Carol Mohrbacher, St. Cloud State University
In 2001, the Creative Commons (CC) officially began offering a free set of author-controlled copyright licenses. These licenses were and are available at the Creative Commons online site. The Creative Commons originated at Stanford University, although it is now established in Massachusetts. Lawrence Lessig, one of CC’s founders, describes its purpose as “to build a reasonable [author’s italics] copyright on top of the extremes that now reign” (282). The “extremes” Lessig refers to resulted from the passage of the 1998 Digital Millennium Copyright Act, which added an additional 20 years to the term of copyright and tightened controls on works of digital production. Fair Use was no longer guaranteed under the newest copyright code, and the public commons was thus undermined.
CC licenses have spread worldwide, and by 2009, an estimated 130 million CC licenses had been issued (“About History”). One of the most vigorous examples of this growth comes out of Australia. The Australian Research Centre and Queensland University of Technology (QUT), under the direction of Professor Stuart Cunningham, began collecting case studies of institutions using CC licenses on the Creative Commons Case Studies Wiki. The book, Building an Australasian Commons, documents those case studies and is available in pdf format for download on the wiki. The work sorts case studies into seven areas: sound, democratic change, moving images, visual arts, governmental institutions, the written word, and education and research. Because my interest lies in the area of digital copyright and its effects on academic authorship I examine the area concerning education and research in determining the level of control the Creative Commons license exerts.
Layers for Analysis
Professor Yochai Benkler’s communication theory of layers provides an effective approach to analysis because it addresses the physical infrastructure, the logical and the content layers in communication. Examining the three layers will provide insight into the flexibility of CC license with regard to academic authorship. Benkler describes the layers in the following:
The physical layer refers to the material things used to connect human beings to each other. These include the computers, phones, handhelds, wires, wireless links, and the like. The content layer . . . . includes the actual utterances and the mechanisms, to the extent that they are based on human communication rather than mechanical processing for filtering, accreditation, and interpretation. The logical [or code] layer represents the algorithms, standards, ways of translating human meaning into something that machines can transmit. (392)
Take a presentation at a CCCC conference, for example. The physical layer would include the room in which that presentation takes place and the computer and screen on which information is projected that supports the presentation. The content layer is the presentation itself including the words, ideas, and images that communicate the ideas. The language spoken is the logical or code language, as is the binary system that is the language of the computer which projects the PowerPoint. Any one of the three layers may be controlled and may affect the other two layers. The following section uses the layered approach to examine three cases studies in the section, “Beyond the Classroom: Education and Research Case Studies,” in Building an Australasian Commons. Each selected case study uses a different version of Creative Commons license.
The first case concerns the licensing practice of Queensland University of Technology (QUT), specifically the Faculty of Law in Brisbane. QUT is the home of the ccClinic, the research arm of the Creative Commons in Australia. This organization acts as an information and research site for the campus community, as well as the Australian community at large. The Clinic also acts as a site that fosters “a more traditional research stream” (167). Two works produced by the facility are covered by different versions of the 2.5 Creative Commons license. The anthology titled, Open Content Licensing: Cultivating the Creative Commons, published online is covered by the CC Attribution-Noncommercial-No Derivative Works 2.5 Australian license. The CC Attribution 2.5 license protects the second work, the online report, Unlocking the Potential through Creative Commons: an Industry Engagement and Action Agenda.
For the online anthology, the CC Attribution, Noncommercial-No Derivative Works is restrictive at two layers. At the physical infrastructure layer, no restriction exists. Anyone who has a computer may access the online book. At the content level both commercial and non-commercial users have access to the content, but are restricted from altering the work in any way. For commercial users, content also may not be used for profit. Yochai Benkler explains that the logical or code layer “represents the algorithms, standards, ways of translating human meaning into something that machines can transmit, store or compute, and something that machines process into communications meaningful to human beings” (392). Therefore, one might also argue that that a derivation might include, for example, a translation into another computer language, with firewall or cut and paste prevention code added. The license restricts such derivation.
The online report is covered by the much less restrictive CC Attribution 2.5 license. This type of license allows both commercial and non-commercial users to use the works for profit or not, as long as the creator is credited. Users may also create derivations of the original work.
In other words, both the physical infrastructure and the logical layer are uncontrolled. However, the mandatory author attribution restricts the content area to a small degree.
IMERSD (Intermedia, Music, Education, and Research) is a project of the Conservatorium of Music at Griffith University in Brisbane, Australia. IMERSD is wide ranging, including, but not limited to film school and music partnerships, broadcasting projects, CD and DVD recording, and other interdisciplinary and industry collaborations. The creative products of IMERSD are licensed under the Attribution–NonCommercial-NonDerivatives 2.5 Australian Creative Commons License. This means that the creative work protected by this license can be copied, distributed and transmitted, as long as the work is not altered or transformed in any way and as long as the work is attributed to the author. In addition the work can only be used for non-commercial purposes.
The license provides little control at the physical infrastructure level. Because the works are limited to non-commercial purposes, some venues, like a neighborhood movie theater for example, are prevented from using the works for profit. At the content level, manipulation of the work is prohibited, so some control is also exercised. For example, creating a mash-up with bits of licensed IMERSD music or film, is not allowed. However, use of the whole and unmanipulated work is allowed, as long as authorship is attributed. At the logical layer, again the user may reproduce the code, as long as it is not changed, added to or manipulated. The license overall opens up access for free academic authorship, but the work cannot be altered in any way.
Otago Polytechnic’s CC licensing exerts even less control over the use of its creative products than IMERSD. Otago provides technical and vocational training to residents of New Zealand. Their goal in choosing a New Zealand Creative Commons 3.0 license was “to ensure maximum amount of freedom and flexibility to itself and to people and organisations sampling its content” (Cobcroft 177). Unlike IMERSD, Otago allows commercial use of creative products. Also, unlike other universities’ work for hire policies, Otago’s policy encourages faculty to own and license their original educational works. A New Zealand 3.0 CC license also allows the users to adapt or remix the work for their own use. The only rule is that the work be attributed to the original creator. This license is identical in its restrictions to the Australian Attribution 2.5 license.
This license provides no control at the physical infrastructure level. Users are welcome to profit from the borrowed work. At the content level, the work may be altered in any way, provided that the author is credited. At the logical or code level, no restrictions exist. All software is open and its code also maybe be altered for use, provided the creator is attributed.
Volume 1 of Building an Australasian Commons: Creative Commons Case Studies provides thumbnail sketches of licensing across professions and disciplines. Each case study provides an overview of each institution’s creative products and the institution’s motivation for choosing Creative Commons copyright protection. The Creative Commons wiki, from which the cases are taken, is a necessary companion to the volume because it supplies license descriptions and a Creative Commons history that enriches the reader’s understanding of the Creative Commons movement. The book, edited by Rachel Cobcroft provides useful examples to any creator who wants a less restrictive and more flexible option to traditional copyright protection.
In 2001, the same year that the Creative Commons was born, Lawrence Lessig’s book, The Future of Ideas: the Fate of the Commons in a Connected World, was published. In the book, Lessig made a strong case for copyright reform because of what he saw as a shrinking free public commons and increasingly regulated digital technology. He warned that “We move through this moment of an architecture of innovation to, once again, embrace an architecture of control—without noticing, without resistance, without so much as a question” (268). Thanks to Lawrence Lessig, Yochai Benkler, Australia’s Brian Fitzgerald and others, we now notice, resist, and question traditional controls and this books illustrates that we have other options.
“About History.” Creative Commons. Wiki. 15 Feb. 2010. Web.
Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven: Yale UP, 2006. Print.
Cobcroft, Rachel, ed. Building an Australasian Commons: Creative Commons Case Studies. Vol. 1. 5 Jan. 2010. Web.
Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin, 2004. Print.
—. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001. Print.