Module 6: Creative Approaches and Alternatives

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Key.png Learning objective

Traditional rights management often involves an exclusive assignment of all of the rights associated with a copyright from the author to a publisher. The publisher then makes copies and distributes the work to the public for a fee.

By contrast, free, libre and open access models disseminate works at no cost to the user. This module describes these alternative approaches, focusing on Creative Commons licensing and Open Access policy for scientific publications.

Casestudy.pngCase study

Angela writes Nadia the following email: “A professor at our university is the author of one of the articles I want to include in the course pack. However, when I contacted him to request his permission, he answered that he had already transferred all his rights to a publisher and thus wasn’t able to allow me to copy his work. How can it be possible that someone can’t even authorize use of her own work? What could be done to avoid this situation in the future?”

How should Nadia respond?

Lesson.png Lesson

Introduction: Physical and Digital Commons

Physical objects are often scarce and rivalrous. This means that there are a limited number and using one decreases the total amount that can be consumed. For example, an apple can be eaten by only one person, and when it is eaten fewer apples are available to be consumed by other people.

By contrast, the intellectual products governed by copyright law typically are nonrivalrous. A novel, for example, may be read and enjoyed by an unlimited number of people.

Digital technology has sharply reduced the cost of making copies of embodiments of intellectual products and thus has highlighted the nonrivalrous character of those products. If the novel is in an electronic format, an unlimited number of copies of it can be made and distributed very cheaply.

The wide distribution of intellectual products is socially beneficial. If that widespread distribution can be accomplished very inexpensively, why doesn't the law permit it? As we saw in Module 1, the primary answer is that prohibitions on copying are necessary to preserve incentives for novelists to write novels in the first instance.

In a growing number of contexts, reformers are challenging that answer. Authors of some works -- or some kinds of works -- may not need all of the rights that copyright law gives them in order to remain motivated to produce creative works. In such settings, copyright law may do more harm than good. To deal with situations of this sort, the reformers have developed various systems to facilitate more widespread use of creative works than the copyright system contemplates. This module describes those systems.

Free Software Licenses

Most commercial software programs are distributed under restrictive terms of use. Moreover, their source code - the code that makes the program run - is closed. As a result, developers cannot study the code to understand how it works, to fix bugs, or to customize it to their needs.

A radically different approach to software was first developed by Richard Stallman, when he was a researcher at MIT. Stallman became angry when he could not modify the software for a printer in his office that was not working properly. Provoked by this and other experiences, Stallman created the GNU-GPL, which stands for "GNU is not Unix" General Public License. The GNU-GPL allows users to run, copy, distribute, study, change, and improve the software to which it is applied. More specifically, the GNU-GPL grants users four kinds of freedoms:

  • The freedom to run the program for any purpose (freedom 0).
  • The freedom to study how the program works, and to adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
  • The freedom to redistribute copies so you can help your neighbor (freedom 2).
  • The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this, and modifications must be shared with the same degree of freedom.

Adoption of this approach does not mean that the price of the product must equal zero. Stallman intended the term “free software” to connote “free speech,” not “free beer.” (Other commentators distinguish these concepts by using the French libre (meaning freedom) vs. gratis (meaning no cost).) Nevertheless, free software is commonly "free" in both senses -- in other words, both libre AND gratis.

There are many incentives that drive the creation of free software. A developer might find it entertaining to do so. She might be driven by a desire to contribute to the public domain. She might want to build her reputation as a programmer. She might distribute the software for free but charge users for help in customizing it to their needs. Economists continue to discuss whether incentives of these various sorts are sufficient to sustain a viable business. Meanwhile, businesses relying on this approach are flourishing.

Creative Commons

Introduction

Creative Commons is a non-profit organization created in 2001 by a group of scholars and activists. It was founded and led for a long time by renowned cyberlaw scholar Lawrence Lessig.

Creative Commons provides authors convenient ways to authorize specific uses of their works, while retaining control over other uses. In other words, it allows them easily to create their own licenses, minimize the orphan works problem, and contribute to culture and free expression.

The license options

Creative Commons offers a set of six licenses from which authors and artists can choose online.

The CC licenses are combinations of one, two or three of the following four elements:

  • Attribution (BY): You let others use your work but only if they give credit the way you request. Attribution is required for all Creative Commons licenses.
  • Non-Commercial (NC): You let others use your work but for noncommercial purposes only. This does not mean that works cannot be used for commercial purposes, but that a separate license must be obtained by a user who wishes to use the work commerciallys.
  • Non Derivative (ND): You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. The right to make adaptations can be licensed under a separate agreement.
  • Share Alike (SA): You allow others to make derivatives from your original work but they are permitted to distribute derivative works only under the same terms as the license that governs your work, or a license that is compatible with those terms. SA is used to prevent people from taking something from the commons and then locking it up by using a more restrictive license.

These four elements can be combined into any one of the following six licenses that authors may attach to their works:

  • Attribution (BY). This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most open license and allows others the greatest creative freedom in using your work.
  • Attribution Share Alike (BY SA). This license lets 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. (This license is often compared to the GNU-GPL, which, as we saw, underlies most open source software.) All new works based on yours will carry the same license, so any derivatives will also allow commercial use.
  • Attribution No Derivatives (BY ND). This license allows for reproduction and redistribution of the work, for both commercial and non-commercial purposes, as long as it is passed along unchanged and in whole, with credit to you.
  • Attribution Non-Commercial (BY NC). This license lets others remix, tweak, and build upon your work for non-commercial purposes, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
  • Attribution Non-Commercial Share Alike (BY NC SA). This license lets others remix, tweak, and build upon your work for non-commercial purposes, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the BY-NC-ND license, but they can also translate, make remixes, and produce new works based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.
  • Attribution Non-Commercial No Derivatives (BY NC ND). This is the most restrictive of the six main licenses, allowing redistribution with attribution only for noncommercial purposes, and prohibiting derivative works. This license is sometimes called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

The Creative Commons website provides a simple quiz asking creators what freedoms they'd like to allow with their work. It then gives the creator a choice of appropriate licenses from which to choose. The quiz also allows the author to specify which country's laws will govern the license. Currently, the Creative Commons license has been translated or "ported" to the laws of 52 countries, and many more countries are currently under development.

Once a creator has selected a license, she attaches this license to copies of her work, thus alerting users to what they can and cannot do. If the work is (or is offered through) a website, the author can do this by adding to the site a piece of HTML code that generates a button with the Creative Commons logo containing a link to the license at issue.

Creative Commons Licenses Formats

Each of the CC licenses is available in three formats for online use:

  • The machine-readable, or digital code, which is embedded in the logo and informs other computers of the license.
  • The human readable code, or common deed (a summary explaining the main rights and freedoms, with icons corresponding to the elements which have been selected), available from the link embedded in the logo.
  • The legal code (a license of several pages written in legal language, detailing the clauses, which are represented by the icons), available from a link at the end of the human readable code.

Creative Commons licenses can be used for works made and distributed offline as well. For instance, a work created in the physical world might have a physical license attached that reads: "This work is licensed under the Creative Commons BY-SA License. To view a copy of this license, visit the Creative Commons website." Unfortunately, offline works cannot be included in the Creative Commons search engine that catalogs freely available works on the website.

There is an extended explanation of how to attach Creative Commons licenses to works on the Creative Commons website.

Creative Commons Licenses Main Clauses

All Creative Commons licenses authorize the public at least to copy, perform, and distribute the work for free, provided that the original author is properly attributed and the use is noncommercial. The 6 different licenses specify whether a work may be used for a commercial purpose, whether it may be adapted or transformed, and whether it must be incorporated into a work with the same open rights.

All Creative Commons licenses include the Attribution clause.

The license terms, “Non Derivative” and “Share Alike,” are not compatible and cannot be found in the same license. This is because it doesn't make any sense to tell people they should incorporate your work and share it alike while also telling them they may not make derivative copies of it.

All of the licenses are non-exclusive. In other words, authors are free to enter into other agreements with specific users. For example, it is possible for copyright holders who have issued CC licenses to enter into fee-bearing licenses for rights to engage in activities not covered by the CC license in question. In this way a songwriter might release her music for free on the Internet and still charge a company for using it in a commercial.

Creative Commons licenses do not address an authors moral rights in any country except Canada. Accordingly, a work that is governed by even the most liberal Creative Commons license may still be subject to certain restrictions on use, in accordance with your country's provisions on moral rights.

Creative Commons, like the copyright regime as a whole, has no registration system; it merely provides information for authors who wish to license their works on nontraditional terms.

Other Creative Commons Projects

Creative Commons International

The Creative Commons International (CCi) team coordinates the process of translating the Creative Commons licenses into other languages and adapting them to other legal systems. This is a complex and challenging process. CCi also provides local teams to work in their countries with user communities and governments in order to increase understanding and use of CC licenses. The local teams also work closely with CC staff to improve the license clauses and material.

Educational and Science Commons

Two other divisions of Creative Commons also engage in specialized work: ccLearn for open educational resources and Science Commons for open access to science.

New Creative Commons Protocols

In addition to the licenses, two protocols have been recently developed: CC+ and CC0.

CC+ (CC “Plus”) is not a license, but technologies for offering users rights beyond the CC license grant -- for instance commercial rights, or additional warranties.

CC0 (CC “Zero”) is a universal waiver of copyright, neighboring and related rights, and sui generis rights. CC0 thus enables authors to place their works in the public domain. CC0 is sometimes known as the “no rights reserved” option. Under the laws of certain countries, however, it is not possible for an author to waive moral rights, nor can an author waive the rights that others may have relating to the use of a work (for example, the publicity rights that the subject of a photograph may have).

A possible implementation model for digital libraries would be to propose a combination of:

  • CC licenses for works created by librarians: abstracts, comments, photographs, maps, other copyrightable elements of the editorial structure;
  • CC licenses for works created by patrons: comments, abstracts, critics, blog posts;
  • CC0 licenses for databases of public domain works to which the libraries have added potentially copyrightable material.

Implications for Authors and for Users

Authors must consider various questions before deciding to apply Creative Commons licenses to their creations.

The licenses are based on copyright, and are thus applicable only to copyrightable works.

Authors also should be sure that they have the authority to issue the licenses. They may be obliged to check first with co-authors, authors of pre-existing works, or employers.

In many countries, collecting societies require their members to assign all their rights in present and future works to the societies. Thus, members cannot use a Creative Commons licenses, even for some of their works or some of their rights.

Many authors do not understand why both systems are not compatible, especially in the music industry. They would like to license their non-commercial rights for free under a Creative Commons license, and assign the management of their commercial rights to a collecting society. This model is possible for some collecting societies in some countries, such as the United States, the Netherlands or Denmark. But other collecting societies do not use the same legal categories as Creative Commons. For instance, they may not recognize the distinction between commercial and non-commercial uses. In those countries, authors are currently forced to choose one system or the other.

Creative Commons staff and international affiliates have been working with collecting societies in hopes of resolving this incompatibility. Unfortunately, some collecting societies and other copyright stakeholders are skeptical of Creative Commons licenses and are thus reluctant to move forward. Their criticisms of the Creative Commons model include:

  • The Creative Commons system does not provide creators a way to collect money; creators thus must organize for themselves a way to charge for activities that fall outside the CC license terms.
  • Creative Commons does not track infringements and is not authorized to represent licensors in lawsuits or help them enforce the licenses.
  • Creative Commons licenses are non-revocable, and the license grant is perpetual. Authors who employ CC licenses thus cannot later change their minds. They can, of course, cease distributing the works or distribute them under different conditions, but this will not affect the rights associated with the copies that are already in circulation.
  • There is no central registry or authority to verify that licensors have all the rights they need to use a CC license.
  • Determining what does and does not constitute a commercial use is a difficult question, and answers may vary among individuals and user communities.
  • It is questionable whether jurisdiction-specific licenses, which have been adapted to national legal systems, are really compatible with each other. For instance, some versions of the CC licenses include moral rights or database rights; others do not.

The Open Access movement

The Open Access (OA) movement is interested in bringing the open and free culture of academia to the Internet. The movement was provoked by a rapid rise in the price of scientific journals, leading many libraries to cancel journal subscriptions. The movement claims that authors should be able to access freely their colleagues’ research for the benefit of science and the general public.

OA journals offer articles to the public online for free. They often use very open online licenses, such as the Creative Commons Attribution license or another, similar license. This is sometimes known as “Gold Open Access.” Because they forgo traditional sources of revenue, OA journals must devise alternative business models. Some charge authors for publication of their work. Others rely entirely the work of volunteers to produce the journal.

Some journals are not OA journals, but authorize the authors of the articles they publish to archive versions of their articles in institutional repositories set up by their universities. This is sometimes called “Green Open Access.” Some Green Open Access journals also allow authors to upload their work to free, discipline-specific public repositories, like the Social Science Research Network. Journal copyright policies regarding self-archiving are analyzed by the project Sherpa RoMEO . More than 50% of pay-journal policies allow their authors to archive their pre-print articles in open access repositories.

Some journals do not generally allow authors to host open-copies of their articles on their own websites. In these situations, authors may formally request that the publishing contract allow them to do so. Several addendum models are available. "SCAE", the Science Commons Scholars’ Copyright Addendum Engine generates one such form.

Funding institutions can facilitate or compel the use of one or more of these strategies – by encouraging or requiring grant recipients to make the fruits of their projects publicly available. Currently, the National Institutes of Health in the United States, the European Research Council, and the Wellcome Trust in the United Kingdom have some sort of requirement that grantees make their work publicly accessible.

Universities can also help. Harvard University has led the way on this issue. Starting in 2008, some schools within Harvard have required faculty members to provide the university with a non-exclusive, irrevocable, worldwide license to distribute their scholarly articles for non-commercial uses. However, a faculty member may override this default rule by obtaining a waiver for a specific article.

A Directory of Open Access Journals (DOAJ) can be found at http://www.doaj.org/


Casestudy.pngBack to the case study

Angela complains to Nadia that she cannot include in her course pack the article from a colleague because he transferred his rights to the publisher. Nadia informs Angela that some publishers have very strict policies, but that sometimes publishing contracts are in fact less restrictive than some authors may think. Together, they will search for the journal policy to see whether the article could be included.

Together, they will browse Sherpa RoMEO because it “provides a listing of publishers' copyright conditions as they relate to authors archiving their work on-line.”

Finally, Nadia will suggest to Angela that, together, they provide the colleague information concerning Creative Commons and other systems that have been developed recently that might enable the colleague in the future to ensure that access to his scholarship is more open.

Resource.png Additional resources

An extensive set of teaching materials on Free and Open Source Software can be found at the course website for The Internet: Issues at the Frontier.

Other valuable resources on free software include:

Joseph Feller et al., Perspectives on Free and Open Source Software (2007);

Josh Lerner and Jean Tirole, "The Simple Economics of Open Source" (2000);

Eben Moglen, Faculty Presentation on Open Source, September 11, 2008;

Christopher Kelty, Two Bits: The Cultural Significance of Free Software (2008;

Wendy Seltzer, Open Source as Open Law (Powerpoint Presentation);

Siobhan O'Mahoney, The Emergence of Governance in an Open Source Community (2007)

Question.png Assignment and discussion questions

Assignment.pngAssignment

Choose one of the following:

Question 1. Creative Commons currently supports the licensing of creative works in 52 countries. If your country is one of these, use search engines and other directories to locate some documents available under CC licenses that you could help promote and re-distribute.

Question 2. Determine if there are any OA journals published in your country. Make a list suitable for distribution to your patrons.

Question 3. Prepare slides or a one-page handout in your language that you could use to educate librarians and academics concerning the Creative Commons system and OA options. Publish your document online with the Creative Commons license of your choice and send the link to the group. If your library doesn’t have a website, you may use http://www.slideshare.net/.

Question 4. How would you design and implement an OA policy in your country?

Discussion.pngDiscussion Question(s)

Comment on strategies proposed by your colleagues in response to Round 1 question 4.

Contributors

This module was created by Melanie Dulong de Rosnay. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isball, Colin Maclay, Andrew Moshirnia, and Chris Peterson.

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