessed 13/7/2006). 67L.Lessig, (2004b, 161-168).68L.Lessig, (2004a, 5pp).

companies69, controlling over eighty five per cent of the media. Production systems

are monopolising global upstream and downstream markets70. These production

networks form something more than efficient financial structures, they constitute

monopolies that reign in a world, where people no longer compete to create and

distribute culture, in a world where scientific progress has been decreased, the

opportunities for creativity have been diminished and the availability of new products

has been curtailed71. These homogeneous and sterile networks with their mining and

owning attitude towards the common cultural products of humanity have threatened

copyright and paralysed its core purposes of existence; its economic purpose and its

cultural one. Indeed, most artists hardly receive any profits from the creation and

performance of their work; conversely the main beneficiaries of copyrights are

cultural conglomerates, which rip off almost all revenues from the artistic labour.

Even the value of royalty rates is now decided in a market place, where the excess

supply of creative workers has impaired artists’ bargaining power with firms, a power

that was once a determinant factor with respect to copyright earnings72. “Copyright

(seems to) favour the firm rather than the artists in the cultural industries”73.

This situation has as well put under threat the survival of democracy and

precisely the right to freedom of expression, a fundamental right that has won

recognition at both regional and international level74. Indeed, when oligopolistic

private control dominates broad areas of cultural expression, where “no counter-

melody, no counter-image and in short no dialogic practice is tolerated”75, then it is

obvious that “healthy political debate, is being hijacked by few private interests”76.

69United States’ Federal Communications Commission’s (FCC’s) announcement in June 2003 quoted in L.Lessig (2004b, 162pp).70Upstream market is the market constituted by a certain product or service and a downstream-secondary market is the marketing area, where the product or service in question is used for the production of another product or the supply of another service. A .Jones & B. Sufrin, EC Competition Law (US: Oxford University Press, second ed, 2004)507pp.71J, Boyle. , Shamans, Software, and Spleens: Law and the Construction of the Information Society (London: Harvard University Press, 1996)119 pp. See also M, Perelman. , “Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity” (2002) New York, Palgrave Macmillan 7-9. 72R, Towse. , Copyright and Cultural Policy for the Creative Industries ( 2003), in ed. O, Granstrand Economics, Law and Intellectual Property (Netherlands: Kluwer Academic Publishers, 2003)10-11.73R. Towse. , Creativity, Incentive and Reward: an Economic Analysis of Copyright and Culture in the Information Age (UK and Northamptom: Edward Elgar Publishing, 2001).74Universal Declaration of Human Rights, Art 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. 75J. Smiers et al, (2005).76J. Smiers, Arts under Pressure (London: Zed Books, 2003).

When cultural conglomerates are related to media conglomerates controlling access to

information77, the situation becomes even more alarming, especially these days that

the advent of the Internet has immensely contributed to the democratisation of access

to information, culture and knowledge78.

Taking into consideration all these changes that copyright law has undergone

the last two hundred years since its birth in the eighteenth century, it becomes clear

that “never again have the concentration and privatisation of our cultural heritage

been as significant as it is now”79. Copyright seems to be more about “stimulating the

commercial exploitation of creative/cultural output” than about “encouraging

creativity and protecting the output of that creativity”80. The traditional balance

between the rights of copyright holders and the rights of consumers has been lost.

While creative industries are using copyright law in order to enlarge their power and

realm, the law itself is becoming increasingly inadequate to deal with societal

demands and expectations. Especially in non-Western societies, where art is created

and produced in a collective manner the individual approach of the Western copyright

system cannot be but a “straight-out disaster”81. Moreover, copyright, as Litman puts

it, has become complicated, arcane and counterintuitive82 and its understanding is at

the lowest ebb. This complexity has led to the public rejection and disobedience of

existing copyright policies. Besides “people do not obey laws that they do not believe

in”83. These and a series of other reasons have necessitated the review, simplification

and modernisation of copyright and have recently led several scholars and policy

makers to present alternatives to the system.

One of the most “far-reaching reorientations” 84 of copyright system, has been

Creative Commons (CC) licensing scheme, a revolutionary legal mechanism that

basically came to optimise and adjust copyright system in nowadays reality. Standing

on top of two edges, shaped on one hand by those who advocate copyright’s lead

77G. Murdock, “Redrawing the map of the communication industries: concentration and ownership in the era of privatisation”, 1990, reprinted in eds. P. Golding & G. Murdock, The political economy of the media (London: Edward Elgar, 1997). 78P. Akester, “The Political Dimension of the Digital Challenge: Copyright and Free Speech Restrictions in the Digital Age” (2006) Intellectual Property Quarterly No 1, 16-33.79L.Lessig, (2004a).80F. Macmillan, “Copyright and Corporate Power”, in ed Towse, Copyright in the Cultural Industries (UK: Edward Elgar, 2002).81J. Smiers et al, (2005).82J. Litman, “Copyright Noncompliance: or why we can’t “Just say yes” to licensing” (1997) 29 N.Y.U.J.INT’L. & POL. 237. 83J. Litman, (1997). 84J. Smiers et al, (2005).

among any other possible regulatory mechanism and those who strongly oppose

copyright, CC seeks to offer a balance and prove that after all we do not live in a

world governed by extremes85. CC’s regulatory system, its merits and drawbacks will

be critically evaluated in the next part of this paper.

At the other end of the scale, to some analysts, it is the whole copyright system

that hinders creation. For those copyright is inherently unjust and invalid and for that

reason they advocate its abolition in favour of a radically different system. A quite

interesting alternative, which seeks to serve this latter purpose, was recently presented

by Joost Smiers and Marieke van Schijndel in an essay titled “Imagining a world

without copyright”86. This alternative system, the consequences of its application, its

advantages and disadvantages will form as well subject to this paper’s assessment.

Chapter 2

Customising Copyright: Creative Commons licensing

scheme

85L.Lessig, (2004a).86J. Smiers et al, (2005).

Creative Commons (CC) is a global NGO87, a San Francisco based non profit

organisation committed to expanding the range of creative work available for others

to legally built upon and share. CC provides alternative licensing and contract

schemes to allow creators to unilaterally waive some of their rights that copyright

automatically assigns to them, while retaining others88.

CC was officially launched in 2001 by Lawrence Lessig and by a

group of colleagues, formed by cyberlaw and intellectual property experts, computer

scientists and artists and publishers in the United States89. Lessig describes the project

as part of two-pronged approach; with CC forming an unconventional attempt to

achieve privately, what had been the goal of conventional challenges to intellectual

property law in the courts90. The name Creative Commons refers to the concept of a

“commons”, a notion that nowadays encompasses “any sets of resources that a

community recognises as being accessible to any member of the community”.91 CC’s

philosophy lies on four abstract pylons, namely that creativity depends on wide access

and use of pre-existing works, that copyright law has become an obstacle for the

sharing and reusing of creative works, that increased transaction costs highly

associated with the copyright regime restrain individuals from accessing and reusing

of creative works and finally that copyrights should be exercised in a way that

encourages sharing and reusing92.

CC’s new strategy stands halfway between the acceptance of copyright and its

abolition and offers a flexible solution by encouraging creators to adopt a “some

rights reserved” approach against the prevailing “all rights reserved” model. CC has

created a third domain, where individuals voluntarily place their work and use

copyright law to ensure that following users and modifiers do not obstruct others from

free access or use. This layer of “reasonable” copyright law is believed to create a

new reality, where CC’s technology rebuilds once again the “mix between all, none

87The letters stand for Non Governmental Organisation.88See http://www.creativecommons.org/. 89Creative Commons was started in 2001 by lawyers Lawrence Lessig, Michael Carol and James Boyle; publisher Eric Eldred; computer scientist Hal Abelson and others from the Center for the Public Domain. Grants from the Hewlett and MacArthur foundations and space and facilities from Stanford Law School contributed as well to the realisation of the project. http://www.creativecommons.org/ . 90Eldred v Aschroft 537 US. 186 (2003) & Kahle v. Ashcroft, 2004 U.S. Dist. Lexis 24090 (N.D. Cal. Nov 19, 2004), on appeal sub nom. Kahle v. Gonzales (2005).91See en.wikipedia.org/wiki/Commons. 92N, Elkin-Koren, “What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons” (2005) 74 Fordham L. Rev 375, 3pp.

and some”93. CC’s goal is the creation of “a layer of reasonable, flexible copyright in

the face of increasingly restrictive default rules”94.

Indeed, current copyright laws, as already mentioned in the first part of this

paper, host a plethora of problems respecting the sharing of information. Expansive

copyrights, limited access and use of resources, restraints on the ability to create, the

shrinkage of the public domain and the lengthened commodification of information,

have put culture under threat by establishing a situation that offers no prospects of

progress or advancement. Of course, what CC offers is not legal consultation or

defence, is not policy activism or academic legal analysis, but concrete solutions.

Beyond merely criticizing copyright, CC has given something real to people, that is

high quality legal licenses and instructions on their use. James Boyle has proudly

claimed that “they did not just sit around talking about how it should be different, but

made something to give to people”95.

CC licenses’ conceptual inspiration came from the General Public license

(GNU/GPL) and Stallman’s general notion of copyleft96 and they are modelled on

projects such as the Electronic Frontier Foundation’s Open Audio License 97(EFF).

Free Software movement began in 1983 and manifested the need to liberate computer

users from proprietary software and replace the latter with free software98. GPL

licenses provide a “framework for identifying work intended to be shared openly and

protecting its “free” status by clearly defining it”99. The word “free” in free software

refers to freedom not to price. Accordingly, people should be free to use software in

every possible socially useful way as well as modify and continue to share it under a

notion of free exchange of ideas, community, collaboration and collective

stewardship. However CC licenses have not utterly adopted the ethical stance of GPL

to radically transform and effect a thorough modification in the system of creation and

93 L.Lessig, (2004a, 6pp).94See http://creativecommons.org/learn/aboutus. (accessed 15/7/2006).95C M. Kelty, “Culture’s Open Sources: Punt to Culture” (2004), Anthropological Quarterly - Volume 77, Number 3, 547-558.96Copyleft relies on copyright law to undo the automatic prohibitions on copying and impose a perpetual, irrevocable, freedom to use the work. Many fans of copyleft media believe that copyleft is a cross between copyright and the public domain. http://en.wikipedia.org/wiki/Copyleft. 97Today, the EFF does not offer licenses of its own, but refers visitors to the CC licenses. See www.eff.org/IP/Oen_licenses/archive.php. 98http://en.wikipedia.org/wiki/Free_software_movement . 99GPL states: “Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. See www.fsf.org/licensing/licenses/gpl.html.

dissemination of software, instead they are influenced by a rather pragmatic need to

offer solution to the problem through practices that guarantee balance, middle ground

and moderation100.

CC offers a palette of six “Standard licenses”101, which all grant baseline rights

and come in versions giving users the possibility to grant the application of their work

in about eleven valid different ways102. Users have four fundamental choices103; they

can choose between authorising or prohibiting modification of their work, commercial

exploitation of their work, attribution of the work to its original maker and

redistribution of any subsequent work under the same conditions. In addition, a set of

other licenses for more specialised applications supplement the licensing and

contractual scheme of the organisation. These are the “Public Domain Dedication

license”, the “Founders Copyright license”, “Sampling licenses”, the “Music Sharing

license” and the “Developing Nations license”104. Once the aforementioned selections

are made, CC’s technology issues a license that is comprised of three separate

layers105. One layer is the human readable version of the license which includes

general information of what the license is and what the user can do with any particular

work. The second is the lawyer readable version of that license, namely the contract

which is drafted taking into consideration the regulatory framework and legal codes of

the jurisdiction in which the license is being used and the third layer is a machine

readable version of the license, which enables computers to understand what freedoms

100N. Maleve, “CC and other licences” (2005), www.nettime.org.1011) Attribution Non-commercial No Derivatives, 2) Attribution Non-commercial Share Alike, 3) Attribution Non-commercial, 4) Attribution No Derivatives, 5) Attribution Share Alike 6) Attribution. http://creativecommons.org/about/licenses/meet-the-licenses. 102The mixing and matching of the choices given to the user produces sixteen possible combinations, of which eleven are valid Creative Commons licenses. Of the five invalid combinations, four include the No derivative works and Share alike clauses, which are mutually exclusive and one include none of the clauses, which is equivalent to realising one’s work into the public domain. A. Story et al (2006). 103Attribution (by): Permit others to copy, distribute, display, and perform the work and derivative works based upon it only if they give you credit, Noncommercial (nc): Permit others to copy, distribute, display and perform the work and derivative works based upon it only for non commercial purposes, No Derivative Works (nd): Permit others to copy, distribute, display and perform only verbatim copies of the work, not derivative works based upon it and Share Alike (sa): Permit others to distribute derivative works only under a licence identical to the license that governs your work.104http://creativecommons.org/licenses/publicdomain/ , http://creativecommons.org/licenses/devnations, http://creativecommons.org/licenses/sampling,http://creativecommons/licenses/founderscopyright, http://creativecommons.org/licenses/music. 105The licenses were originally drafted for US law makers but are now available and valid for 12 different legal jurisdictions. A. Wiesand & D. Cliché, “Survey of Artists’ Rights”, in the third session of the European Cultural Parliament (Genova, Italy, 2004).

are granted and serves search engines and other software applications to detect a

specific piece of content106.

CC’s legal solidness, flexibility and simplicity as well as its wide exposure

make it a very auspicious initiative.

Advantages of CC’s licensing scheme

There are several arguments in favour of CC licenses that make them look like a very

promising initiative. First, it is the very original and revolutionary licensing platform

that CC has established for promoting the free use of creative works. The idea of

facilitating and triggering creativity under generous license terms that make works

available for sharing and reuse, constitutes an innovative policy in a practical level

and furthermore demonstrates a very positive attitude towards the notion of openness,

community and collaboration, a triad that brings wider access to knowledge and

information.

In addition CC, believing that many individual creators would not elect to

have all the rights that copyright law automatically bestows, offers a legal mechanism

that helps creators and especially those who display or distribute their creative work

on the Internet, to separate out the basket of different rights that copyright law confers

by default and opt out of those rights they do not need or want, while retaining others.

Hence, CC constitutes an alternative, a pragmatic response to some of the traditional

proprietary presumptions of copyright law.

Indeed, under the copyright regime, creative works are automatically

protected as soon as they are fixed in a tangible medium or expression. This automatic

bestowal of ownership over intangible assets hampers access to knowledge and works

in the detriment of societal growth. On the contrary CC, by just providing the tools for

an advantageous use of the potential the Internet offers, seeks to restore the balance

between protecting the rights of creators and publishers and the needs of society to

insure progress in the arts and sciences, without telling copyright owners what to do.

Moreover, CC licenses seek to establish a “lawyer-free zone” for the benefit of

both the creator and the user. Through its licensing platform CC seeks to reduce the

106Some of the tools that discover CC’s licensed content are the following: iRATE radio, Gnomoradio, Yahoo! Creative Commons search, Google advanced search, Common Content, Jamendo, The Assayer etc.A. Creative Commons from Wikipedia the free encyclopaedia.

transaction costs of both licensing and acquiring licenses for reuse. From the potential

users’ viewpoint, this revolutionary proposal is very much in need, especially

considering the repercussions of nowadays “digital” reality. Indeed, the advent of

technology and especially its copy-based character has unintendedly changed the

balance between free culture and culture by permission, in favour of the latter.

Although some pro-copyright critics may advocate the rebalancing potential of the

“fair use” doctrine, its enforcement cannot but significantly increase the need for

litigation, lawyers and thereby transaction costs. For the legality or illegality of every

single action, users have to consult lawyers, a situation that can only deter future

creators for materialising their ideas107.Under CC’s licensing scheme, where licenses

assert an author’s intentions there is no other possibility but significant minimisation

of the need for lawyers and permission-asking. In addition, from the creators’

viewpoint, CC’s “lawyer-free zone” effects to the “lower(ing) of the costs for people

who want to make their work available in the public domain. The organisation is

devising a system of intellectual property licenses obtained free of charge on the Net,

that creators of all kinds could use to define acceptable use of individual works. These

would be so easy to use-a matter of checklists and filling in the blanks-that no lawyers

would be needed to execute the licenses, thus making the system free and affordable

by all”108. Even though the “lawyer-free zone” proposal has been widely criticised for

oversimplifying the problem109, CC’s revolt against traditional draconian copyright

laws, which have exponentially increased the cost associated with licensing

copyrighted materials, is definitely a positive effort, which is totally endorsed.

Moreover, CC gives a solution to the problem that the optional character of

copyright notice creates, that is, the lack of a reliable way to identify those creative

works, which are available for copy and reuse. Indeed, the absence of a stable

measure to ascertain the existence of copyright in combination with the difficulty to

define each time the exact scope of protection, namely what aspects of the work are

protected and what uses are prohibited without a license, makes most people infer that

the entire work is under protection, strengthening thus copyright’s prohibitive effect.

Contrary to the aforementioned situation, CC licenses provide advance notice of the

107E M. Salzberger, “Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004) 1 J.L. Econ. & Pol’y 263, 3pp.108W. Wallys Conhaim, “Copyright Revision” (July/August 2002) Link-Up, 6pp. 109M. Fox, “Creative Commons: An Alternative, Web-Based Copyright System” (2005) Ent. L. R. 2005, 16(5), 111-116.

freedoms attached to the content, thereby facilitating content’s identification and

obviating creators, who are willing to share more freedoms than those permitted, to

obtain consent in advance. Through that way CC provides real opportunities for

creative activity and collaboration.

In addition, apart from offering merely practical advantages, CC forms

as well an inspirational gateway, a “social movement”110 aiming in bringing about

social change. By creating a structure for a wide variety of ideologies that share an

interest in promoting access to works, CC offers a “reformist window”111 for extended

and systemic critique of the existing copyright system and its alleged societal benefits.

However, this social reform is pursued in a rather subversive way. CC’s proposal

starts with a grassroots social change founded on the redefinition of social norms

towards the way creative works should be treated and goes on to claim that this

redefinition will finally bring the overdue legal reform. Notwithstanding the fact that

for other social movements the decisive factor to bring social change has been

primarily law112, CC revolts and founds its policy upon the belief that “Once the

movement has its effect in the streets, it has some hope of having an effect in

Washington”113.CC does not primarily lobby for legislative alterations and copyright

reform, conversely its policy is heavily relied upon copyrights and property. CC

advocates a system where common practices of production and distribution of cultural

output will be replaced without any changing at the proprietary regime.

Despite the fact that this stance involves a high degree of originality at the

normative level, it has been widely criticised from an ideological viewpoint. How

property and the ideology surrounding open access, two mutually exclusive concepts,

could be intertwined to pursue the idea of free culture? Questions respecting CC’s

movement and its appraisal towards its perceived values and goals have triggered

certain critical positions, which can be generally divided up into complaints of a lack

of an ethical position, a political position, enforcement ability and a common sense

position114.

110N, Elkin-Koren, (2005, 3pp).111A.Story et al, (2006, 168pp).112For instance the feminist movement aimed at gender equality and female rights by crying for specific legislation and filing strategic lawsuits. See Steven M. Buechler, Women’s movements in the United States: Woman Suffrage, Equal Rights, and Beyond 110-112 (1990). 113L.Lessig, (2004b, 257-305).114The three-pronged division is borrowed from http://en.wikipedia.org/wiki/Creative_Commons.

CC’s lack of ethical position

The critical positions that have been shaped within this camp, “accuse” CC for not

having an ethical position, namely a position in accordance with the accepted

principles of right and wrong that govern the conduct of the creative process, upon

which to base its licensing scheme. This lack of ethical position is claimed to be

reflected to CC’s lack of standardisation, that is, a lack of a base level of freedoms for

its licenses115. How can CC stand as a link for a social movement, when it does not

establish any defined criteria and when its licenses cannot provide a minimum

standard of freedoms? How can CC constitute a better alternative, when it does not

fundamentally challenge the copyright system and it founds its conceptualisation of

sharing, distribution and reuse of creative works upon a strong proprietary regime? Is

CC really a “missed opportunity”116?

a) CC is failing to set minimum standards of freedom

CC’s project has been described as an attempt to translate the principles of Free and

Open Source Software (FOSS)117 and apply them, after appropriate alteration, to less

technical forms of creative expressions, such as writing and audiovisual arts118.

However, it is argued that “despite CC’s stated desire to learn from and built upon the

example of the free software movement, CC sets no defined limits and promises no

freedoms, no rights and no fixed qualities. Free software’s success is built upon an

ethical position. CC sets no such standard”119.

The aforementioned critique obviously idealises the principles of Free and

Open Source movements and forces CC to adopt their standardisation120 by defining a

115See The Basement Interviews, “Open and Shut?” Richard Stallman speaks to Richard Poynder, 21st

March 2006. http://poynder.blogspot.com/2006/03/interview-with-richard-stallman.html (accessed 12/6/2006). 116B.M. Hill, “Towards a Standard of Freedom: Creative Commons and the Free Software Movement” (2005) Free Software Community portal Advogato, http://www.advogato.org/article/851.html. (Accessed: 17/7/2006).117In terms of the philosophy, motivation and politics that lie behind the Free movement and the Open Source movement, the first is perceived as a social movement, whereas the second forms a development methology. However, when discussing inspiration by free software, the distinction between the two concepts is hardly discernible. 118B. M. Hill, (2005).119B. M. Hill, (2005).120For instance Free Software definitions list four basic freedoms that when a piece of software’s license provides them, it is considered to be free software. These freedoms are: First the Freedom to

set of core freedoms or terms that all CC licenses must provide. Similar objections

have been presented recently, especially when CC introduced its two new licenses; the

Developing Nations License121 and the Sampling License122. These two licenses do not

guarantee the right for anyone to copy the creative works that fall under their

regulatory spectrum and for that reason are thought to constitute a big threat to the

once common to all CC licenses quality, that is, the freedom to distribute verbatim

copies non-commercially123.

It is true that CC’s licensing model, is different from the conventional business

models and especially from the traditional copyright’s default rule “all rights

reserved”. This uniqueness has given rise to criticisms, debates and uncertainties

relating to CC’s operation, which based upon misunderstandings, have misinterpreted

the system. The analysis that follows seeks to shed some light on these

misinterpretations and clarify some of their blurred points.

For the most part, the critics about CC’s inability to set standardised

freedoms in its licenses found their reasoning upon CC’s lack of an ethical judgement

on what is important or not, something that purportedly FOSS successfully managed

to do. But how can we talk about standardised freedoms, when these are driven by

ethical judgements, which blithely decide on what is important or not, without

however listening to what creators and consumers perceive as really being important?

“Critics should show a little bit of humility….rather than marching in with a set of

defined principles that come from who knows where, and imposing those regardless

of the views of those who live in that particular domain, they should listen to what

these people say to them”124. CC takes the struggle to the streets, a place where ethical

judgements, if not realistic, become totally deprived of strength. And it is not of

course that CC lacks ethical judgement, but rather that the set of freedoms that it

provides, do not agree with the freedoms that other people think CC should support.

run the program, for any purpose, second the freedom to study how the program works and adapt it to your needs, third the freedom to redistribute copies so you can help your neighbour and finally the freedom to improve the program and release your improvement to the public, so that the whole community benefits. 121http://creativecommons.org/license/devnations . 122http://creativecomons.org/about/sampling . 123The Basement Interviews , “Open and Shut?” Richard Stallman speaks to Richard Poynder, 21st

March 2006. http://poynder.blogspot.com/2006/03/interview-with-richard-stallman.html (accessed 12/6/2006). 124The Basement Interviews , Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th April 2006.http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf (accessed 12/6/2006).

In particular, for those, for instance, who foster the Free and Open Source Software’s

scheme, the right to copy should always form a baseline freedom, because they

believe that it is associated to the fundamental right to share. Upon this belief, they

hardly comprehend how CC can speak about fundamental rights to share, without

however establishing a right to copy to all of its licenses. This has been exactly the

case with the Developing Nations License and the Sampling License and their alleged

“deficiency” in prohibiting people from the “fundamental” right “to distribute

verbatim copies non-commercially”125.

In effect, this perception stands on a big misunderstanding. Similarly to the

confusion that the record industry engages in, when it translates the activity of

downloading music from the Internet into stealing music from a music store, these

people perceive copying and sharing as one and the same quality. Although both these

activities form types of sharing, there is still a small, albeit essential difference

between them126. “Sharing” bears a very important precondition, which is the sacrifice

of one part of the subject-matter, which is shared, for the benefit of the person or

persons with whom the sharing is taking place. For instance, when I share half a piece

of cake with somebody else, I lose this half piece, which instead will be consumed by

this other person. On the contrary, “copying” does not bear any particular sacrifice,

since it does not deprive the person who shares from the sharing subject. For instance,

when I share my music on my MP3 player, the other person has my music and I have

it too. There is not any sacrifice involved in this act or harm to me and probably, since

this other person might not have bought the CD anyway, the commercial interests of

the song writer or of the song producer are not harmed too. Upon this account,

copying should be perceived at least as a different kind of sharing from the ordinary

sharing in real space. The recognition and acceptance of that difference between the

freedom to copy and the freedom to share, justifies CC’s licensing scheme for not

giving the former a priority position and proves that the problem seems to be rather

with the subversive character of CC’s licensing scheme, which has chosen licensing

125The Basement Interviews , “Open and Shut?” Richard Stallman speaks to Richard Poynder, 21st

March 2006. http://poynder.blogspot.com/2006/03/interview-with-richard-stallman.html (accessed 12/6/2006). 126The Basement Interviews , Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th April 2006.http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf (accessed 12/6/2006).

variations to differentiate itself from other similar structures127, than with its purported

failure to set a minimum standard of freedoms for its licenses. What is more, with

respect to the Developing Nations License, the right to copy might seem even

superfluous under certain occasions. For instance, what would be the benefit for a

Brazilian girl, who does not speak English, to copy an English-language book? CC

seeks to establish a set of realistic freedoms and rights always contingent on the

specific circumstances of a situation.

Advocating a variety of licensing schemes means flexibility and

encouragement to authors to communicate their works out in the public sphere.

Standardisation does not promote the aforementioned goal, but rather seems to help

projects, such as the Free Software, to entrench their position as social movements by

drawing a line in the sand about the ideological stance they adopt. Standardisation

deprives these movements from being able to give pragmatic solutions to existing

problems. Contrary to those who believe in the uniqueness of the right to copy, CC

underscores the importance of the right to make derivative works. Besides, the

creative sense of being able to “stand on the shoulders of giants by revisiting, reusing

and transforming the ideas and works of our peers and predecessors”128, which is what

CC assumes to be creativity, refers rather to the ability to make derivative works than

copying those of our predecessors.

b) CC’s ideology is reactionary

CC’s ideology, as expressed in theory and practice, wants to enhance accessibility to

creative works. Working as the balance and compromise between total control (all

rights reserved) and anarchy (no rights reserved), CC offers a new legal infrastructure

to individuals who have been hampered by the present copyright regime. However,

for some critics, CC’s ideology is reactionary129. In particular, it has been stated that

“CC has failed to describe what it will be replaced with except to say that it will be

better”130. For the advocates of this opinion “something slightly better is surely

desirable, (but) it may also be too little”, especially when CC’s normative framework

127For instance its differentiation from the four core freedoms listed by Richard Stallman’s Free Software Definitions (FSD). Quoted in B.M. Hill (2005).128W, W. Conhaim, “Creative Commons Nurtures the Public Domain” Information Today (2002), www.infotoday.com/newsbreaks/nb020603-2.htm. 129N, Elkin-Koren, (2005, 8p).130B.M. Hill, (2005).

infers the possibility that social change will emerge without any changes to the

proprietary regime that copyright law establishes. Relying upon strong copyrights, CC

strategy has been strongly criticised for not having a clear view of a better alternative

and for lacking a critical stance towards copyright itself131.

First, it is very important to mention that CC is pretty much sceptical of

copyright’s fundamentalism and very much concerned with the propertisation and

commodification of all cultural and literary products that copyright law encourages.

However, rather than being in opposition with copyright law as such, it chose to offer

an alternative structure to the default “all rights reserved” and to the status quo “all

rights reserved”132. This does not mean that CC is not a clear alternative, but rather

that it is an alternative to two particular manifestations of copyright. Therefore, the

comments that want the “some rights reserved concept” of CC to constitute merely the

very nature of classical copyright133, they make wrong in that they oversee the fact

that CC, unlike current copyright law, has given creators the possibility to make a

choice suitable with their preferences in deciding, what other users may use or may

not use of their works.

Moreover, the fact that CC operates within the ideological presumptions of

copyright, does not mean that CC accepts copyright as a platonic ideal, but rather that

it perceives copyright as a critical part of the creative process. In particular, what is

especially endorsed by CC is that copyright system, through its proprietary regime,

triggers productivity. Lawrence Lessig has observed that “a great deal of creativity

would not exist without the protections of the law. Without the law, the incentives to

produce creative work would be vastly reduced”134. This incentivisation goal

underpins the standard economic rationale, which perceives creative works as public

goods and believes that copyright law functions as a protection to these incentives and

triggers further investment in the creation of works135.

Two main counter-arguments have been enforced to invalidate the

aforementioned rationale and therefore vitiate the importance of the property factor 131See J.Smiers et al (2005) & A.Story et al (2006, 168pp).132The default “all rights reserved” means the position that attaches to a copyrightable work the minute it is made, often without the creator’s knowledge and the status quo “all rights reserved” means the model that serves as the standard business model for most copyright-based industries to date”.M. Garlick, “Creative Humbug? Bah the humbug, let’s get creative!”(2005) Indicare Blog, http://www.indicare.org/tiki-read_article.php?articleId=124. (Accessed: 10/6/2006). 133P, B. Toth, “Personal feelings about the Creative Commons licenses” (2005) Indicare Blog. http://www.indicare.org/tiki-read_article.php?articleId=124. (Accessed: 23/7/2006).134L.Lessig, (2002, 107pp).135N, Elkin-Koren, (2005).

that both copyright law and CC project share. First, that “there is a wealth of

incentives that seem to suffice for the production and distribution of a great deal of

authorship over the Internet”136 and that economic rationale’s approach “denies the

great amount of work that is produced without the motivations of copyright, such as

the work of academics and the work of indigenous people”137. And second, that

contrary to copyright theory and discourse, which have always underscored authors’

rights and have sought to provide security to those who involve themselves in the

creative process, reality shows that ultimately copyright law serves the needs and

interests of the content industry, since most of the times the author will assign the

intellectual property work explicitly, in return of royalty payment or implicitly to his

or her employer by virtue of the employee-employer relationship.

Albeit correct, the foregoing counter-arguments have missed a very important

detail. In fact, the problem does not lie in general with an “erroneous” economic

rationale and its alleged triggering effects to creativity, but rather with the wrong

allocation of the benefits this incentivisation produces. Current copyright law has not

managed to protect the needs of individual creators, because it has been totally

oriented towards intermediaries’ benefits. It has been said that “copyright favours the

firm rather than the artists in the cultural industries” 138. Indeed, the content industry

rips off almost all revenues from the artistic effort. On the contrary, CC focuses on the

needs of individual creators. By giving authors the opportunity to launch the product

of their creative labour individually, without the need of financially powerful

intermediaries, it manages to reallocate the benefits that a proprietary regime can offer

among the real creators. Its stance is clearly manifested through its motto “no

middleman, no legal doubt, no friction”139.

CC’s lack of political position

136J. Litman, (1997). 137A.Story et al, (2006, 169pp).138R. Towse. , Creativity, Incentive and Reward: an Economic Analysis of Copyright and Culture in the Information Age (UK and Northamptom: Edward Elgar Publishing, 2001).139See Creative Commons, Reticulum Rex, http://creativecommons.org/learnmore. (Accessed: 30/7/2006).

CC “cultivates a commons in which people can feel free to reuse not only ideas, but

also words, images and music, without asking permission...” 140 CC seeks to create a

“free culture” underpinned by an ethos of sharing, public education and creative

interactivity141. Yet, despite these efforts, questions surrounding CC project’s aims

and intentions, have led to immanent critiques, basically oriented towards CC’s

foundations, especially lately, that CC has been commonly associated with the notion

of libre culture in that it forms its “public face” 142, its representation in societal

grounds. Both the idea of “Free culture” and the notion of the “commons”, which are

inevitable parts of CC tenet and philosophy, have been subject to interrogation and

have been fiercely characterised as reflections of a vague and blurry conceptualisation

of the meaning of the public domain.

Recently, a vicious polemic critiquing CC has argued that, due to the project’s

reliance upon an "ideology and worldview that agrees too readily with that of the

global 'creative' and media industries," and given that it is "quick to accept the

specious claims of neo-classical economics, with its myopic 'incentive' models of

creativity and an instrumental view of culture as a resource”, has failed to “confront

and look beyond the logic and power asymmetries of the present”143. Therefore, CC is

viewed as a capitalistic structure of a commons that stands within the "realm of

private ownership (Res Privatae)" and does not reflect anymore its historical

perception as "Res Communes", meaning the public goods that lie outside of the

property system (like air, and water).

Initially, it is the meaning of the “commons” within the spectrum of CC

licensing scheme, which is fiercely interrogated. The critique, founded upon a

misinterpretation of the word “commonalty” infers that CC advocates a “commons

without commonalty”144. Particularly, it is claimed that commons are shaped through

commonalty and common rights and should be resistant to any form of privatisation

like the one CC licensing scheme provides. Conceptualising the commons as an

ethical and not just a legal matter the critique turns against CC and presents it as a

140Creative Commons, Legal Concepts-The Commons, http://creativecommons.org/about/legal. (Accessed 31/7/2006).141See Creative Commons, Creative Commons FAQ, http://www.creativecommons.org/faq. (Accessed: 31/7/2006).142D. Berry & G. Moss, “Is the Creative Commons Missing Something?” (2005), On the Creative Commons: A critique of the commons without commonalty, Free software magazine, http://www.freesoftwaremagazine.com/articles/commons_without_commonalty/.(Accessed:10/5/2006) 143D. Berry et al, (2005).144D. Berry et al, (2005, 3pp).

mere legal regime, which in a bureaucratic manner seeks to implement the sharing of

communication and culture through carefully drafted and dense legalese.

But what does a “common” mean? Is CC a mere legal construction totally

oriented towards a capitalistic notion of private culture and communication?

CC perceives the idea of the commons as an access to pre-existing works, a

procedure that facilitates creativity145. This is exactly the belief surrounding the

meaning of the commons nowadays, that is, a set of resources that the society

recognises as being accessible to any of its members146. The answer that CC system

gives to those who question the kind and degree of this accessibility, is that the access

pertains to the resources lying between the improvable extremes of “all rights

reserved” and “no rights reserved” and must not exceed the limits set out by the

individual creators. Besides, at its core, being a commoner means, “that people

believe in artist’s freedom to engage in the kind of flexible offering of their rights that

(CC) enables” 147.

With respect now to criticisms claiming that CC and its proprietary regime

encourage the privatisation of cultural goods, it must be said that, what CC actually

endorses is not the idea of privatisation, but rather that of ownership. Ownership and

privatisation have not tantamount meanings. While privatisation always entails the

idea of ownership, ownership does not always mean privatisation. Privatisation means

the transfer of property from a government to a privately owned entity, while

ownership is generally the state of somebody being an owner, either privately or as a

co-owner, who has a legal right to the possession of a thing. And this latter idea of

ownership, which is the one as well CC fosters, is very much connected to the idea of

the “commons”. In particular, despite the fact that ethically the word commons

communicates a meaning of something that is not owned, the commons was and still

remains a subset of public goods formed under the general concept of ownership.

Historically most rights of common were “annexes” to particular parts of land

and the commoners , those who had a right to exercise a right of common, were, for

145“Creativity always builds on the past” claims the short video describing the aims of CC and explaining the way it works. Justin Cone, Building on the Past, http://www.creativecommonsorg/learnmore. (Accessed: 1/8/2006). 146See http://en.wikipedia.org/wiki/Commons. (Accessed: 1/8/2006).147The Basement Interviews , Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th April 2006.http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf (accessed 12/6/2006).

the time being , the owners of the land148. In fact, in those days, the “commons” were

not “Res Communes”, a public resource owned by the society as a whole149, but a

right restricted to a commoner, a land owner. But even nowadays, that the commons

basically reflect a wider idea of common property, that is, resources owned evenly by

every member of the society, the society itself recognises only a limited number of

people that may use the resource at any given time. From the aforementioned it

becomes clear that both the ideas of the “commons” and property have been always

intertwined and that the proprietary concept that underpins CC’s licensing structure

does not stand at odds with the word “commons”.

In addition, those believing in CC’s lack of political position moved on to

denounce its aim to create a field of free culture. Their main argument has been that a

creative field of concepts and ideas cannot be achieved through legal mechanisms

such as CC’s licensing scheme, but through political action, political awareness and

democracy150. The objection of the regulatory effectiveness of such legal mechanisms

stems from a notion that the law and the state have been perverted by governmental

forces and economic persuasion.

Although tenable, the point misses a very important detail. CC, apart from

providing a so-called capitalistic legal structure, which is pragmatically compromised,

deeply acknowledges that free culture is basically a matter of values. However, CC

has chosen a rather unusual way to achieve these values and materialise the transition

to a state of political awareness. Particularly, CC has decided to establish certain

social practices related to exercising legal rights. This decision seems in fact to be

very wise, especially given that socially desirable goals cannot be accomplished

instantly, like some critiques naively propose151, but through preparatory social

arrangements. Therefore, reprehending generally the law and applying this

generalisation upon social structures, such as CC, which make use of the law in order

to communicate their goals, is a rather precarious tactic, which should be totally

discouraged.

What is more, a “commons”, which is what CC encourages, is actually a legal

regime, in which “multiple owners are each endowed with the privilege to use a given

148See http://en.wikipedia.org/wiki/Commons. (Accessed: 1/8/2006).149“While that may have been true more than a thousand years ago, when waste would be used for grazing by the local community and over which there would not be, nor would there need to be, any particular limit or control of usage” See http://en.wikipedia.org/wiki/Commons. (Accessed: 1/8/2006).150D. Berry et al, (2005, 3p).151D. Berry et al, (2005, 3p).

resource, and no one has the right to exclude another152”. Therefore it is the very

nature of the “commons” resources that ask for control. Indeed, the commons consist

of cultural and natural resources, of finite but replenishable public goods, which are

further subdivided into rivalrous (land, computers) and non rivalrous (ideas, music)

public goods that require responsible use in order to remain available153. In particular,

the rivalrous resources need a system of control to assure that they will not be

depleted, while non rivalrous resources need a system of control to assure their

creation. This control cannot be totally ensured, but through a system of management,

such as the legal system provided by CC.

But can contractual transactions alone offer an attractive alternative to the

recent enclosure of the public domain? Can contracts alone offer a viable solution to

the default property rule that traditional copyright law has established? These and a

series of other questions, oriented towards more practical issues of CC’s licensing

scheme than the theoretical ones discussed above, have led to the formation of further

critical groups, which advocate CC’s lack of enforceability and of a so-called

“common sense position”.

CC’s lack of enforcement ability

By underscoring the critical role of the enforcement of legal licenses against third

parties, critics154 of CC’s licensing scheme challenge its enforceability and the success

of its long term goals of sharing and reuse, especially considering its Share Alike

provisions155, which form the legal mechanism through which CC seeks to establish

rights against third parties. Taking into consideration the fact that creative works are

used and reused over and over again changing shapes and sizes, while being

embodied into new form of expressions, it becomes obvious that the enforceability of

legal licenses against their direct contracting parties is not sufficient and that

subsequent users should as well be subject to the terms of the original license, so as to

152M A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets (1998) 111 Har.L.Rev.621, 623-624. 153L.Lessig, (2002, 93-95).154See N, Elkin-Koren, (2005, 12pp) & P, B. Toth, (2005).155Attribution Non-commercial Share Alike licenses let others tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Attribution Share Alike licenses let others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms.

prevent the licensing scheme from becoming absolutely meaningless. Using as an

example the Non-commercial use close, which subsists in almost fifty per cent of CC

licenses156, critics ask “how could an individual author (in that case) control the uses

of his or her works, since there is not possibility to monitor these uses and especially

the incomes of the user?” 157 “What types of legal claims does a right holder have

against third parties who failed to comply with the terms of the CC license?” 158.

Initially it must be said that the aforementioned questions should be addressed

to all kinds of models under which creative works are licensed and not only to CC’s

licensing scheme. The issue of realising when a person has infringed a license term

applies equally to all kinds of licensing schemes and constitutes a challenge for all the

organisations that license creative works, no matter if they are collecting societies or

the CC.

Besides CC is only an enabling organisation that provides tools to artists who

seek to communicate their work to the public. It does not get itself involved in the

contractual relationship between the artist and the user and therefore it does not and

has not any obligation to provide legal advice or assist individual artists to enforce

their rights. However, although disassociated from this responsibility, CC, whenever

asked to assist people to enforce their rights and to the extent that this is possible, it

seeks to detect a suitable volunteer legal service in the interested party’s jurisdiction

and directs the inquirer to that service159. Therefore allegations that CC “simply shrugs

their shoulders” when asked for relevant help, are definitely ill founded and false160.

Moreover, since CC licensing scheme does not abolish copyright, but rather

uses it as a foundation to build its licenses, it manages to retain for the sake of those

who make use of its licenses all legal claims that may arise from a copyright

infringement, rendering thus these claims still enforceable under its regime.

Therefore, when a work has been appropriated in a way that it is covered by

copyright, the right holder can still simply enforce his or her copyright claims against

the third party in the old traditional legal way, namely by filing lawsuits against the

infringer. For instance, if the appropriation concerns an original work that did not

authorise commercial uses, any use for commercial purposes that was not covered by

156A. Wiesand & D. Cliché, “Survey of Artists’ Rights”, in the third session of the European Cultural Parliament (Genova, Italy, 2004).157P, B. Toth, (2005). 158N, Elkin-Koren, (2005, 13p).159M. Garlick, (2005).160P, B. Toth, (2005).

the license will amount to copyright infringement and will enforce all legal claims

against the appropriator. Property rules as such, which underpin property licenses,

render the restrictions imposed by the license enforceable, without requiring any

voluntary consent. At this point of course one might wonder “What happens when the

licensor seeks to create new rights, not enumerated under copyright law?161” for

instance “What happens in case a third party fails to comply with the terms governing

a Share Alike and Attribution license?” 162.

Apart from the solution contractual law offers through its views towards

online contracts163, the solution CC has developed so far is not to allow people to

waive their moral rights. Moral rights are perceived as the extension of the author’s

character and personality. Since personality is not transferable, the author always

retains the moral rights, even after he or she sells or transfers the copyright to another

person or enterprise. According to Article six of the Berne Convention 1886, moral

rights include the right of attribution and right of integrity164. The right of attribution

confers the true author the right to have his or her name on the work, whereas non-

authors are not permitted to have their names attached to the authors work. Therefore

the owner of the CC license can file a suit against whoever failed to comply with the

attribution term of the license anywhere, since that would constitute an infringement

of his or her moral rights. CC does not change or modify moral rights, like some

jurisdictions do165, but instead seeks to make it easier for copyright to be negotiated

and the recognition of moral rights respected. The structure that CC tries to facilitate

is to enable interoperability of copyrights by keeping as a background the existence of

moral rights166.

161N, Elkin-Koren, (2005, 13pp).162See http://creativecommons.org/about/licenses/meet-the-licenses.163Unlike typical contracts that create rights in personam and can be only enforced against parties, who have consented to the terms of the agreement, online contracts, such as CC licenses, are enforceable against third parties based on very little proof of consent. Shrink-wrap licenses, for instance, were enforced even when the licensee got to know about the license’s terms only after the computer program was bought. The licenses used to be distributed in a printed format within the plastic wrap of a hard copy of a computer program. The printed text formed an offer, while tearing the plastic wrap before making use of the program was considered to be an acceptance. Furthermore see, e.g., ProCD Inc v Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996). 164Article 6, Berne Convention for the Protection of Literary and Artistic Works 1886 (1971 revision with 1979 amendments).165There are significant differences between the Anglo-Saxon copyright law and continental droit d’ auteur systems. 166Lawrence Lessig on Creative Commons and the Remix Culture, Talking with Talis, An interview posted by Paul Miller, January 2006 http://talk.talis.com/archives/2006/01/lawrence_lessig.html. (Accessed 5/6/2006).

In addition, nowadays there is as well a judiciary basis, upon which it can be

proved that CC licenses are indeed enforceable and they represent and respond to the

needs of artists. In March 2006 a Dutch court confirmed that “the conditions of a CC

license automatically apply to the content licensed under it, and bind users of such

content even without expressly agreeing to, or having knowledge of, the conditions of

the license”167.

CC’s lack of common sense position

Critiques that have been shaped within this contentious camp, found their judgements

upon the idea that CC deprives users of their rights168. In particular, it has been

claimed that “CC licenses are even more extortionary than an exclusive “buy-out”

contract from a global media company, where the author at least gets some money,

and according to the legal regulations can revoke the license in some circumstances.

To bring another example, a collecting society is obligated to give the possibility to its

authors to “take back” their rights if they are not content with the working of the

society”169. The aforementioned remark inaccurately compares CC’s licensing scheme

and European collecting societies. In effect a large amount of European collecting

societies appear to be rather possessive, in that, apart from requiring creators to assign

their license for a specific work, they demand to be conferred the ownership of certain

rights in each and everyone of the creators’ present and future works. Conversely,

CC’s licensing scheme applies only to those works that the individual author opts out

to be governed by CC’s legal regime enabling the artist to retain his or her ownership

on the cultural output and decide what kind of freedoms he or she wants to assign to

third persons. What is more, communicating a work under a CC license does not

require application of a CC license to any other work. In this way, a creator,

uncommitted to any binding legal terms, is given the opportunity to experiment with

CC’s licensing model and as long as a Non Commercial license option is chosen, the

creator may retain as well the right to collect royalties under statutory or compulsory

licenses. This last remark reveals as well the non-exclusive character of CC licenses,

167Out-Law Com, “Dutch Court Upholds Creative Commons License” (2006), The Registry http://www.theregister.co.uk/2006/03/22/creative_commons_dutch_court_ruling/. 168http://en.wikipedia.org/wiki/Commons . 169P, B. Toth, (2005).

which may coexist with different types of licenses, such as a revenue generating

license.

Moreover, although strongly criticised for not helping creators to generate an

income, the project’s wide public acceptance and adoption to date proves rather the

opposite; CC’s inarguable success. CC’s project leads are carrying out the adaptation

work in each jurisdiction170 and individual creators in numerous jurisdictions around

the world have adopted CC licenses. “Within a year of launching the project, there

was about a million link backs to the licenses; at a year and a half this had grown to

around 1.8 million. By two years it was about 4 million and today (2006) the number

is over 20 million” 171. The main ways that artists can employ in connection with CC

licenses, so as to avoid giving away their work for free, are the following. CC licenses

can be applied to a specific format of works, namely to online works. The exposure

that these works have on the net encourages their awareness and thus substantially

increases the likelihood of their selling in a different format. For instance, a book

released online under a CC license can be as well sold in the form of hardcopies in the

market172. In that way, any creative work gains at least the potential to catch the

attention of somebody, who may be interested in using it in a commercial project or

for publication and this, is very important, especially considering that “eighty per cent

of all the music ever released isn’t for sale anywhere in the world”173.

In addition, CC ensures that the people viewing a creative work know under

what terms they can use it therefore enabling them to enter into commercial deals in

relation to the work. Nowadays through the use of CC’s specific search engines that

can detect CC metadata, the location of CC licensed works has become even easier,

facilitating thus the access to individual creativity174. Finally, CC’s licensed works 170For example in Germany, CC collaborated with professor Dr. Thomas Dreier, Ellen Euler, and Oliver Meyer at the Institute for Information Law at the University of Karlsruhe and Institut fur Rechtsfragen der Freien und Open Source Software (ifrOSS) to adapt the licenses for Germany quoted in M. Garlick, (2005). 171The Basement Interviews , Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th April 2006.http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf (accessed 12/6/2006) & M. Fitzherald, “Copyleft hits a snag” (2005) Technology Review. http://www.technologyreview.com/InfoTech/wtr_16073,300,p1.html. 172The book “Free Culture” written by CC Chairman & CEO Lawrence Lessig although released under a CC Attribution-Non Commercial use license, it is now in its third print run.173B. Bodo commenting on Toth’s, “Personal feelings about the Creative Commons licenses” (2005) Indicare Blog http://www.indicare.org/tiki-read_article.php?articleId=118#comments. (Accessed 7/7/2006).174Andy Raskin reported in Business 2.0 Magazine that Allan Vihlan, a Slovakian musician, by making his music (trip rock) available under CC licenses, managed to generate to date a profit of more than $ 1,000. A. Raskin, “Giving it Away (For Fun and Profit) Creative Commons Encourages Artists to

function as an advertisement to a creator’s talents and encourages further

collaboration with other creators, which can perhaps lead to unexpected

opportunities175.

Covering both online and offline works176, CC licenses constitute a pragmatic

response, a marketing tool for all kinds of creative activity. Indeed, there has been

already some considerable time, since book publishers, musicians, film makers and a

variety of people interested in viewing their work online have started experimenting

with CC’s licensing opportunities and have been more than excited by the potential it

offers. “Down and Out in the Magic kingdom” is Cory Doctorow’s novel, which was

published under a CC license. This novel was re-licensed under an expanded CC

licence in March 2003, which additionally allowed non-commercial derivative works.

The author stated that the commercial success of his book owes a great debt to CC’s

licensing terms177. People need answers and these can be solely given by pragmatic

structures, such as the licensing scheme CC has to offer. Even huge cultural

conglomerates, such as publishing houses and music companies, “the traditional

gatekeepers”178, have embraced CC’s new challenge. Steve Fabrizio, the once Chief

litigator of the Recording industry Association, had said that “it’s farfetched, but not

impossible, to envision a top label embracing Creative Commons…if Creative

Commons builds enough brand awareness and respect for what it means, I see no

reason why record companies that want pre-authorise limited use of a work wouldn’t

think it was a great idea”179. The recent collaboration between CC and Microsoft

Share and Distribute their Work for Free. And that Could Be the Key to a New Multibillion-Dollar Industry” (2004) Business 2.0 Magazine, CNNMoney. Com, http://money.cnn.com/magazines/business2/business2_archive/2004/05/01/368240/index.htm. (Accessed 10/6/2006). 175For instance MinusKelvin, managed through publishing his works to ccMixter (a site created by CC that enables people to post their music to the site under a CC license that permits remixing), to sign a contract with Runoff Records Inc and at the same time to collaborate with another ccMixter musician, Pat Chilla to a big project, that is, the creation of music for the next three seasons of America’s Next Top Model.. 176 The only difference between applying a Creative Commons license to an offline work and applying it to an online work is that offline works will not include the metadata and, consequently, will not be identified via Creative Commons-customised search engines. 177 The Basement Interviews, Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th April 2006.http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf (accessed 12/6/2006).Another interesting example is MIT, which has licensed all its open courseware projects under CC licenses. http://ocw.mit.edu/index.html. 178The Basement Interviews , Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th April 2006.http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf (accessed 12/6/2006).

comes to materialise Fabrizio’s prediction, proving at the same time people’s

acceptance of CC freedoms and generally their respect towards CC’s initiative180.

Additionally, the fact that CC’s statutory framework does not have a

retrospective effect and its regulations cannot be applied upon already published

works or music that are still under the banner and restrictions of copyright laws,

should not be condemned. CC forms a new alternative to current copyright regime

and similarly to every new legal mechanism that wants to be successful in its aims, it

seeks to bring change, without however provoking massive commotion to the already

existing copyright structure. Besides, there is already a considerable amount of

creative material resting in the public domain, a comforting reality to those who fear

that almost all the current material is restricted by copyright laws181. Particularly,

according to a recent analysis182 conducted upon thirty six million catalogue records

for books in the Research Libraries Group (RLG)183 database, six point five million of

these books published in a variety of languages, such as English, French, German,

Italian, and Spanish, are in the public domain. Moreover, according to Lawrence

Lessig, less than two per cent of the ten thousand and twenty seven books published

in the United States in the 1930s are still in print, and the number of out-of-print

books goes far beyond the number of in-print books throughout subsequent

decades184.

CC is an ambitious, however realistic, legal scheme that seeks to address the

needs of a varied group of users, exploiters and creators of very diverse backgrounds

and countries. Its schedule covers a wide range of needs for right holders of different

kinds. CC facilitates the proliferation of different licenses and through this legal

structure it seeks to change social practices that recently have turned individuals

against the fundamentalist copyright regime. “Changing social practices has a

powerful and highly important signalling effect” 185. Besides, the problem does not lie

with copyright per se, but rather with the way copyright owners make use of their

179D. Flint, “Looking a Gift Horse in the Mouth?” (2005) Business Law Review, Current Comment: computers and Internet, 7pp.180B. Hogge, “What moves a movement” (2006) Open Democracy, Free Thinking for the World, www.openDemocracy.net & A. Gonsalves, “Microsoft Adds Licensing Tool to Office” (2006) Bussiness Technology Network, http://www.techweb.com. (Accessed 31/7/2006).181A.Story et al, (2006, 169pp).182D, T. Covey, “Acquiring Copyright Permission to Digitize and Provide Open Access to Books” (2005) Digital Library Federation and Council on Library and Information Resources.183See http://en.wikipedia.org/wiki/Research_Libraries_Group. 184L.Lessig, (2004b).185N, Elkin-Koren, (2005, 20p).

rights and with people’s disobedience towards the law, because the latter does not

“stick in their heads” 186. CC is an effective and sustainable alternative to the current

copyright regime and especially to the default and status quo “all rights reserved”,

which establishes enforceable legal measures and has been endorsed by people

throughout the world. However, some people believe that conceptualising an

alternative to the current regime requires copyright’s abolition and thorough

replacement by a totally different system. This has been exactly the case with Smiers’

alternative model.

Chapter 3

Imagine a world without copyright187

Some scholars have found a radical substitute of copyrights to be a laborious task and

an unrealistic proposal188. Accordingly they claim that “There is little that can be done

to break it (copyright) down (and) any attempt to do so would cause massive

economic and social destabilization” 189. The solutions they propose rather resemble

the philosophy underpinning CC’s project, that is, the idea of “removing some of the 186J. Litman, (1997). 187J. Smiers et al, (2005).188 Such as the scholars involved in CC project, L.Zemer in “Rethinking Copyright Alternatives” (2005) International Journal of Law and Information Technology, Vol 14, No , 139-140 and others.189F. Macmillan, “Copyright and Corporate Power”, in ed Towse, Copyright in the Cultural Industries (UK: Edward Elgar, 2002).

props on which the power rests, so that it loses some of its stability to self-perpetuate

and grow exponentially (and the idea of) making private power more publicly

accountable” 190.

Yet, although there is a rigid objection towards a reform that would be

tantamount to copyright’s abolition, an objection that seeks to avoid the reappearance

of a Lockean, chaotic state of nature, there is still a group of people, who strongly

advocate a systemic elimination of contemporary copyright rules191. Based upon a

series of reformist views, already articulated in the early period of twentieth century

by economists, such as Plant and Breyer, who advocated a system of “private or

public patronage in the form of grants and prizes” 192, Joost Smiers and Marieke van

Schijndel recently193 presented a thought experiment (from now onwards called the

“Smiers alternative”), which seeks to go a bit further, than merely observing and

criticising copyright. This new alternative addresses what they infer it is the most

significant question of all: “If copyright is inherently unjust, what could come in its

place to guarantee artists-creative and performing-a fair compensation for their

labours, and how can we prevent knowledge and creativity from being privatised?” 194

This alleged inherent unjustness stems from the basic reasoning of all

reformative efforts against copyright, that is, “The once sympathetic concept of

copyright is turning into a means of control of the intellectual and creative commons

by a very limited number of industries” 195, at the expense of “cultural democracy and

diversity. Artists, third-world countries and the public domain all suffer from a

copyright that has been turned into a trade tool”196. Upon this reasoning, the abolition

of the present dysfunctional copyright system seems to be the only solution to the

problem.

Smiers alternative puts cultural entrepreneurship at the central stage and

advocates that artists, producers and patrons are entrepreneurs with a risk prone

190F. Macmillan in ed Towse,(2002).191Among these few, Joost Smiers is one of the most prominent.192R. Towse. , Creativity, Incentive and Reward: an Economic Analysis of Copyright and Culture in the Information Age (UK and Northamptom: Edward Elgar Publishing, 2001).193The alternative was presented on Saturday, October 8, 2005 in an academic paper, called “Imagine a World Without Copyright”, published on Herald Tribune. The alternative has been rigorously elaborated by M. Van Schijndel & J.Smiers in a paper called “Imagining a World Without Copyright” (Essay, London: Birkbeck, 2005). 194J.Smiers et al, (2005).195J. Smiers, Arts under Pressure: Promoting Cultural Diversity in the Age of Globalisation (London: Zed Books, 2003) 60pp.196J. Smiers, (2003, 60pp).

mentality and are involved in competition. The alternative is founded upon the

opinion that the economic aspects of copyright must be seriously taken into

consideration and upon the perception that authors and artists seek to create an

audience, which will both consume and enjoy their products and ideas. The structure

this new proposal adopts stands upon a central idea of cultural entrepreneurship. That

attribute is conferred through a three-pronged road concept upon three different types

of entrepreneurs. The first type is the artist or author, when the initiative to create

stems from his or her individual desire, the second type is the patron, when the piece

of work has been commissioned and finally it is the producer, who is the person that

undertakes responsibility and bears the risk of the artistic venture. Smiers’ alternative

model outlines mainly three phases; the market, where the cultural entrepreneur

experiences a competitive advantage regarding the collection of revenues for the

creation or performance of the work, second the phase of a temporary protected

usufruct, when high risk and investment are involved in the realisation of the creative

works and finally the phase of subsidies, when the market lacks the resilience to

finance a certain type of artistic work, but there are reasons making this type of work

or form of expression still necessary. The key principle of the proposed solution in all

three cases is that works fall immediately in the public domain.

Although very promising, Smiers alternative can be challenged in three of its

main aspects; the main goal that underpins its proposals, that is, the abolition of

copyright, the principle that serves as its groundwork, that is, the falling of all cultural

output in the public domain and finally the alternative structures it proposes, that is,

the market and the substitute schemes of subsidies and temporary protected usufruct.

Abolition of copyright and the dominance of the public domain

By advocating the abolition of copyright, Smiers alternative fails to recognise some of

the advantages property rights in creative works offer. Entrenched property rights in

creative works provide right holders with controlling power over some uses of their

work and preserve their right to collect royalties whenever they see fit. What is more,

the assertion of property rights encourages collaboration with market players and

gives the creative product commercial power. Claiming property rights, legally

endows authors to defend the fruits of their creative inspiration and effort against

capture and commercial exploitation. Of course it is without doubt that social

motivation, which stems from cultural norms that advocate collaborative research and

the idea of gaining status in a gift culture197, constitutes as such a key power in

inspiring thousands of volunteers around the world to offer their talent and time to

produce free of charge online informational tools (homepages, blogs, and computer

programs) in the lack of any direct monetary reward198. However, the use of works for

commercial purposes, without compensating the original author, may weaken his or

her desire to share them. Zimmerman suggests that nowadays that creative works have

turned out to be economically successful, authors are as well concerned with

economic rights and the disparity between the price they are paid and the profits

earned by publishers, causes them a great distress199. Therefore, if there is any greed

involved in the proprietary regime copyright law establishes, it is the need to

safeguard authors from the greed of those, who want to own something created by

somebody else, without getting the creator’s consent, or compensating them in any

way for the skill effort and labour put into the creation.

Apart from recognising some of copyright system’s benefits, the

aforementioned analysis makes as well clear that Smiers alternative has erroneously

taken for granted that all sorts of cultural creators want to make their things available

to the world at large, rather than exerting their rights to ownership. Indeed there are

some people, who either because they create for their sheer joy or because they share

a certain ideology about “sharing” morality, they quit ownership of the thing created

and make it available to the public. However, this should be the result of a free

individual decision and I mention that, because nowadays that copyright laws have

already trained humanity in owning the products of its creative labour, it is very

difficult to launch an idea of sharing for free. That means people should not be forced

in giving away for free their creative works, exactly like, for instance, “not any

carpenter is forced to build a house for free” 200.

197K. Veltman, “On the Links Between Open Source and Culture” (2002), http://erste.oekonux-konferenz.de/dokumentation/texte/veltman.html (Accessed 16/8/2006). 198Patten says that Dickens published a number of sketches in Monthly Magazine from 1833 to 1835, without receiving remuneration for them. R, L. Patten, “Charles Dickens and His Publishers” 55 (1978) 15-16 & J. Lerner & J. Tirole, “The Simple Economics of Open Source” (2000) 26-28, http://www.people.hbs.edu/jlerner/simple.pdf (Accessed 16/8/2006). 199L. Zimmerman, “Authorship Without Ownership: Reconsidering Incentives in a Digital Age” (2003) 52 DePaul L. Rev. 1121, 1137-1143. 200R. Linder, “Copyright Alternatives” (2004),http://elftown.lysator.liu.se/_Copyright%20Alternatives%20and%20Copylefting (Accessed 10/6/2006).

The market and the first-mover advantage

The main goal of Smiers alternative is to distance ourselves from the “protective

corral” 201 of property rights that current copyright system automatically imposes upon

creative works. Perceiving artists, their producers and patrons as entrepreneurs, the

new model finds the current system of institutionally protected artefacts strange and

instead of that, it launches a new idea of marketing works from the moment of their

release onwards. The model suggests that the protection once provided by copyright,

will now be guaranteed to the so-called entrepreneurs through a “competitive

advantage period” that follows shortly after the product has been released in the

market. Besides, the model claims that entrepreneurship involves risk-prone mentality

and competition, two preconditions that current copyright mechanisms and their

automatic bestowal of property rights do not permit to evolve. Upon the

aforementioned argumentative basis the model finds no good reason for reducing

entrepreneurial risks and therefore no good reason for copyright to exist.

But is this true? Is there any slippery slop within these arguments that may

inhibit the model’s fruition? Is it really so simple to replace copyright’s dysfunctional

system, by merely calling those involved into the creative process entrepreneurs?

During a workshop that took place in the third session of the European

Cultural Parliament in December 2004, Marieke van Schijndel claimed that “Our

model does not make the division between commercial and non commercial culture-

rather it considers everyone involved as entrepreneurs, whether or not they want to

make a profit on it. They are always operating in a commercial sphere” 202.

This statement presents a model, which fails to give credit to the real author,

namely the one who has put skill effort and labour to the realisation of a certain work.

Smiers and Schijndel use the expression “locus of impulse”, in order to refer to the

initiative to create and claims that this can either initiate by an artist, a patron or a

producer. Upon this argumentative basis Smiers alternative apparently seeks to

explain the priority given to the role of the entrepreneur within the creative procedure.

Even though well-founded, the justification hollows in that it overlooks that, without

201A. Wiesand & D. Cliché, “Survey of Artists’ Rights”, in the third session of the European Cultural Parliament (Genova, Italy, 2004).202A. Wiesand (2004).

particularly the existence of artists or authors, who are the exponents of artistic

creation and the main suppliers of the cultural output, neither a patron nor a producer

would have any significant power or decisive role within the creative procedure. By

blithely equating the three roles, the model seeks to launch a purportedly pragmatic

concept that sees in all occasions one and only person, or institution that makes itself

responsible and accountable to give the creative project momentum203, the

entrepreneur. In a few words, what this model does is to offer solutions to

entrepreneurs, overlooking however that these entrepreneurs are in effect the bunch of

intermediaries, patrons and producers, who rip off artists’ rights, before the creative

work enters the “equitable” terrain of competitive market. In effect, before a creative

product is marketed, a long procedure of arrangements is involved to give the artistic

project “momentum”. These activities, let us know, are not always for the benefit of

the artist, but rather serve the ends of the content industry. But, even if we take the

entrepreneurial lead for granted, how it is possible for individual creators, such as

small press poets and small label bands, to enter a free market, let alone the vicious

competition free markets entail, without the assistance of a serious infrastructure, like

the one for instance the licensing scheme of CC offers?

Although there is obviously a series of questions already challenging the

entrepreneurial lead, Smiers alternative takes the latter for granted and moves on to

argue about the competitive advantage the entrepreneurs have, as first-movers in the

market place, when creating or performing a work. In particular, the first-mover

advantage refers to the lead time the entrepreneurs have over prospective competitors,

to screen the market and ask a good price for their new cultural product. What the

model wants to prove is that, while the work falls immediately in the public domain,

the competitive advantage most artists possess, is enough to protect creators’ rights,

impairing thus the efficiency of ancillary forms of protection, such as copyright.

While the aforementioned analysis recalls very important economic theories,

articulated in the early period of the twentieth century (1934)204, strong counter

arguments, derived from nowadays reality, make us realise that the analysis is rather

founded upon theoretical imaginaries.

203A. Wiesand (2004).204In 1934 Plant stated that “publishers should rely on the temporary monopoly of lead time to establish new products in the market...” quoted in R, Towse. , Copyright and Cultural Policy for the Creative Industries (2003), in ed. O, Granstrand Economics, Law and Intellectual Property (Netherlands: Kluwer Academic Publishers, 2003 19pp.

The first-mover, namely, the first person to bring a work to market, is not

always a successful mover and this because he or she does not always have, like

Smiers alternative proposes, an advantageous position. In effect, the alleged

advantages do not lie with whoever is a first-mover, but with whoever is a first-good

mover. To further elaborate the argument, it is enough to recall occasions of creative

output, which although launched in the market at one point by a so-called first-

mover, it did not receive any “decent” price or return, but only when a third person,

probably a wise second-mover, managed to give the new product marketing power

and thus to make it desirable for consumers to purchase. This was exactly the case

with Keaton’s Steamboat Bill, a cartoon created in 1928, which formed the inspiration

for Walt Disney to create a similar comic, called Steamboat Willie205. Steamboat

Willie constituted the trigger of a creative chain of Walt Disney works, such as

Mickey Mouse, that finally led to the establishment of Disney Corporation’s

hegemony in the field of cartoons and animation. But why is Disney’s creative works,

including Steamboat Willie, better known in the market than Keaton’s works? Did not

Keaton have the so-called first- mover advantage? And even if he had it, but he was

not a successful entrepreneur, is it right to advocate a social norm that adopts the view

“the stronger wins and the weaker is superseded?” I would say that this kind of

purportedly libertarian opinions about free market, which rather perceive the latter as

a vacuum space, without rules and legal protections, are really precarious in that they

encourage a state of societal anarchy.

With respect to the lead-time argument, Joost Smiers and Marieke van

Schijndel do not hesitate to recognise the change the age of Internet has brought to old

marketing concepts. Indeed, under circumstances of easier transmission of creative

and informational works, lead-time has been reduced to a few minutes or perhaps

hours. Under these circumstances the lead-time argument loses direct validity,

something that probably Smiers and Schijndel had realised when they went on to

supplementary propose a new regulatory framework of temporary protected usufruct.

By hastily responding to the change digital reality has initiated, Smiers and

Schijndel proclaim that “apart from the first mover advantage (the lead time), many

artists are able to add value or create advantages in other ways” 206.For instance,

focusing especially upon the field of music, they eulogise the power of “performing

205L.Lessig, (2004a).206J.Smiers et al, (2005).

qualities” and good reputation’s “signalling effect”207. What the model suggests is that

music concerts and direct contact performances are a very efficient market tool for

musicians to approach a public, which will not hesitate to pay for the products’ value,

even though it knows that shortly after the “lead time” period, it will get the creative

products for free.

First of all, what the model fails to realise, is that the alternative ways it

proposes to artists to gain profits from their investment, in case lead-time is not

helpful, are exactly the same with those ways already employed by artists, who seek

to add value to works governed by the current copyright system. Moreover, the

aforementioned opinion about the benefits of direct contact performances is just partly

true. Would live performances be enough to culturally awaken societies, used to sit in

front of computer screens downloading millions of songs at any given time, instead of

buying tickets and running to music concerts? Close to nine million users everyday

swap files through file sharing networks with over ninety per cent of these cases

infringing copyright protections208. It may be that copyright has lost its grip, but at the

same time there is an obvious societal indifference towards artistic rewarding.

Moreover, how the alleged performing qualities and reputation’s signalling effect

would look like, when applied to publication and media production?

Digitisation has given time another perspective. Once timeless procedures are

finalised instantly and the communication and swapping of information is just a

matter of a few minutes. Within the scope of nowadays digitised reality, lead-time has

become ineffective and without real application. The “lead-time” argument proves

itself to be an outdated marketing tool that may possibly find its way as “an

interesting feature for a future alternative to copyright: a system offering an artificial

lead-time to the original producers. This lead time could be adapted, for each industry,

to match the time necessary to cover fixed costs” 209.

Temporary protected usufruct

207J.Smiers et al, (2005).208“The Quiet Iconoclast: With KaZaA, Niklas Zennstrom undermined the music industry. Now he has telecoms firms in his sights” The Economist (2004), http://www.economist.com/people/PrinterFriendly.cfm?Story_ID=2876993&CFID=31537797&CFTOKEN=3999b72-17af8fe9-c612-4e0e-83e0-0ffaab264b26. (Accessed 15/8/2006).209S. Kagan, “Alternatives to Copyright” (MA CE & CE in Seminar Cultural Industries, March-April 2004).

Sometimes the realisation of a certain creative work, for instance the writing of a large

book, or the production of a film, requires a lot of money, in other words, substantial

up front investment. These occasions, which involve high investments,

entrepreneurial risks and uncertainty, may lead to the so-called “market failure”, “a

case in which a market fails to efficiently provide or allocate goods and services in

comparison to some ideal standard, such as the perfect competition model” 210. At that

point, some state intervention may be required. Based upon the aforementioned

argumentation, Smiers alternative launches the idea of a temporary protected usufruct,

a temporary protection offered to the investor, the entrepreneur, who is the one and

only person to bear the entrepreneurial risk, so as to be able to harvest the fruits from

his or her work, when the latter involves big investments211. The main advantage of

the suggested regulatory framework is claimed to be the prohibition of the emergence

of private property, conversely to what is the case under current copyright system.

Usufruct is “a right to use and enjoy a thing which is not our own, preserving

it whole and entire, without spoiling or diminishing it” 212. To demystify the definition,

usufruct is the right of a person to exploit the ownership of an item that belongs to

somebody else, by bearing the fruits of that property in an owner’s attitude. Under the

present system of law, usufruct can be only obtained, when it is derived from an

ownership title, namely if the person who owns something gives it to another person.

Smiers alternative founded upon a basic concept that creative works exist only in the

public domain and therefore their ownership is shared among all in the society and

belongs to the commons, argues that whoever obtains the temporary protected

usufruct has been given it from the public domain, where the artistic works,

performances and productions lie. The term of protection the model envisages is no

more than a year, a protection timeframe, which is a lot reduced compared to the one

established by the present copyright regime.

Temporary protected usufruct seems basically to be the model’s response to

the incompetence of the abovementioned lead-time business structure to comply with

the new reality the Internet has introduced, a reality that has become a real hurdle

210G. Guillory, “What Are You Calling Failure?” (2005) Ludwig von Mises Institute, http://www.mises.org/story/1806. (Accessed 16/8/2006).211J.Smiers et al, (2005).212J.Domat, The Civil law in Its Natural Order, (Boston: Charles C. Little and James Brown, 1850) 409pp.

especially regarding the realisation of works that require a rather substantial up front

investment. But is there really a threat of market failure that makes state’s

intervention indispensable? What is the meaning of a temporary protected usufruct

scheme? And can such legal structure be adapted homogeneously to all national

jurisdictions?

The objections towards the proposal in question do not stem from an

unreasoning optimism that free market is perfect and that there is not any reason to

talk about market failure and governmental intervention, but rather from a belief that

the term market failure is not a persuasive definition and has lot more to say, than the

sentimental word “failure”213. Failure occurs, when the outcome of certain actions

does not respond to the actions’ intended result. The problem with that commonly

used concept of market failure is that it does not depict the real meaning of market

failure that makes government intervention truly indispensable. Unfortunately, this

inaccurate definition seems to be exactly what Smiers and Schijndel adopt, when they

speak about market failure stemming form large investments, risks and the uncertainty

surrounding large authorial projects, whose revenues will not occur but much later of

their creation and entrance into the market. For them there is an action, a big

investment, whose outcome will probably not respond to the intended results of a

satisfactory reimbursement. However, market failure should not be evoked randomly,

but after relevant assessment of the preconditions under which it occurs. A critical

assessment of the term market failure and the conditions under which it occurs, are

deemed necessary, so as to examine, whether or not it can apply under the conditions

for which Smiers alternative evokes it in order to explain the need for the introduction

of a temporary usufruct regime.

Views vary regarding the precise meaning of market failure, under what

conditions it occurs, what will be the appropriate governmental authority to determine

it and who will define the policy that it must be pursued in each case214. The difficulty

to define market failure lies with the subjective nature of the market itself, which

although forming a social institution, it does not have to obey to a single set of goals,

against which its performance can be compared215. A series of various descriptive

states of affairs and particularly their outcomes, it is believed to have occasionally led

213G. Guillory, (2005).214G. Guillory, (2005). 215G. Guillory, (2005).

to market failure. But is substantial up front investment, like Smiers alternative

argues, included in these states of affairs?

Market failure arising from the fact that communication of information is

expensive and flawed (transactions costs) or from the fact that a particular good or

service may not satisfy consumers’ requests (imperfect information), or from the fact

that there are external economies (externalities and the theory of public goods216), are

probably some of the cases Smiers alternative seeks to avoid or defeat by introducing

the new legal institution of temporary protected usufruct.

However, the real meaning of market failure refers to a situation, where

human ability is substantially defective in achieving certain goods through voluntary

institutions, when compared to specific coercive ones217. Moreover, it must be proved

that these coercive institutions can be adopted by the government and that they will

not result in chronic government failure, meaning the government’s constant failure to

meet its stated goals. Only under the aforementioned circumstances, the case of

market failure demands government’s intervention218. Applying the foregoing

definition to Smiers alternative, it seems that the proposed regime of a temporary

protected usufruct will form the coercive institution, which will help entrepreneurs for

some time219 to profit from their costly creations and will replace for that time the

voluntary institution of public domain’s primacy, through which expensive creative

undertakings cannot succeed their goals in making money, because entrepreneurial

lead time is not enough for something like that. But can the public domain primacy be

considered as a voluntary institution?

Smiers alternative seeks to substitute the current copyright regime. Given

already the global existence and application of copyright laws within the nations’

jurisdictions, a specific social attitude has already been formed, with some people

wanting to share their creative output, while others seek to retain proprietary rights

216Creative works, which according to Smiers alternative fall immediately in the public domain, are considered to be positive externalities, in that their use contributes to the welfare of third or “external” parties. Just as in any business, any entrepreneur- music producer, who markets music, will have to bear all the costs (of labor, materials, etc.) but since music is an external economy, the entrepreneurs will be unable to reap rewards, especially within the almost inexistent lead time period of a first-mover that the model advocates. Benefits will be dispersed and enjoyed by people who have for free access to the pool of creative output, which according to the model should lie in the public domain. The claim is that music producers, responsible for all of the costs but only partially compensated for providing the benefits, would underinvest. W. Block, “Public Goods and Externalities: The case of roads” (1983) Journal of Libertarian Studies, Vol VII, No 1.217G. Guillory, (2005). 218G. Guillory, (2005). 219For one year, as Smiers alternative propose.

upon it. Within such a pre-existing and fixed social environment, a key requirement of

creative works ending up immediately in the public domain seems to constitute rather

a coercive institution, than a voluntary one, at least for those creators who want to

exert their rights to property. Given that market failure requires defectiveness in

achieving certain goods through voluntary institutions and not coercive ones, it

becomes clear that market failure and furthermore state’s intervention cannot be

evoked and justified under the circumstances Smiers alternative evokes it.

What is more, even in case governmental intervention is needed, still there are

some preconditions that must be examined, such as the superiority of the coercive

institution in comparison to the superseded voluntary one and the competence with

which the state will intervene220. Absentee this knowledge, market failure should not

warrant government intervention. Besides the government cannot and does not

become competent in doing everything; the state is not “an institution of noble goals

and irresistible means” 221. There are constraints and the cost-performance calculation

that may affect governmental success towards a series of issues222.

But is then totally unjustified the need for the state’s intervention and the

implementation of a regulatory framework of temporary protected usufruct?

The answer is yes, but not only because the proposal seems to stand utterly at

odds with the idea of market failure and its true meaning, but moreover because the

institution of a temporary usufruct itself is not clear and thoroughly justified.

Smiers alternative wants to establish a new regulatory regime of temporary

protected usufruct by basically advocating that, unlike copyright, under the proposed

legal framework, no private property will emerge. Is really usufruct then a legal

institution inconsistent with private property rights? What kind of rights usufruct

recognises?

In principal, it is believed that the basic “characteristic of usufruct is that one

does not have the ownership of an item, but one is entitled to the usage of the fruits of

the item” 223. In Smiers alternative temporary usufruct is equated with a non-

proprietary regime, where ownership is shared among the public domain which in its

turn offers the entrepreneur the right to use the fruits of the item for a certain period of

time. However the truth is that there is a series of definitions attributed to private 220G. Guillory, (2005).221G, Stigler, The Citizen and the State, (Chicago: University of Chicago Press, 1975) 112pp.222Y, Miwa, State Competence and Economic Growth in Japan, (London: Routledge, 2004) 125pp.223 J.Smiers, (2005).

property that are derived from a variety of different social viewpoints some of which

recognise private property even under usufruct’s regime224. For instance, according to

the Libertarian Socialistic position, which generally accepts a modern theory of

property, a person must make constant use of the item or else he loses ownership

rights. This is the so called "possession property" or "usufruct property”. In this

usufruct system, “absentee ownership is illegitimate, and workers own the machines

they work with”225. Applying this theory to Smiers alternative means that once the

public domain (the owner) releases its proprietary right upon creative output, even if

this is meant to be for just a condensed period of one year time, automatically it loses

its ownership, which directly is allocated among the usufruct beneficiaries, in our case

the entrepreneurs. According to this theory, the entrepreneurs will retain their

proprietary rights upon the creative output rendering thus Smiers alternative

unsuccessful. Of course one could comment that the Libertarian Socialistic hypothesis

is not but just a theoretical position that lacks the possibility of pragmatic application.

Yet, this is not the case with the new proposal of temporary protected usufruct. Given

that, the term usufruct, as a legal institution, is better known in civil law societies,

than in those governed by common law, while it is probably completely unknown to

other societies in the world, how can we ensure usufruct’s homogeneity in terms of its

adaptation, application and interpretation within different jurisdictions? What if a

national jurisdiction adopts the theory of “usufruct property”, which in contrast to

Smiers alternative, equates usufruct with private property? In this last case the so-

called entrepreneurs will be legally permitted to even sell and exploit cultural

products as they see fit, irrespective of public domain’s consensus or not.

But even if we accept usufruct as a legal state that excludes private ownership,

still it cannot pursue the goals for which Smiers alternative evokes it. Given that the

holder of usufruct rights has only a usage right and is not aloud to sell or otherwise

transfer the property to another party, how a musician-entrepreneur, who wants to sell

his or her music, or a writer-entrepreneur, who wants to sell his or her books, would

generate money? Would they have to ask public domain’s permission?

224 The libertarian, the socialistic, the communistic and numerous others theories, which slightly or considerably differ in their interpretations, have offered theory a plethora of definitions for private property. See J. Waldron, “Property” (2004), Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/archives/fall2004/entries/property/ (Accessed 17/8/2006) & H, H. Hoppe, The Ethics and Economics of Private Property” (London: Edward Elgar, 2004).225See http://en.wikipedia.org/wiki/Property. (Accessed 16/8/2006).

Moreover, we need to critically investigate the period of one year for which

protective usufruct is provided. Can this temporary protection of only one year

improve the situation? Is it too short or too long for certain artistic disciplines?

A limited time of protection is undoubtedly quite different than seventy years

after the death of the author, which is the current term of protection defined under the

copyright system. However, there is a series of drawbacks that make this solution

undesirable and ineffective. First, a change of the term of protection from seventy to

one year will not erase the temporary monopoly hold upon the creative works,

meaning that, similarly to what happens under the copyright regime, after a while, a

bunch of powerful enterprises will be trying to bribe artists for their one year

commercial advantage so as to gain personal benefits from the exploitation of the

creative output. Under such an environment, the dominance of cultural conglomerates

and the concentration of the media will once again be encouraged226.

Second, with only one year “life” many of those works, which at the end

become a part of superior cultural tradition, will not have sufficient time to do so,

negating thus their contribution to the palette of following artists anyway. In addition,

a one year period allowance will amount to intense workload for the artists, who apart

form having to prove that they are the authors of their work, they will as well need to

create extremely efficient marketing tools, in order to be successful in the launching

of products that are already available227. Finally, given that the so called entrepreneur

will not be responsible for the state of the work at the time he must surrender his or

her usufruct rights, he can as a, rational, utility-maximising individual, attempt to

ruthlessly exploit the work probably for more than a year228.

Taking into consideration the aforementioned arguments, we realise that the

establishment of a legal regime of temporary usufruct will not change but just the

name of “copyright”. In particular, if usufruct can be considered a proprietary right

and the one year of protection it provides is deemed to be as much inefficient as the

current copyright protection that extends to seventy years after the death of the author,

then what is the reason for its implementation? Moreover how could this limited

period be adjusted to constantly changing technological developments?

226A. Wiesand (2004).227A. Wiesand (2004).228E, Grundtvig & R, Richter, Theory: The Contribution of the New Institutional Economics (USA: Michigan Press, 2005) 565pp.

Subsidies

Finally, Smiers alternative advocates the implementation of a public funding system

in case the market lacks the flexibility to finance a certain type of artistic work, which

is deemed to be socially desirable and thus it needs to become available “for the sake

of cultural diversity or because the public is still developing a taste for certain forms

of expression”229. In this case, when public grants are involved, creative works should

enter the public domain instantly and not be given the option to obtain a temporary

protected usufruct. Of course the aforementioned exclusion of temporary protected

usufruct seems to stem rather from the incapability of this proposal to “provide

enough prospective on the ability to break even on certain artistic creations and

performances” 230, than from a need to sustain cultural diversity, as the model argues.

The idea to replace the present scheme of rights and rewards in copyright with

a system of remunerations paid from public funds is not new. In 1960 Riksdag, the

Swedish Parliament, wanted to pass a bill that proposed to reject the copyright bill and

replace it with a grant of twenty million Kronors “for the support and promotion of

works of art and literature” 231. Later on, Harris mentioned that “in such a system (of

public grants) there would be no allocation of property right for copyrighted works

and that the system would recognise that an author should be rewarded for the social

wealth he creates by producing creative works” 232. Further elaboration of the

aforementioned suggestion speaks about a contractual relationship between the author

and the state, according to which the former engages himself or herself to sell the

intellectual property right in exchange for adequate reward and compensation233.

Similarly to the aforementioned proposals, Smiers alternative seeks to launch a

subsidies system, which will engender incentives to innovate without creating

monopolies like copyright does. However, unlike other public funds schemes,

according to which an author loses the property right in the work, while he or she

229J.Smiers et al, (2005). 230J.Smiers et al, (2005). 231S. L. Ljungman, “The Function of Copyright in the Present Day Society” (1976) 88 Revue Internationale du Droit d’Auteur, 51-55.232JW. Harris, Property and Justice (Oxford: Oxford University Press, 1996), quoted in L.Zemer, “Rethinking Copyright Alternatives” (2005) International Journal of Law and Information Technology, Vol 14, No 1, 138pp.233DG. Lichtman, “Pricing Prozac: Why the Government Should Subsidize the Purchase of Patented Pharmaceuticals” (1997) 11 Harvard Journal of Law & Technology 123-125.

exclusively retains the moral rights in it, Smiers alternative advocates a model “which

rejects moral rights and gives the power to the public to formulate an opinion…and

make judgements on the creative adaptation of a work” 234. Moreover, unlike other

similar proposals, Smiers alternative fails to make clear, whether, in case

governmental subsidies are given, the exclusion of proprietary rights advocated,

involves as well the exclusion of the right to the commercial exploitation of the work.

Recently in a research over reward systems some scholars advocated separating the

monopoly power in the intellectual property right from its viable commercial value

and giving creators the choice between the intellectual property right and rewards235.

Although the replacement of copyrights with public grants has been occasionally

endorsed, a series of ramifications stemming from this replacement has proved the

suggestion ill-considered.

To begin with, a regulatory scheme, where governments subsidise creativity,

encourages the concept of art as a mere commodity. In particular, in order to purchase

the intangible good for the free use of society as a whole, governments will be obliged

to adjust creative works into their annual budgets and in case a taxation system is

followed, into their general tax revenue236. Given that within the contemporary

modern society, art is not much appreciated, because the role of the artist is not clear

anymore and there is not any bureaucratically recognised competence conferred on

him or her, a further commodification of art would be very dangerous and would not

at all improve the situation copyright has already created. Moreover under

circumstances, where art is transformed to a mere commodity, artists may start

thinking the way the French “Intermittents” do, that is, like freelance entrepreneurs.

Intermittents are freelance performance artists and technicians, for whom the French

government provides a social safety net, which amounts to unemployment

compensation. “For working 507 hours over a one-year period, the intermittents

qualify for a year of unemployment compensation” 237. But do we really want to

234A. Wiesand & D. Cliché, “Survey of Artists’ Rights”, in the third session of the European Cultural Parliament (Genova, Italy, 2004).235S. Shavell & T van Ypersele, “Rewards Versus Intellectual Property Rights” (2001) 22 Journal of Law and Economics 525, quoted in L.Zemer, “Rethinking Copyright Alternatives” (2005) International Journal of Law and Information Technology, Vol 14, No 1, 138pp.236BG. Damstedt, “Limiting Locke: A Natural Law Justification for the Fair Use Doctrine” (2003) 112 Yale Law Journal 1179, 1213pp. 237P. Ben-Itzak “Intermittent Freelance Artists Strike Throughout France; Paris Opera Ballet, Nadj cancel shows; Three Paris Theatres occupied” (2006) The Dance Insider, http://www.danceinsider.com/f2006/f0308_2.html.

generalise the French institution and create similar legal regimes all over the world?

Do we really need art to be sold out to governmental schemes of unemployment

compensations?

Moreover a grant-giving scheme, unlike copyright that prevents direct state

involvement, may generalise public gatekeeping, a policy that involves a big moral

hazard, “a danger of mutual back-scratching by a self-serving professional elite

blocking outside criticism” 238.

Finally, from a microeconomic point of view, it has been argued that the

implementation of a subsidies alternative can be a highly costly procedure, a financial

hurdle that can block the transition to generalised public schemes.239. Although the

DRM-based copyright structure requires fairly high compliance costs, meaning the

costs involved in the setting up and maintaining of the technological system that is

used to enforce copyright240, government regulation requires significant technological

investment as well. Public subsidies’ schemes are basically founded upon a system of

taxation of the use of artistic material. “The tax should be related more or less to the

intensity of the use of the artistic material by a specific enterprise, and the economic

importance it has for such an enterprise” 241. In order to fairly distribute the tax

revenue, governments are dependent upon diligent ways to monitor consumption and

upon sophisticated compensation schemes. Such a system can be significantly more

complex in tracking for instance the consumption of music, especially nowadays that

is widely disseminated through the Internet, than the TV ratings that are used to

estimate the value of talk shows. Given the heterogeneity of art, more representative

data will be required and that means higher compliance costs involved in the setting

up and maintaining of technological systems that the state will need to employ, in

order to enforce a new business model of public subsidies242. What is more, a public

subsidies’ structure will mean increased bureaucratic costs to secure the setting up of

238S. Kagan, “Alternatives to Copyright” (MA CE & CE in Seminar Cultural Industries, March-April 2004)10pp.239T. Regner & JA. Barria & JV. Pitt & B. Neville, “Emerging Business Models in Digital Media”(2004), Intelligent Systems & Networks Group, Department of Electrical and Electronic Engineering, Imperial College London. Further see P. Eckersley, “Virtual Markets for Virtual Goods: An Alternative Conception of Digital Copyright (2003) Intellectual Property Research Institute of Australia, University of Melbourne, working paper 02/03 (version 2). 240“Retail Sales Tax Compliance Costs: A National Estimate” (2006), National Economic Consulting.241J. Smiers, Arts under Pressure: Promoting Cultural Diversity in the Age of Globalisation (London: Zed Books, 2003).242T. Regner & JA. Barria & JV. Pitt & B. Neville, “Emerging Business Models in Digital Media”(2004), Intelligent Systems & Networks Group, Department of Electrical and Electronic Engineering, Imperial College London.

an efficient, reasonable and tamper-proof taxation and distribution system. After

having considered all this information, do we still believe that public benefits offered

by governmental grants could outweigh the state’s costs?

There are many ways to reconsider copyright. However, a fundamental reform

of the whole copyright system would not be a wise idea. Like some scholars have

claimed “abolishing the system altogether is a no-solution to a well-defined

problem”243. Indeed, only the huge societal distress those radical substitutes would

provoke to an already legally fixed reality of copyrights, it is enough reason to make it

difficult for them to reach fruition. There are alternative and more feasible solutions,

such as the one CC suggests that have already reached legal maturity, without

requiring large changes and substantial modifications to the law. However, while

revolutions, such as the one Smiers alternative introduces, are more probable to

succeed in a theoretical level of academic discourse, are still very important, in that

they work, as a disenchantment for those societies, which systematically refuse to

accept law’s imperfection.

243L.Zemer, “Rethinking Copyright Alternatives” (2005) International Journal of Law and Information Technology, Vol 14, No 1,144pp.

Conclusion

Advances in communication technology, especially with the advent of the Internet,

have proved copyright law increasingly unenforceable and its default structure, a

disabling factor. A “permissions society” of “do’s and don’ts” that says, you may do

nothing with my work, without previously obtaining my consent and forces artists

wishing to make secondary works to contact me, so as to obtain a written permission,

has unfortunately become the norm. Questions are frequently raised about, whether or

not it is beneficial to our society to be deprived of our creative culture, to such an

extent, as is the situation nowadays. At the same time, critiques challenge the validity

of copyright law itself and the ideology upon which is founded, mainly with respect to

the proprietary regime the law establishes. Many lawyers and especially scholars in

the academic community are really concerned with the monopolies of those, who hold

copyright upon creative output and have suggested alternatives. Besides, “the original

copyright law was written for a world where lawyers met with lawyers to decide how

others could remix music. That rule does not make sense in a world where anybody

with a $1,500 computer can produce content that rivals the best of what MTV can

do”244. Therefore, why should we glue onto copyright, when we could come up with

something else that would work better for digital media?244R. McOrmond, “Creative Commons; Copyright Alternatives” (2004).

There are many ways to overcome the present injustice in copyright and

restore the balance required between the protection provided for authors and the

interest of the public in general. What should primarily be done is to increase public

access and restrict authors’ property rights to some minor extent. Proposals to abolish

the ineffective copyright system speak about the need of a “paradigmatic shift”, an

absolute detachment from the individualistic concept of the author, while more

moderate solutions seek to optimise copyright and therefore offer more viable

solutions that do not require large changes. This paper has presented and assessed two

representative models of the aforementioned camps; CC’s licensing scheme and

Smiers alternative.

CC’s licensing scheme has been one of the most important, fast-growing

alternatives, which came as a moderate solution to optimise copyright and simplify

whilst encourage creativity. CC empowers creators of intellectual property goods,

while at the same time offers the public wide access to cultural output. This happens

through the supply of instant and customisable intellectual property licenses,

attachable to creative works, which are about to be released to the public domain. The

paper advocates CC’s licensing model and seeks to prove that the legal procedure

employed by CC, increases the public technical resources, adding thus to innovation

and cultural development. The outcome is a new sparkle in the world of the Internet

and the technology sector in general.

At the other end of the scale, Smiers alternative resides in a camp, which

suggests that the world needs to move entirely towards new models for funding

creative work. Based upon a sheer perception of commodified creativity that wants

creators to be merely entrepreneurs, who act always within a commercial sphere,

Smiers alternative goes far beyond the intended limit and denies the idea of the

individual author altogether. Although the individualistic concept of the author has

been characterised by some as the “ingrained cornerstone of capitalism” 245, from

which we need urgently to move away, it still remains the lead norm in our society, a

norm that cannot be suddenly changed by extremist proposals, which randomly and

not always comprehensively speak about market, new legal structures and subsidies.

Given that legislators are no longer the chief regulators of public policy, but

are rather puppets in the hands of strong lobby groups, whose welfare usually prevail

over those of the general public and who are the responsible ones for the changes 245S. Kagan, (2004, 12p).

copyright law has recently undergone, it becomes obvious that there is not any space

left for radical changes. The desirable “paradigmatic shift”, mentioned above, rather

than a total withdrawal from the concept of the individual author, should mean a shift

in copyright that would balance itself against certain human rights, such as the

freedom of expression246. This is exactly what CC seeks to create by encouraging both

respect to the individual creator and the wider public interest. “Viewing intellectual

property through the eyes of human rights advocates will encourage consideration of

the ways in which the property mechanism might be reshaped to include interests and

needs that it currently does not” 247. CC’s licensing structure promises a change in the

rationalisation of individuals and the motivation of artists and inaugurates a new

configuration of sharing, openness and collaboration.

246L.Zemer, “Rethinking Copyright Alternatives” (2005) International Journal of Law and Information Technology, Vol 14, No 1,140-141.247P. Drahos, “Intellectual Property and Human Rights” (1999) 3 Intellectual Property Quarterly 349-370pp.

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“The Quiet Iconoclast: With KaZaA, Niklas Zennstrom undermined the music industry. Now he has telecoms firms in his sights” The Economist (2004), http://www.economist.com/people/PrinterFriendly.cfm?Story_ID=2876993&CFID=31537797&CFTOKEN=3999b72-17af8fe9-c612-4e0e-83e0-0ffaab264b26. (Accessed 15/8/2006).

The Arcane Model, “Do We Need Copyrights?” http://pigeonhed.livejournal.com/2005/10/18/.

T. Regner & JA. Barria & JV. Pitt & B. Neville, “Emerging Business Models in Digital Media”(2004), Intelligent Systems & Networks Group, Department of Electrical and Electronic Engineering, Imperial College London.

W. Wallys Conhaim, “Copyright Revision” (July/August 2002) Link-Up.

W, W. Conhaim, “Creative Commons Nurtures the Public Domain” Information Today (2002), www.infotoday.com/newsbreaks/nb020603-2.htm.

W. Block, “Public Goods and Externalities: The case of roads” (1983) Journal of Libertarian Studies, Vol VII, No 1.

Books

A, Story, Intellectual Property Law Cases and Material: Introduction to Intellectual Property & Copyright Law (Kent Law School, August 2005).

A .Jones & B. Sufrin, EC Competition Law (US: Oxford University Press, second ed, 2004).

E, Grundtvig & R, Richter, Theory: The Contribution of the New Institutional Economics (USA: Michigan Press, 2005).

F. Macmillan, “Copyright and Corporate Power”, in ed Towse, Copyright in the Cultural Industries (UK: Edward Elgar, 2002).

G. Murdock, “Redrawing the map of the communication industries: concentration and ownership in the era of privatisation”, 1990, reprinted in eds. P. Golding & G. Murdock, The political economy of the media (London: Edward Elgar, 1997).

G, Stigler, The Citizen and the State, (Chicago: University of Chicago Press, 1975).

Jennifer Davis, Intellectual property law, (Oxford: University Press, 2005, second edition).

J, Litman., Digital Copyright, (Amherst New York: Prometheus Books, 2001).

J.Alderman, Sonic Boom: Napster, P2P and the Battle of the Future of Music (London: Fourth Estate, 2001).

J, Boyle. , Shamans, Software, and Spleens: Law and the Construction of the Information Society (London: Harvard University Press, 1996).

J.Chrysovitsiotis & J.Stavracopoulos , Dictionary of commercial-banking and financial terms (Athens: Papazisi Press, 2001).

J. Smiers, Arts under Pressure: Promoting Cultural Diversity in the Age of Globalisation (London: Zed Books, 2003).

J, Domat, The Civil law in Its Natural Order, (Boston: Charles C. Little and James Brown, 1850).

JW. Harris, Property and Justice (Oxford: Oxford University Press, 1996).

L.Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: The Penguin Press, 2004). (Quoted in the paper as L. Lessig (2004b)).

L.Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New. York: Vintage, 2002).

R. Stallman, Open Sources: Voices from the Open Source Revolution (USA: O’Reilly & Associates, 1999).

R, Towse. , Copyright and Cultural Policy for the Creative Industries (2003), in ed. O, Granstrand Economics, Law and Intellectual Property (Netherlands: Kluwer Academic Publishers, 2003).

R. Towse. , Creativity, Incentive and Reward: an Economic Analysis of Copyright and Culture in the Information Age (UK and Northamptom: Edward Elgar Publishing, 2001).

Samuels, Edward. The Illustrated Story of Copyright (New York: Thomas Dunne Books, St. Martin's Press, 2000).

S, Vaidhyanathan. , Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York and London: New York University Press, 2003).

Y, Miwa, State Competence and Economic Growth in Japan, (London: Routledge, 2004).

Cases

Eldred v Aschroft 537 US. 186 (2003).

Greene v Broadcasting Corpn of New Zealand [1989] RPC 469.

Hollinrake v Truswell (1894) 3 Ch 420, 63 LJ Ch 719, 7 R 568, 38 Sol Jo 706, 71 LT 419, 10 TLR 633, CA.

.Kahle v. Ashcroft, 2004 U.S. Dist. Lexis 24090 (N.D. Cal. Nov 19, 2004), on appeal sub nom. Kahle v. Gonzales (2005).

ProCD Inc v Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996).

Websites

Berne Convention: http://www.wipo.int/treaties/en/ip/berne/index.html .

Bambooweb: http://www.bambooweb.com/articles/i/d/Idea-expression_divide.html .

CreativeCommons:http://www.creativecommons.org/,http://creativecommons.org/learn/aboutus, http://creativecommons.org/about/licenses/meet-the-licenses. http://creativecommons.org/licenses/publicdomain. http://creativecommons.org/licenses/devnations.http://creativecommons.org/licenses/sampling. http://creativecommons/licenses/founderscopyright. http://creativecommons.org/licenses/music.http://creativecommons.org/faq. http://creativecommons.org/about/legal.

Electronic Frontier Foundation’s Open Audio License: www.eff.org/IP/Oen_licenses/archive.php.

GPL: www.fsf.org/licensing/licenses/gpl.html.

Intellectual Property Protection Treaties: http://www.wipo.int/en/ip/index.html .

MIT : http://ocw.mit.edu/index.html.

Nettime: www.nettime.org.

Property.gov.uk: http://www.intellectualproperty.gov.uk/std/resources/copyright/history.htm.

Public Library of Science: www.publiclibraryofscience.org.

Reticulum Rex: http://creativecommons.org/learnmore.

The Copy-South Dossier: http://www.copysouth.org .

WIPO: http://www.wipo.int.

Wikipedia: http://en.wikipedia.org/wiki/Free_software_movement . http://en.wikipedia.org/wiki/Commons .

Interviews

Lawrence Lessig on Creative Commons and the Remix Culture, Talking with Talis, An interview posted by Paul Miller, January 2006 http://talk.talis.com/archives/2006/01/lawrence_lessig.html. (Accessed: 5/6/2006).

P.Jaszi, “Is This the End of Copyright As We Know It?”(Talk given at the Nordinfo Conference, Oct 1997, in Stocholm, Sweden). The text is available at webserver.law.yale.edu/censor/jaszi.htm.

Steven M. Buechler, Women’s movements in the United States: Woman Suffrage, Equal Rights, and Beyond 110-112 (1990).

T. B. Macaulay, “Duration of Copyright” to the House of Commons, 1841.

The Basement Interviews, Free Culture, Laurence Lessig, professor of law at Stanford Law School, and leader of the Free Culture Movement, speaks to Richard Poynder, 7 th

April 2006. http://dialspace.dial.pipex.com/town/parade/df04/Lawrence_Lessig_Interview.pdf (Accessed 12/6/2006).

The Basement Interviews, “Open and Shut?” Richard Stallman speaks to Richard Poynder, 21st March 2006. http://poynder.blogspot.com/2006/03/interview-with-richard-stallman.html (Accessed 12/6/2006).