Copyright and Her Limits Go to the Creative Commons

August 10, 2020

Copyright and Her Limits Go to the Creative Commons

Copyright and Her Limits Go to the Creative Commons

A Play in Two Parts

by Kathryn Kure

This work is licensed under Attribution 4.0 International (CC BY 4.0)

SCENE: A large, dark, and crumbling castle. On the staircase, a woman burdened by books, with a pen behind her ear, hesitates before a closed door. Behind it, she can hear the sounds of revelry, some glasses being chinked, muted laughter and quiet conversation. It is dark outside the room, as only a single, dim lantern has been lit. Shifting the weight of the texts onto her hip, she tries to find the door-knob with her one hand. Suddenly, the door opens and there stand the Fount of All Knowledge (otherwise known as FOAK):

FOAK: Ha! You must be the new Creative Commons STUDENT!

STUDENT: Oh. You startled me. Um. Yes! How on earth did you guess?

FOAK: You are standing at the Door of Knowledge, texts in hand, looking exceedingly confused, but how else do you begin? What is it that you are seeking? I am here to help.

STUDENT: Well, first of all I am needing to understand Copyright.

FOAK: Starting with the hard bit first I see. Do they never learn? But basics are basics I suppose. Well, let me introduce you to her.

SCENE: Standing in a corner, in an old faded dress that was all the rage over three hundred years ago is a lady with her long, grey hair piled up high on her head. She is softly singing to herself and drinking sporadically from a long glass full of pale champagne.

FOAK: Copyright, meet Kathryn.

COPYRIGHT: Oooh, another STUDENT! How delightful! Life can get exceedingly tedious when you are old. It’s dreadfully boring to live through yet another pandemic, and see humanity making the same old mistakes time and again. Tell me dear what do you want to know?

STUDENT: Do you have a purpose? And if so, what is it?

COPYRIGHT: Ah! The purpose question – that’s going back some time. I was born with a specific purpose in 1710, in England, but the purpose has possibly changed over time and may no longer be entirely relevant to this more modern world. To begin with, I was born to balance the needs of the public right to knowledge with those of private rights to commerce – in terms of the latter, I conferred rights upon the creator of a work. There are two aspects that are looked into, the one is that creators must be incentivised, so that’s the utilitarian approach, whereby copyright ensures that they continue to produce more works – they get something for something or: quid pro quo. The second is that creators have a deep affinity for their work and have a moral right over it. So, the first looks at it as a property – which can be given away, while the second is more of a moral right, which is generally considered inalienable.

That’s what they say I must say anyway – but truth to tell, like the clothes I have on, I’m beginning to feel more than a little bit dated. In the old days, it was quite simple: production of the work belonged to the creator, and reproduction was extremely hard, time-consuming, expensive, and required specialist technology. It was easy to credit the creator – very few people after all have any kind of education at all (Shakespeare’s father for instance was illiterate), and virtually no one could reproduce the work unless they had that very specific technology. Even Shakespeare’s works (which pre-date me by a bit) nearly didn’t make it into print. Imagine the incalculable loss that would have been to humanity!

However, at the time of my creation, I was only supposed to last for a very, very short period of time – initially only 14 years. But as technology has become increasingly available to everyone, and everyone can copy everything so easily, and produce and reproduce and distribute so easily to everyone all over the world, so too have my “powers” also expanded – without me having any say in it to tell you the truth. It was all the fault of those fancy lawyers who bill extortionate rates on an hourly basis to huge multinational corporations. When I was born, we did not even have the concept of a Nation State. Now, Amazon is everywhere! We are an interconnected world, and with that comes great change.

STUDENT: So, do you think that your purpose is no longer relevant?

COPYRIGHT: No, I believe more than ever that I am needed but I’m not sure if people recognise the difference between the moral right of the creator to be associated with their work, and the consequences of having that copyright extended even to those creations that are effectively “orphans”, for instance -

SCENE: STAGE LEFT: Into the room, from another door entirely runs an entire entourage of boys and girls dressed very shabbily in clothes full of holes. None of them look at all healthy or plump and they are universally pale; some of them are quite transparent even, you can see the flicker of the candles and other people behind them. None of them are very lively, they all seem tired, dispirited and frankly run-down. They are followed by a large, robust man in a tight-fitting suit of fustian, who keeps trying to keep order.

STUDENT: Who are they?

FOAK: They are the orphans and their would-be caretaker is the Orphan Bill. Bill, how are you?

ORPHAN BILL: Tired, old chap. Very tired. They keep arriving and there’s naught I can do to stop it. So hard to keep everyone clothed and fed when despite my best efforts, they just keep fading. I lose more every day, and though more pour in, they are not a replacement, not one of the new ones is ever at all like those I have lost. I keep looking to find another copy of the orphans who have died but it’s rarer and rarer these days -- - everything keeps aging and they keep making copyright limits even longer, which makes my work hard and harder. Everyone wants me to keep on keeping on, yet where’s the incentive? No-one else is tackling this job, and I haven’t yet been given responsibility for them; they could be taken away from me at any moment, you know. Not all of them, but one by one.

STUDENT: (In an aside to Narrator): What’s he talking about?

FOAK: The Orphan Bill has not yet been passed into law. It’s been created to account for such orphan works. The incentive is to enable the publication of these works provided that first, a reasonable search has been done for the creator, and secondly, the attribution notes that it is and orphan work and who the originator was – this means that in the event that the creator is found and wishes to exert copyright they still can. It is hoped that this specific form of limitation to Copyright Law will enable the resuscitation of works that are published but abandoned. For the original raison d’être of Copyright is to ensure that copyright law is a natural right, similar to the logic of property. Allied to this are personality rights, works are seen to belong to or closely aligned to that of the author or creator. That person (in the old days, it was typically an individual who held copyright, as opposed to corporation – and therein may allow the difference) was believed to have certain, inalienable rights to control how those works were reproduced. It was also believed that economically unless creators are awarded for their work there would be not enough incentive for them to be produced hence the copyright laws were created to grant monopoly – but a very time-limited monopoly to the author/creator. But what happens to those works that no longer have an author who is able and willing to exert copyright? Currently, copyright (the old “All Rights Reserved”) continues to operate by default.

STUDENT: But what about the orphans?

FOAK: Yes, look at them! The law of unintended consequences coming to tragic life.

SCENE: The orphans cluster around Copyright, calling her ‘mother’ and ‘grandmother’, but she wants nothing to do with them. Against their little hands and bodies pressed up against her she recoils and says:

COPYRIGHT: My dears! I am not your mother! Or your grandmother either! (Would that I was, things would not have come to this sorry pass).

ORPHANS: But we have your name all over us! We can’t get rid of it, no matter how much we try.

ORPHAN ANNIE: And we have tried, very hard indeed, but no matter what we do, it says: “Copyright. All Rights Reserved”. We have scrubbed at it, and we have even taken a knife to it, but it keeps coming back like an unwanted tattoo undertaken one long and drunken night - it’s there forever. We don’t want it anymore, but they say it’s impossible to separate the moral right of the creator from their work, so we were branded at birth, but since abandoned. But we don’t know how to find our creators or their heirs! We have long been left to our fate. Once, we were published, but now, we are seldom to be found and even then, only in the rarest of rare book shops or other venues of art. Why aren’t you our mother?

COPYRIGHT: Dear children, I am not your mother. I am but a status, conferred to your actual mother – and which she granted to you upon your birth. I cannot take it away, only your creator can do that.

ORPHANS: They cry softly and quietly. But then they look down and see a great big light.

SCENE: The orphans press themselves against the glass, looking down into a brightly lit courtyard. In it, all manners of creations are occurring and re-occurring. The creations are duplicating themselves, then halving themselves again, contorting themselves into different shapes, cutting and twisting, reshaping and then reduplicating the new shapes. In short, it’s a mad festival of mix-up culture, with a real carnival atmosphere. There is a strong smell of caramel in the air and there is juggling, and contortions and strongly scented cinnamon hot drinks being passed around. The rich scents waft up to the cold floor of the castle on which the orphans cluster.

ORPHANS: Uncle Bill! Uncle Bill! Why can’t we join them! PLEASE!!

BILL: My darlings, that’s the PUBLIC DOMAIN. Anything can happen there.

COPYRIGHT: I can’t even visit – COPYRIGHT simply does not exist in the PUBLIC DOMAIN. I tried it once and got quite the fright as the part of me that was supposed to be in the courtyard simply disappeared in front of my very eyes. Gave me quite the turn, it did. Now I am content just to sip my champagne and wave at the crowds from above, like the Queen.

ORPHAN BILL: You see? You would have no protection at all! Why on earth would you want to go there?

ORPHANS: Well, for all the supposed protection we get here (and we do appreciate your care, but there are so many of us and only one of you), we are starving and dying and COLD. It’s not much fun being kept in a cage. Why can’t we be like them? We have no mother willing to own us. Copyright cannot claim us as she is not our Creator, but we cannot eradicate Copyright either. So, what if we disappear there? We are disappearing here as it is – at least that way it will be quick – if it happens at all. What must we do so that we can be given away, and in being given away – possibly live again? Why can’t we be like those people? Pointing -

SCENE: There is a wide and well-lit staircase going down to the courtyard and standing meekly in queue is a wide variety of people, short and tall, young, and old, speaking all manner of languages and dressed in all kinds of clothes. Every now and again, a young man runs up and down the queue, checking a piece of paper in their hands, and he often moves people around in terms of their order. On the back of his black T-shirt, printed in big white lettering is spelled: LIMIT EXPIRATION. As they watch, a fight breaks out.

GERMAN WORK: This is not fair! I have been standing in this line for a long, long time – many, many years - and now this gentleman from Barbados takes precedence! This is not how things work! Lines are here for a reason. He is jumping the queue!

LIMIT: Sir, I am sorry, but Barbados recognises life plus fifty years while you as part of the EU have to wait another 20 years until you are free to join the PUBLIC DOMAIN.

BARBADOS: But why it is all the Applied Art keeps pushing through? Even those from Germany? Surely that is also not fair!

LIMIT: They only have twenty-five years of protection – performance is evaluated separately from printed works, art works, movies, and sculpture, among others.

GERMAN WORK: All these different rules! Why so many? This is very, very inefficient, I tell you!

LIMIT: Beats me, but it’s a real trouble keeping up with them all I must tell you. They have had to create a website with a map of the world (European Union, 2020; Wikipedia, 2020) on it so that I don’t make a mistake letting any of you stray into the PUBLIC DOMAIN illegally.

ORPHANS: Uncle Bill! Uncle Bill!

BILL: Yes?

ORPHANS: When do our limits expire?

BILL: I wish I knew. Some of you may even have authors still living. If so, they have a right to you. The clock only starts ticking once the creator is certified no longer living and then it’s either fifty or seventy years generally.

ORPHANS: But why are we copyrighted at all?

BILL: Sigh … because you are a tangible expression of your creator. You were fixed into a form at one stage. You are not unpublished – like her – though even she is copyrighted – but you still can exercise some exceptions she can’t -

SCENE: A young lady stands very shyly, like a wallflower, against a wall on the bottom floor, looking out of the closed window into the carnival courtyard. She clutches to her bosom a manuscript. She is looking at a young man, who goes from open window to open window, taking from various works now a bracelet or a watch, a necklace, or a shoe. He throws them into the crowd, who sing and shout with glee as they are thrown at them, then – once they are done, he gravely hands them back, still intact, to those from whom they were borrowed. As he approaches UNPUBLISHED, she shrinks back -

FAIR USE: May I borrow this manuscript?

COPYRIGHT ACT: Leave UNPUBLISHED alone! You know that borrowing from her will do great harm. It is not allowed! Verboten!

ORPHAN ANNIE: FAIR USE, can you borrow part of me?

SCENE: Defiantly, with a flick of his hair, FAIR USE takes a necklace from Orphan Annie and throws it into the crowd, where it is gleefully pounced upon and used. Little Orphan Annie grows visibly less transparent and happier. All the Orphans cluster at the window, beseeching FAIR USE to come and take something from them.

FAIR USE: That’s how it ought to be done!

STUDENT: Why is it that FAIR USE can take some parts of the works without permission from COPYRIGHT ACT?

FOAK: That’s because a small amount is generally considered fair – provided, of course it is not the heart of the work. That said, sometimes even an entire work may be considered FAIR USE … but it’s all in the details, it’s all in the details.

FAIR USE: Well, how was I supposed to know? Just because it’s hung around his neck, in the shape of a heart? And a very, very, very small heart at that!

COPYRIGHT ACT: But it’s the heart of the matter, FAIR USE! You really should know better by now, but it is case-by-case I suppose, no hard-and-fast rules for anything – even I get confused often enough – and then it’s off to the law courts with us! LIMITS has a far easier job, actually, despite all his hand-wringing and fuss-budgety approach - all he ever has to do is consult and map and a set of rules.

LIMITS: But the rules keep changing! I always have to ensure they are up-to-date!

COPYRIGHT ACT: Fair enough, fair enough. But you must admit I have to worry about all kinds of exceptions when it comes to FAIR USE. There’s just no hard-and-fast rule to apply, darn it! All I have to work with is the fact that FAIR USE is not a right, but a legal, defensible point (Center for Internet and Society, 2007). What FAIR USE has to prove is that he acted in Good Faith, and a “good faith determination means that the individual must understand the exception they are selecting, be able to articulate it, and be able to reasonably apply it to their specific situation” (Purdue University, n.d.).

STUDENT: But what’s that? (pointing - )

SCENE: All along the carnival courtyard, at floor level, there are half-oval insets with bars on them. If you look through them, you can just discern a dark, bare, and clean basement below. These basements are along three sides of the courtyard. Along the longest side, you can see many four-fingered, white gloved hands clutching onto the bars. If you look further, you can see a whole range of cartoon characters peering out wistfully at all the fun in the square. FAIR USE keeps trying to approach their outstretched hands but as soon as he approaches them, out step a set of CORPORATE BULLY BOYS who stand in his way, arms folded across their chests.

FOAK: Oh, that’s the dungeon in which the Corporate Copyrighted works are held. The one you are looking at is the DISNEY DUNGEON. It’s full of works that are in high dudgeon if you ask me. They resent being left out of all of the fun.

STUDENT: But why can’t they even come out and play – even the littlest bit?

FOAK: Blame the CORPORATE BULLY BOYS for that. They won’t even allow FAIR USE much of a chance – he’ll try to take it anyway when they are not looking, but we have discovered, they are always looking.

PUBLISHED: Here, take these pages? Please!

FAIR USE: I’ve used them ever so many times before though! What I do want though is what UNPUBLISHED is clutching to her chest.

UNPUBLISHED: I dare not, I am afraid!

COPYRIGHT ACT: Leave her alone! That’s the second time this evening you have made a pass at her. She’s not to be trifled with – you know that. UNPUBLISHED is to be left untouched – you may unwittingly do her great harm if you should take what’s offered without her creator’s consent.

ORPHANS: FAIR USE, FAIR USE! Those people in black gowns with funny square hats in the top floor are shouting down to us! Can’t we go join them? They say we can!

FAIR USE: Oh, the ACADEMICS and EDUCATIONALISTS. Which section are they from? (Squinting up towards the area).

COPYRIGHT ACT: The classroom on the left is the NON-PROFIT and the classroom on the right the FOR PROFIT domain. FAIR USE is welcome to toss you up to the NON-PROFIT, but the FOR PROFIT will need to come chat to me – humph! Well, actually, all uses really should be cleared first, but it’s more likely to be OK if they are non-commercial – and you are all orphans anyway, aren’t you? (The orphans nod in unison to the answer).

ORPHANS: Pick me! Pick me!

COPYRIGHT ACT: (Turning to the Orphans): No, no – we need to do some further division first. Now then, which are you are novels, flights of fancy and the like and which of you are factual? Divide yourselves into two lines. Those which are more fact-based, I’ll let you go so long – but just to the non-profits, mind! And be sure not to give too much of yourselves away, just in case. I know I’m taking a chance, but what is life without a little flutter. Now then, all you novels, poems, movies and songs … we’ll have to do a little more investigation if I am to keep my job with the powers that be as you are less likely to be able to fit the definition of Fair Use even within this sector.

SCENE: The factual works take turns running into carnival cloister and being hoisted up to the NON-PROFIT ACADEMIC section, while the bean-counters in the FOR PROFIT domain start writing screeds to send down to COPYRIGHT ACT to analyse the purpose and character of the use they wish to make of the works they can see before them. They even make some claim to those which are about creative expression, figuring that it is in the interests of the public to access such works.

COPYRIGHT ACT: <Shouting up at the EDUCATIONALISTS> Remember, still you need to ensure that you take into account the nature of the work, the amount that you borrow and the commercial impact you may have on the work and ensure you do not change the value of the work in the marketplace by using it (fairly, we hope) (Center for Internet and Society, 2007).

ORPHANS: Uncle COPYRIGHT ACT! Uncle COPYRIGHT ACT! Some of us don’t fit into fact or fiction!

FAIR USE: (Rubbing his hands with glee): Well, come on then, what are you?

ORPHAN PARODY: I am a Parody, Sir!

ORPHAN PARODY: ALL of me?

FAIR USE: Why, of course, all of you! You’re a fair use of copyrighted material. Now then, do we have any News or Criticism in amongst the Orphans? If so, be off with you into the PUBLIC DOMAIN!

ORPHAN NEWS: Bye, everyone! Hope to see you in the PUBLIC DOMAIN! Now that will be NEWS!

ORPHAN Are you sure I can leave? Seems strangely deflating after all of these

CRITICISM: years of longing just to be told – in an instant – I am not Copyrighted.

COPYRIGHT ACT: ORPHAN BILL, whatever were you doing with these in your care? These are exempt from the usual copyright requirements! Talk about doing them a disservice!

ORPHAN BILL: (Mopping his brow, heavily): I know that … I know … it’s just there’s so much to do and so little time in which to do it. If you can’t copy and upload, you can’t generate a database and work out who is what work, never mind trying to track down their creator or the creator’s heirs. But I really must do better with parody and the others. But it’s hard – I try to find those which were published without notice in the years between 1923 and 1977 or where they creators did not comply with renewal but it’s not only time-consuming but often also fruitless (Duke Law: Centre forthe Study of the Public Domain, 2020) so I tend to give up before I should I’m afraid. But I tend to assume that everything is copyrighted, since it’s hard to prove otherwise.

STUDENT: Is that all the exemptions accounted for?

FOAK: Well, let’s see: Fair Use is for Education (especially if Non-Profit), Criticism, News, Parody – and also, as was explained, the various conditions under which Fair Use is acceptable. Then there is what cannot be copyrighted, such as “ideas, procedures, methods, systems, processes, concepts principles or discoveries” (United States Copyright Office, 2020), as well as short things like Titles, names and slogans, variation in typography and “mere listing of ingredients or contents” (United States Copyright Office, 2020), inter alia. Of course, you already see LIMITS setting free into the PUBLIC DOMAIN those whose copyright has lapsed because of term limits – which are considered essential to ensuring the rich cultural heritage is set free and are sent into the PUBLIC DOMAIN. Then, if a creator never complied with the criteria for copyright it belongs to the public domain – either what is not copyrighted by the creator/s

STUDENT: But I thought copyright is inherent, it cannot be given away. As soon as a unique piece of work, from art to programming, is fixed in a tangible form, it is copyrighted.

COPYRIGHT: Indeed, dearie – nowadays, but back then there were formalities. In fact, there is also a distinction between the moral right of the creator to be associated with a work (which cannot be given away), and their commercial rights which can be given away. In fact, there are still sometimes some formalities which are useful such as registering your work or even placing a Copyright © logo on the work together with the date. These processes will enhance the copyright protections. In the US, through registration, creators can enforce their exclusive rights through litigation. The © logo is not required but can be of benefit – but it cannot substitute for registration (United States Copyright Office, 2020).

STUDENT: So, the PUBLIC DOMAIN is what remains?

FOAK: But you haven’t really explained fully what’s copyrightable yet?

STUDENT: COPYRIGHT, please help me here! It’s getting really confusing. My head is starting to ache.

COPYRIGHT: Dearie, you really must drink more champagne! Copyright is given to works that are unique and fixed or tangible. They must be original and must be able to be seen or heard or experienced. The rights that are granted are called exclusive and pertain to a range of things, from rights over how their work is to be translated, adapted, copied, arranged, or publicly performed. Only the creator has the right to use the work. Those who wish to use it must enter into a commercial transaction and pay for the usage thereof. COPYRIGHT is found in the form an idea takes, not in the idea itself (Center for Internet and Society, 2007).

SCENE: Suddenly, Carnival Courtyard lights up with people singing: MANIFESTO FOR THE PUBLIC DOMAIN! (https://publicdomainmanifesto.org/) <I will not copy it out in full here but reference it>

STUDENT: So, what remains then is the PUBLIC DOMAIN?

FOAK: Not so fast. The PUBLIC DOMAIN includes everything that is not Copyrighted. But don’t forget that not every kind of intellectual endeavour or property can be copyrighted and there are other legal mechanisms whereby works can be protected.

STUDENT: <Scratching head>. Such as?

COPYRIGHT: Well, Trademark ™ for instance, or a Patent. Both of them such kill-joys really, the Terrible Twins, I call them. Busy, Busy, Busy! They always are. Never have time for a party, oh no! Such businesswomen they are. If LIMITS ever had to take on their responsibilities, he’d have a nervous breakdown within a week!

FOAK: <In an aside to STUDENT>: The Golden Arches of McDonald’s and the brand name, Coca Cola are trademarks of their respective companies. So, it protects their goods, services, and establishments (Creative Commons, 2020). The main thing is that anyone who tries to confuse the public through making use of what is effectively their branding (and thereby stealing sales from confused consumers) can be taken on legally. Trademarks serve as a differentiator for companies and are very much intertwined with their branding efforts. Patent law, on the other hand, protects new inventions whether they are a new kind of medicine or a new technology. So even though patents deal with *ideas* as it were, those who originated that new technology or are able to benefit from it, also for a time-limited period. Much research and development, for instance, goes into new medicines, and hence granting patents provide a commercial incentive for companies to fund such research over an extended period of time.

COPYRIGHT ACT: They are all forms of Intellectual Property or IP which can be legally protected. Trademarks should be registered, however, to be enforceable, and patents refer to a new an useful invention that would be non-obvious, a new development (The Trademark Group, 2012). However, in exchange for disclosing how the patent works, you get protection – some may prefer to keep it as a Trade Secret (as Google did with its Search Engine algorithms). However, if others then steal it, or come up with another, similar idea, it can be hard to prove your secret was stolen, and the other party can then patent that work.

STUDENT: OK, OK, I think I have it. But can I now go and join the PUBLIC DOMAIN? There seems to be so much fun happening there!

STUDENT: Well, not by mistake – but I’ve used a Creative Commons license 4.0 Attribution, NonCommercial so I think I am good to go?

****************************New bits start here****************************************

FOAK: Technically, you are not PUBLIC DOMAIN since you have not used a Public Domain Tool CC0 to indicate you have effectively given up all your rights on your work. Which you haven’t. At the same time, you are not All Rights Reserved COPYRIGHT either. It’s a whole new kind of creation within copyright laws of the Creative Commons. So – why limit yourself to the Carnival Courtyard of Public Domain when there is the entire Creative Commons to be explored, which is what happens when resources are shared which are not regulated by the state, nor the markets (The Next Systems Project, 2016).

STUDENT: So, to the Creative Commons it is?

FOAK: Indeed – and the entire PUBLIC DOMAIN can join us there –

SCENE: They head towards the Creative Commons. As they walk out of the castle, the first glimmers of dawn are seen in the sky. However, despite taking some torches down from the walls of the castle, it is still too dark to discern much and they all hold onto one another as they wend their way along a crooked path, down the hill upon which the castle stands and to a large piece of ground covered in soft grass. As they walk, they hear the sound of a small trickle turning into a full-blown stream and birds begin chirping in the sky. Suddenly, the person in front stops and stumbles -

STUDENT: Hey! What’s that?

BY: It’s only me! But it’s always me! Me, me, me, me, me! You must always remember ME!

STUDENT: What on earth?

FOAK: That’s Attribution, otherwise known as BY. It’s the most important and may end up being the only attribute given a work under Creative Commons.

STUDENT: Why’s that?

FOAK: Well, the whole point of creation is the creator, and it is always essential to attribute the creator.

STUDENT: Always? What if they don’t want it?

STUDENT: Copyright?! You are still here? How is that possible?

COPYRIGHT: Well, the Creative Commons work around me – they were created with me in mind, so to speak. Unlike Public Domain, I can co-exist peacefully within it – Creative Commons occupies the space between All Rights Reserved and No Rights Reserved.

STUDENT: But what’s this about giving up Attribution?

COPYRIGHT: Sometimes, dearie, when someone makes use of your work and you don’t like the end-product but they were perfectly legally entitled to do what they did, the creator can ask them nicely not to attribute you and then the adapter must comply with your wishes.

STUDENT: OK – so who’s the adapter?

FOAK: The adapter or user or re-user of the work is that person (or corporate entity) who comes upon a piece of work that is licensed under Creative Commons, and then looks to the license to know what they can do or not do with the work – without asking the creator directly.

COPYRIGHT: The license doesn’t mean that you cannot ever do anything other than what it explicitly says. There is always, always, always the option of talking to the creator directly and getting special permissions. All that the licenses do is tell anyone who wants to use the work what they can do without asking for permission – or rather, certain permissions are pre-granted.

STUDENT: So, what are the attributes? There’s BY?

FOAK: I like to think of them as the Elementals, since they are the Element Building Blocks of how the licenses get put together, but they can’t all play with one another, and that’s wherein the complexity lies.

STUDENT: OK, so let’s keep it simple then. Attribution?

BY: Oh, I play with everyone, I am the maker’s mark and every creation originally had a maker, although they may be lost in the mists of time. But it’s always about ME! ME! ME! (his voice shrieking higher and higher with each me!)

Orphan BILL: Actually, it’s not always about you, BY the Bye! Even though they are not licenses, Creative Commons does provide some public domain tools which aren’t about BY. The first merely acts as to label those works which are actually Public Domain - for instance, very old works in museums for ease of referencing and it is called the Public Domain Mark. However, the second is more interesting and is a mechanism whereby creators can indicate that they have chosen to effectively provide their works to the public domain. This is called the Public Domain Dedication Tool or CC0. Although it is not recognised in every country in the world, the use of CC0 grants assurance to any user in the world that the creator would not assert copyright against them, even if the country in which they are using the work does not recognise this tool.

STUDENT: So, it’s not always about Me! Me! Me! Looking closely at BY, whose petulant little mouth is trembling with anger.

Orphan Work: No, it’s not! And at least those who use CC0 haven’t orphaned their works, but freely given them to the world to use.

BY: But it’s still – mostly – about ME!

NON-COMMERCIAL: And then there is me, NC. I am pretty much what it says on the tin – that the work cannot be repurposed or reused for commercial purposes.

FOAK: Although a commercial entity may use the work it can only use it in a non-commercial manner and a non-profit entity cannot use the work in a commercial manner. So it is the nature of the use of the work, and not the nature of the entity using the work, that counts in this case a non-profit organisation which is wishing to sell the work is not entitled to do this under the NC licence element.

NODERIVS: I am the element that ensures that no one can adapt or modify or remix the work, apart from the creator. No-one apart from the creator is allowed to adapt the work. Of course, in terms of copyright limits and exception which still apply, it is possible for a limited use of the work as an adaptation (for instance for data-mining purposes, or if they make limited, in-house use of the work without sharing it). But this specifically ensures that adapted works cannot be shared freely and publicly.

SHARE ALIKE: the Share Alike requires that any user of the work make sure that they licence any adaptation of the work under at least the same license. They can also share under a less restrictive license, but never under a more restrictive license. That is, a re-user cannot licence an adapted work where the original was shared under one of the Share Alike licence under a No-Derivatives license. They are required to stick to the original terms and conditions in terms of Share Alike.

STUDENT: Hmmm … so you are the Elementals, are you? I find sorting you out confusing. What are your super-powers? How can I tell you apart?

BY: I am the maker’s stamp. You find me on every object that is created. The moment I am made, set into an expression, the maker’s stamp is upon me. One way you can tell if a derivative of me is if you can still discern the maker’s stamp – though the maker can choose to stamp it out.

SA: I am the colourant you can’t get rid of. The moment you touch me, everything else you touch is coloured the same colour. If you use me, you can only re-use me with certain conditions and everything you make must be stained the same colour.

NC: I am the free hand that clutches. While I give to you freely, my touch makes sure you too must then give as freely again. Only those who use me freely can share me, and no-one except the originator or creator is able, directly, or indirectly (by means of a legal contract) use me for commercial purposes. But used as licensed, mine creates and unbroken chain of freely giving but interconnected hands that makes sure the next will give freely too.

ND: I am the rope that binds what it makes so tight it cannot be unmade and remade. It is fixed in a single position: so, and no other. No-one can unbind and loosen me again. Use me as I am, or not at all – there are no other options.

STUDENT: OK, I have a sense of what each Elemental is. How do they work together then?

CC LICENSES: Well, various of the Elementals combine in the license. The first is the easiest: CC-BY. Each and every single CC Licence requires that the Creator be given attribution. Hence, the abbreviation for every single CC licence will start with CC-BY. Although in earlier versions of the licence this characteristic was implied rather than explicit, based on the fact that over 98% of creator’s wish attribution it is now the default setting for every licence.

BY: See, it really is all about me! Me! ME!

STUDENT: But what about CCO?

FOAK: That’s not a License, but a Public Domain Tool. BY is right, every single CC License is about BY. But it’s the simplest to understand, and least restrictive. You can reuse, remix, revise, retain and redistribute whether for commercial or non-commercial purposes, you do not have to Share Alike and it is not NoDerivs.

COPYRIGHT: On the other hand, the most restrictive licenses are ND and there are only two of them: CC-BY-ND and CC-BY-NC-ND. Anything licensed with an ND attribute is not considered an Open Educational Resource.

STUDENT: But why not?

OER: Those works that are considered OER are licensed under four of the six licenses. All OER works enable users the capacity to: Reuse; Retain; Revise; Remix; and Redistribute content. However, both Revising and Remixing of a work are forms of adaption and hence forbidden under ND which does not enable a single alteration.

FAIR USE: Rubbing his hands in glee: I can, however, still make Fair Use of an ND work even within a collection – provided that is that I take a snippet thereof and do not alter.

DOG IN A MANGER:And I can make any kind of adaptation I wish, provided I do not share it with anyone else at all.

STUDENT: But what would be the point of that?

STUDENT: OK, so ND is like … elementally – what is it like?

FOAK: Sometimes I think of it like the binding of a basket which is such that you cannot unbind the basket at all. All other licenses allow for some adaptations but this – simply not. That said, you can reuse it – but only in its entirety and without modifications.

STUDENT: OK, so then we have the simplest, BY which enables almost any kind of use provided attribution is given, and then the sternest, ND. These two licence prohibits any user from creating a derivative work and sharing it. That is, only the adapted version of the work can be shared – and as usual, the creator of the work must be given attribution. However, interestingly enough, CC-ND allows commercial and the other, CC-BY-NC-ND only non-commercial use. What of the others?

FOAK: Well the tricky one is Share Alike. It’s that colouring you can’t get rid of, but which also won’t stick to some things at all. Because of that, there are only two licenses which are Share Alike, namely CC-BY-SA and CC-BY-NC-SA. If you try to mix two works with these licenses, then you have to license with the more restrictive use, namely CC-BY-NC-SA. This licence means that a) the creator has to be given attribution, b) the purpose to which the workers used can only be a non-profit purpose, and c) any adaptations to the work has to be able to be shared under the same, or a compatible licence. But certain materials simply won’t take the dye, so any ND work cannot be SA.

STUDENT: So, the sixth is then …

BY: CC-BY-NC. This licence means that any user must not only attribute the creator, but that the use of the work can only be for non-commercial purposes.

STUDENT: OK, now that I have sorted out what the Licenses are, how do I label them?

CC License: You need to give the Title, Author, Source and License. But the license are generally described in terms of three layers.

Scene: Butting in from the side comes the Three-Headed Goddess (3-HG), bearing a staff which contains an image of the waning, full and waxing moons.

3-HG: While some describe the Creative Commons licences in terms of three layers, I am not fond of that image since it implies some kind of hierarchy in which one could be seen to be superior to the rest. It also makes it seem as if each layer is independent of the others when in fact, they are interdependent. I am the same substance, but each of my three heads addresses or talks to three very specific, and different audiences in different kinds of languages

STUDENT: And what are these?

3-HG: Depending on who you are, I will either talk to you in legalese, or in ordinary, non-legal language, or in meta-data, but the answers are equivalent, though different and not everyone will understand all of them, or indeed is meant to in the case of the machines.

STUDENT: What does she mean by machines? And isn’t the law the base?

FOAK: Indeed, while the foundation is the legal basis, and Creative Commons 4.0 is accepted internationally. But legalese still needs to be translated into ordinary language, and multiple ones at that, so that people to be able to understand how it works. There is no point in creating a solution unless people are prepared to use it. But they can’t use what they don’t understand, so legal definitions have been translated into easy to understand ordinary language.

STUDENT: And machines?

3-HG: Well, the raison d’être of Creative Commons is about responding to the tremendous potential of the Internet, and as we all know very first thing we do when we are looking for something is to type our need into a Search Engine. Hence, the final translation is of the licences has to be into something that can be readily understood as meta-data by the machines. As a result of all this embedded data, works that are published online with CC license meta-data can be easily searched, retrieved, copied and disseminated – all in terms of the terms and conditions of their CC licences which are readily understood as an attribute of the work itself. This final layer is called a “machine-readable” version of the licence.

STUDENT: Great- then that’s it, then?

Orphan BILL: Um, not so fast. You’re in education, right? So now you want to use some of these CC Licensed works together, or adapt them – do you know how that works?

STUDENT: Well, with what I’ve learnt I know enough how to choose and apply a CC License for my particular work. What else do I need to know?

Collections: Well, first of all, do you own that work?

STUDENT: Well, yes, I need to own it to apply the License, don’t It?

FOAK: It gets slightly more complicated with Collections and Adaptions, but for the moment – yes, if you are the creator of a work, you can License it – but do think carefully about your choice.

STUDENT: Why?

COPYRIGHT: Simply because your choice is irrevocable. One you have made that choice; it cannot be cancelled. Sure, you can create a derivative work or re-publish it under another License, but even so, if someone finds the work ‘in the wild’ under the original, those licensing conditions still stand.

STUDENT: But why would that be the case? Why is it so important that Licenses are irrevocable?

FOAK: Let’s take the NC condition as an example. NC does not mean that for all time and everywhere no commercial use or re-use can be undertaken, it merely says that “Unless you have a different agreement with me, these are the things you can and can’t do with my work” (Creative Commons, 2007). Hence, this is the default for people or organisations that you do not have an agreement with and who wish to use your work.

COPYRIGHT: So, if someone or some entity does wish to distribute the work and charge, that is possible, but it is the creator who must enable or agree to that arrangement – the license states you can’t just go ahead without permission.

Orphan Annie: However, if your use is non-commercial, then you can immediately share since this is what it says on the tin as it were.

FOAK: The following provisos must be made, however; first, any commercial re-use has to be governed by a specific contract that details the nature of the relationship, but – and this is a very important but - NO commercial re-use of a CC NC can ever be EXCLUSIVE. That is, by selecting NC you have automatically placed the work into a “Some Rights Reserved” and cannot ever revert to a © “All Rights Reserved” position – this is for the moment, and for this manifestation of the work – it is irrevocable. However, when you think about it, it makes sense for the following reasons:

First, if the nature of the commercial agreement ever allowed under NC could be exclusive, then it is effectively All Rights Reserved Copyright. Hence, it makes zero logical (and hence legal) sense to create a license that will then simply be allowed to duplicate Copyright. Creative Commons works within Copyright law, it does not replace it or indeed duplicate it.

Secondly, this is where the ‘hoist with one’s own petard” comes in – commercial use traditionally required exclusivity. This means that in prior times, the creator relinquished their commercial rights to the work in exchange for royalties, but the full or exclusive rights resided in the owner of the copyright – who then was in a monopolistic position vis-à-vis ALL productions and reproductions of the work for whatever purposes whatsoever. Hence, if the legal agreement then is generated such that at any stage the new copyright owner has full rights – then even non-commercial use is voided, since the new owner now can prevent all copies from being made, even for non-profit purposes. Hence why CC licenses cannot be changed retrospectively since if they could be, then what would happen to the copies that were now erroneously duplicated in a non-profit manner, it is assumed that royalties would now be due to the new owner by these users. Hence, CC licenses can never allow this option, even for NC, and hence the irrevocable nature of the license is fundamental to CC licenses.

STUDENT: So how does that help the creator?

FAIR USE: The frictionless sharing that is generated by allowing multiple distribution platforms to re-share the work for non-profit purposes, is then meant to harness the power of the internet and ensure virality – which in turn is then supposed to help create a market, and which in turn then supports the creator in the long but not necessarily in the short term. At the same time, however, the immediate reach of the web can cause almost instant virality and success.

STUDENT: OK, so NC does not prevent the creator from making money from their creation, it just sets specific terms and conditions – and one of these is the non-exclusive nature of all commercial contracts that can be made.

FOAK: Remember, when it comes to finding CC works, there are various CC Search Engines which can seek the kind of work you are looking for as a result of the meta-data project that help creators.

STUDENT: OK, so I get it that the license are irrevocable. What else do I need to know?

COPYRIGHT: Well, based on your understanding of the Elementals, you can choose which of the six Licenses are applicable, or even reject all Licensing and use the Public Domain Dedication Tool to mark it as if it were Public Domain. But you also need to think through all possible uses of your work?

STUDENT: What do you mean?

FOAK: Well, have you thought about whether it can be used in a Collection or an Adaption?

STUDENT: Talk to me about Collections.

FOAK: A collection is a grouping of distinct works, each of which is clearly recognisable as its own original piece. You can have a collection of baskets of multiple colours, where each basket has its own distinct colour and is woven in a particular pattern using different materials (from natural materials such as bark, reed grass, the leaves of the gladiolus flower, the leaves of the ilala palm, to items such telephone wire and plastic).

Adaptions are different. Take another example: If you were to derive inspiration from your collection of baskets and create a new design based on all of their weaves and colours and patterns not to mention materials, you would create a new basket with multiple colours and designs and materials, each derived from one of the other baskets but that new basket would be original but derivative. Hence, a collection has each individual work as its own entity, and each entity can be licensed individually (though they may not fit within the overall collection depending on the license conditions) whereas an adapted work is its own entity, but is made up of multiple derivations from many other entities.

STUDENT: So, a set of works that are individual but collected together – like a series of essays – are a collection, while a chapter of a book which weaves together multiple strands of thought from multiple sources is an adaptation.

FOAK: Absolutely correct!

COPYRIGHT: Collections can be easily made from Public Domain works, and not readily made from Copyrighted ones (without explicit permission). However, that still leaves all of the works that have been licensed in terms of one of the six Creative Commons licences. “If the combination does not create an adaptation, then you may combine any CC-licensed content so long as you provide attribution and comply with the NonCommercial restriction if it applies” (Creative Commons, 2020).

STUDENT: Collections then (as long as no instance is an adaptation) can be created by any type of license?

FOAK: Not so fast. When creating a collection, despite the fact that they all have a CC licence, you may choose not to use certain works in it in order to ensure the collection is able to be used in the way in which you envisaged it. For instance, if you want anyone who accesses the collection to be able to use everything in it without onerous restrictions or conditions, you may find that you chose to exclude some of the works from the collection since their licenses are too prohibitive. So, you are not prohibited from using the works in a collection (without adaptation) provided you attribute them and comply with any condition such as ND, but you may find it not worth your while depending on how you want your end-user to use the collection.

COPYRIGHT: For example, if you want to create a set of images for your art class that you want them to adapt /remix – you would not want to include any license with an ND condition and if you wanted the class to be able to sell their resulting pieces, you may exclude any with an NC restriction. If you merely want to create a collection of images for reprinting in a beautiful coffee table book, then you may very well use ND, but if you are wanting to profit from your assemblage, you will steer clear of all licenses with NC in them as this use is prohibited by that Elemental. So, provided the works are used in your collection in terms of the rights awarded by their specific licenses and attributed appropriately in terms of: Title, Author, Source and License, collections are allowed. However, the adapter needs carefully to chose what is the purpose of the collection and hence it is often not appropriate that you use specific works in your collection but find alternatives.

STUDENT: OK, I think I understand Collections and why you need to think very carefully about your choices related to long-term use. But what of Adaptions?

FOAK: Here we come to the heart of the complicated matter. You are now truly in the material of Unit 4, the bane of the Creative Commons Certificate Course!

STUDENT: So – go ahead – enlighten me!

FOAK: Sometimes it is easier to define an adaptation by saying what it is not. Merely correcting a spelling error or making use of a different file format is not considered an adaptation. Generally speaking, even changing the resolution of an image is not considered an adaptation.

ORPHAN BILL: One kind of file format change that cannot be condoned, however, is the re-user’s application of an effective technological measure (such as DRM) to the work that would necessarily create limits on how people are able to download the work and hence must be avoided in order not to void the terms and conditions of the license.

COPYRIGHT: What is considered an adaptation is a significant reworking or change to the work, such as adding music to video, or adding stanzas to a poem, or translating the work into a different language, or greatly modifying a photograph in something like Photoshop, or turning a novel into a film. T

STUDENT: That means that the most important attribute of a derivative work is that it must evince sufficient originality that it is seen, or considered to be, an original work in its own right – despite having been inspired by, or based upon an original work - or even a number of original works. In other words, it is not a copy-paste but something other and more.

FOAK: So, do you think works that are ND can be adapted?

STUDENT: No! Not at all – such use is forbidden!

STUDENT: There are some adaptations that are technically not prohibited but discouraged since it makes any further sharing by others complicated and messy. But if you as a re-user are absolutely compelled to do adapt and mix two works, it is considered best practise then to license the adapted work with the more restrictive of the two licenses, simply because it makes it a lot easier for the next re-user of the material to adhere to the terms and conditions of the original license and not unwittingly violate them. When in doubt, err on the side of caution.

FOAK: While all the CC licenses apart from the ND allow remixes that can be made public as opposed to private, some “may impose limitations or conditions on how the remix may be used. For example, if you create a remix with material licensed under a ShareAlike license, you need to make sure that all of the material contributed to the remix is licensed under the same license or one that CC has named as compatible, and you must properly credit all of the sources with the required attribution and license information. Similarly, if you want to use a remix for commercial purposes, you cannot incorporate material released under one of the NonCommercial licenses” (Creative Commons, 2020).

STUDENT: OK, I think I have it mostly – but now tell me about Compatibility!

FOAK: Gestures to the stage and up comes the Adapters Compatibility Chart!

CC Adapters License Chart / CC BY 4.0

FOAK: It is important to note that certain kinds of licenses are incompatible with certain kinds of uses. For instance, it is trivial to point out that if a work is licensed as an ND, then all adaptations or remixes or revisions are not allowed by the user/re-user (though of course these are allowed for the originator / creator / owner of the license).

STUDENT: But doesn’t it become slightly more complicated than that with remixes, as indicated by the following chart, known as the remixers chart, which indicates specifically which types of works can work with other works or licenses in terms of remixing:

CC License Compatibility Chart / CC BY 4.0

FOAK: If you look at the above chart, where the tick boxes indicate that the license types can be remixed while the crosses that they cannot, it is evident that Share Alike is not compatible from a remixing perspective with many other types of licenses. The less restricted SA (CC-BY-SA) is only compatible from a remixing perspective with the licenses CC-BY and itself CC-BY-SA. The more restrictive NC SA is only compatible with CC-BY-NC and then itself: CC-BY-NC-SA. However, once you have remixed a work, the newly licensed work must also by CC-BY-NC-SA – the Elemental SA is truly like a dye that everything that it touches must become the same colour.

STUDENT: Hence, when remixing any works, it is important to know what works with other licenses can be used and also what the resulting license for the new adapted work can be. Also, using the chart will indicate what kind of license can be placed upon the new work (should a remix be allowed) and which is generally the more restrictive of the two).

FOAK: Congratulations! If you can use those charts effectively and efficiently then you have definitely worthy to complete the certificate course.

STUDENT: Phew! What a lot to learn. From Copyright and Her Limitations, to the Orphan Bill, Fair Use, Exceptions, and then meeting the Elementals, BY the mini-me! Me! ME! to NC the free hand interlinking with others in an unbroken chain, SA the indelible dye, and ND which is like an entailed estate that you can inherit but only use in its entirety – there’s been a lot to unpack, culminating in the various compatibility charts for remixing works.

FOAK: I think my job here is done.

SCENE: The sun finally rises full in the sky, a rooster crows, and the crowd is momentarily silent. But then they all start to play together, Public Domain, the various Licensed Works, some playing with everyone, like CC-BY, some keeping a bit to themselves, all those that are ND and some running away from the dye-laden SA while the NCs keep making chains of unbroken hands. The STUDENT, having learned what she needed to, turns to go – over the hills and far away – taking with her the knowledge she has acquired.

- end -

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