Digital Revolution, Intellectual Property and Creative Commons Licenses

A more flexible copyright system must accompany the digital revolution and the democratization of cultural and industrial tools of production.  To understand the challenges facing content creators, it is necessary to be attune to changes in the cultural sector and to decipher the new mechanisms of creativity and of dissemination of culture and knowledge that are inspired by the free culture movement.

The desire to overhaul the economic, legal, and cultural perceptions of creativity is not a novel idea.  Since the 1990s we are witnessing a genuine groundswell.  That time saw the birth of new alternative    musical trends that have since become mainstream in the music industry:  hip-hop music and electronic music.

These two musical trends are characterized, in particular, by the use of “samples” during the composition of original works. These “samples” are short excerpts of preexisting works, played in loops, on which are affixed beats programmed on drum machines or composed by the means of computer software (Logic Audio, Q base, Abbleton…)  Generally, the “samples” are used outside of their original context.

The issue of the legal nature of these samples arose:  did they fall under the short quotation’s exception to copyright law, acknowledged, in particular, by article 10 of the Bern Convention? Or were the samples clearly infringing on the author’s moral and economic rights?

This issue became crucial in light of two cases concerning two heavyweights of French hip-hop music, IAM and NTM. The first were sued for copyright infringement for their single “Le feu” (the Fire) whose tune was inspired by a melody sung in football stadiums, but which was in reality composed by a French performer who chose to assert his economic rights of authorship.  The second used a sample of Édith Piaf, “Non, je ne regrette rien,” (No, I do not regret anything) as the basis of a piece entitled “Assassin de la police” (Police murderer) which raises the issue of the moral right of the author or of his successors in title, who have the option to oppose any distortion to the original work.

It is in this context of cultural and technological upheaval, of confusion between “public domain” and  “creative output of humanity” that a new intellectual movement was born, “ the free culture movement,” which should be understood not in the sense of free service, but in the sense of free expression, free enterprise, or free will.

Lawrence Lessig, law professor at Harvard Law School and author of the book “Free Culture” is one of the precursors in this field, even if he merely considers himself a follower of Stallman and of his work “Free Software, Free Society.”  In 2001, professor Lessig founded an organization called “Creative Commons” whose goal has been to reconsider the cultural and technological model, especially in their modes of dissemination.  The basic premise is as follows: it is imperative to distinguish commercial culture whose first goal is to make a profit, from non-commercial culture.

Non-commercial culture must acquire modern legal mechanisms in order to enable the dissemination of culture and knowledge in a digital age.  Thus, Creative Commons drafted a set of six flexible standard copyright contracts.  These contracts are available for free on the internet in order to promote the dissemination of creative work mainly on the web. (Official link: http://fr.creativecommons.org/)

According to Creative Commons, “these contracts, simple of use, enable authors and holders of rights to grant non exclusive authorizations permitting certain uses to the general public, while affording the option to exclude any future commercial operations, the option to exclude any derivative works, or the option to control the degree of freedom (within the meaning of free software.)”  The object of the contracts is very broad since it encompasses the whole of intangible creations. The site Wikipedia uses it.

The six Creative Commons contracts fall under a broader movement of democratization and opening of creation running in tandem with the movements demanding the establishment of a global license in order to circumvent the issues of illegal downloading or of free software and to restore some measure of equality in the access to technological progress.

This project had a worldwide impact.  In France, for example, the Center of Studies and of Research in Administrative Sciences, a research laboratory under the umbrella of both the University of Pantheon-Assas Paris 2 and of the French National Center for Scientific Research (CNRS) is an institution affiliated to Creative Commons. On December 2, 2003, the first translation draft in French of the license version 1.0 was put online on the International Commons France web page.  Creative Commons  has also extended its roots in the Arabic-Persian Gulf since there is today a relay organization in Qatar. (http://www.creativecommons.qa/).

Let us briefly analyze how the set of Creative Commons licenses operates:  Each Creative Commons license is entirely self-governed.  For the whole set of licenses offered, it is expressly specified that Creative Commons is not a law firm and consequently does not provide legal advice, but merely offers licensors/creators a flexible mechanism of dissemination of their works.

Thus, the use of one of the proposed licenses does not create an attorney-client relationship between the licensor and Creative Commons.  Creative Commons offers these standard contracts only on an informational basis, and cannot be held liable in the event of a dispute between co-contracting parties.

The goal of these licenses is to enable the authors or copyright holders of creative works to grant the general public permission to use their work under more flexible terms.  The creative works remain protected under general copyright and intellectual property law, and any other applicable law. Therefore, any use of the works other than the ones expressly authorized under the terms of the license is prohibited.

To the extend that a Creative Commons license is considered a contract, the contract is formed when the author, or copyright holder grants the user some permissible uses of his or her creative work, in consideration of the acceptance by the user of the terms and conditions expressed in the license.

Therefore, the original creator or licensor controls the scope of the freedoms he or she wishes to grant the web users:  the creator can merely require attribution as a condition of using his or her creative work; the creator can prohibit any commercial uses of his or her work;  the creator can require ShareAlike–meaning any derivative work created using the licensed work must also be released under under the same licensing terms; or the creator can decide whether or not to allow any derivative works at all.

Creative Commons licenses are a true cultural and legal revolution.  Professor Lessig’s message was heard by millions of creators around the world.  SoundCloud, one of the main social networks dedicated to music is inspired from professor Lessig’s distinction between commercial and non-commercial culture, since the site allows musicians to distribute their music track under a Creative Commons license through a free download link, or through paid downloading.  We are witnessing a true revolution in the management of intellectual property rights.