If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
From its inception, I've loved Creative Commons. I hung out with Lisa Rein, Matt Haughey and Aaron Swartz while they coded up the first version of the site, and my first novel, Down and Out in the Magic Kingdom, was the first professionally published text ever released under a CC license, just weeks after CC itself launched:
https://creativecommons.org/
In those early days, CC licenses were primarily of interest to people who were steeped in copyright law, lore and litigation; so many of the early debates about these licenses turned on esoteric (but important!) questions about copyright; for example, how CC would interact with copyright's "limitations and exceptions."
You see, copyright has never meant the absolute right to control all uses of a work. Every system of copyright includes a set of "limitations and exceptions" for people making use of copyrighted works without permission, even if the copyright holder objects to that use. The best-known example of this is "fair use," a concept from American law.
Fair use is (potentially) extremely broad, but it's also extremely "fact-intensive" – that's the phrase lawyers use to describe the kind of legal question whose answer is almost always "it depends." Fair use might let you copy the entirety of a work, even for a commercial purpose. It might let you create new works based on existing works. It might let you do these things specifically to discourage people from buying the original. But…it depends.
If you know anything about fair use, it's probably something about a "four-step test" used to determine if a usage is fair. These four steps are just questions a judge might ask of someone who's been sued for copyright infringement, but who claims that they were making a fair use. The questions are:
I. What was the "nature and purpose" of your use? Were you doing something "transformative?" Were you criticizing the work? Were you using the work for educational purposes?
II. What was the nature of the work you used? Was it primarily factual (like a news article) or creative (like a short story)?
III. How much of the work did you take? Did you take more than you needed to transform the work, to accomplish your criticism, to teach someone?
IV. What impact did your use have on the original? Did the copyright holder lose money as a result of your use?
These questions are indeed enshrined in US copyright law, but (for better and for worse) you can't figure out if a use is "fair" just by asking these questions. Fair use is ultimately subject to "the rule of reason," a legal principle meaning that the law shouldn't result in obviously stupid restrictions. What's "obviously stupid?" Well, that's the tricky part – you'll have to convince a judge!
For example, the author of a book called The Wind Done Gone was sued for taking the characters, plot and setting of Gone With the Wind in order to tell the same story from the perspective of the enslaved Africans who were denied agency and moral consideration in the original. The court found for The Wind Done Gone:
https://en.wikipedia.org/wiki/The_Wind_Done_Gone
Wind Done Gone took the "heart" of Gone With the Wind (III), but then again, Done Gone was highly transformative (I), Gone With was also a work of fiction, entitled to the highest level of protection (II). Even worse, the point of Done Gone was to point out the gross defects in Gone With (I) and thus directly undermine sales and licensing for the original (IV). Anyone who claims you can answer fair use controversies by running through the four factors as though they were a checklist really doesn't understand fair use:
But even after you've acquired an appreciation of the fact-intensive, nuanced flexibility of fair use, you still don't understand copyright's limitations and exceptions. Fair use is important, but there's also "first sale," the doctrine that says that after you buy something, you own it, and copyright can't be used to interfere with your traditional property rights. That's why you can buy and sell used books, paintings, records, and other copyrighted work, even if they are sold with fine print that says you're not allowed to:
When it comes to copyright's limitations and exceptions, "fair use" and "first sale" are the big ones, but just as important are the small ones – the really small ones. Like other laws, copyright is subject to the principle of "di minimis" (from a longer Latin phrase that translates as "the law does not concern itself with trifles"):
https://en.wikipedia.org/wiki/De_minimis
Technically, it may be trespassing to step on someone else's yard. But if your shoe brushes up against their lawn while you're walking on the sidewalk out front of their house, it's not trespassing. Or if it is trespassing, it's a di minimis trespass, too small to matter to the law. A lot of potential copyright violations – like taking a picture of a passage in a book and posting it to social media – are so small that we don't need to apply a fair use analysis to them. They're trifles, and "the law does not concern itself with trifles."
These limitations and exceptions all apply without permission from rightsholders. They apply even if they make rightsholders furious. They are your rights, as a member of the public, as a purchaser of a work, or just as someone who whistles a song that's stuck in your head.
And that's where the esoteric early Creative Commons copyright debate comes in. Creative Commons is a way to formally codify and convey permission to use copyrighted works. Without Creative Commons, it's really hard – and expensive – to provide legally reliable permission to someone else to use something you've created.
If I want to let you adapt one of my short stories for the stage, we should both probably hire copyright lawyers at several hundred dollars per hour to draft and review a contract setting out what my permission really means. Worse: even after we've paid the lawyers, neither of us will likely really understand the fine legal technicalities of the deal. We just have to take the lawyers' word for it that the complex jargon in the contract is sufficient for our purposes. Between the complexity and the expense, there are lots of potential creative collaborations that would cost so much to paper over that they're just not worth doing, even if they'd delight everyone involved.
Creative Commons cuts through this with its standardized licenses, which spell out in plain language which permissions are being granted. Even better, these licenses are international, translated into the language and laws of dozens of countries. That means that you can take a CC licensed short story from Japan, animate it using CC licensed 3D models from Italy, set it to a CC licensed soundtrack from Indonesia and release it in Ukraine, and the whole thing just works.
Those uses – turning a story into an animation, using a 3D model, syncing a soundtrack to a video – are all pretty ambitious uses, especially if you're going to make the final result indefinitely available to the general public. It makes sense to paper over these uses, and Creative Commons makes that legal work as simple as linking to your sources and their licenses in your final product.
But there are plenty of uses that don't need licenses – even ambitious ones. Remember Wind Done Gone? There are circumstances when you can adapt someone else's story without permission, relying instead on a limitation or exception to copyright. And of course, there are plenty of trivial uses – pasting a photo into your groupchat, say – that are di minimis and also don't need permission.
These copyright flexibilities are critical. Imagine if you could only criticize someone's work if they gave you permission to do so! From the founding of CC, copyfighters raised serious concerns that CC would teach people that they can only remix other people's work if they have a license, be it a CC license or the kind that you negotiate with a lawyer.
Today – 25 years later!- CC is an unqualified success. Without CC, we wouldn't have Wikipedia! You find CC licenses on Youtube, Flickr, Bandcamp, the Internet Archive, and in many of the most important scholarly and scientific journals in the world.
But, also, 25 years later, the world is even more convinced that you should always ask permission: "better safe than sorry." I don't know if CC contributed to this culture of timidity. More likely, it was bullying copyright trolls who terrorized people into a reflex of asking permission for everything, always.
As the creator of more than 30 books, hundreds of collages, and tens of thousands of essays and blog-posts, I am often on the receiving end of these permission requests.
For example, people often ask me if they can use my CC licensed works in ways that the associated licenses clearly permit. I'm sure the people who email me for permission to do things I've already granted them permission to do think they're being polite, but I really wish they'd stop. When someone asks me if they can make a use permitted by my CC licenses, I need to carefully parse through their use to make sure they're not asking for something more.
This is time-consuming work that often involves several volleys of email just to confirm that, no, they're just asking if they can do something I've already told them they can do. This is not a good use of anyone's time! By all means, drop me a note with a link to something you've remixed from my work. That's fun! It's a lot more fun than making me play detective in order to figure out if you're exceeding the license's permissions.
There are also a lot of requests that clearly amount to fair use and/or di minimis usage. You don't need to email me to get my permission to read a brief passage from one of my books on your Youtube video! You don't need my permission to quote one of my stories in an English exam! What's more, the world would be a lot shittier if you did, so let's not act as though that's reasonable behavior, lest we shift the (already far too restrictive) norms, which might even lead to a legal change.
Finally, there's the people who email me about their desire to make uses that are more (ahem) ambitious, but that no one could possibly find out about or get angry over…except for the fact that they emailed me to ask my permission.
You want to make a tiny bootleg edition of one of my novels for your anarchist book fair? That's totally a copyright infringement, it's super-illegal, and if my publisher found out about it, I'm sure they'd send you a sphincter-puckering legal letter telling you to knock it off (and maybe even demanding that you disgorge the seven dollars, three bottlecaps and eleven cool feathers you took in trade for those pirate books).
But my publisher won't ever find out about it – unless you email me asking for permission. I absolutely cannot give you permission to do this. I have a contract with my publisher promising that I will never authorize someone other than them to publish that book. Once you tell me about your intention to do this, I'm obliged to tell my publisher, so that they can tell you no in language that would strip paint off a barn.
Buying a classroom set of books, but you also want to paste chunks of one of my books into your educational institution's classroom intranet for use as a teaching aid? There's no way my publisher would ever find out you did that, and if they did, sure, you'd also get a blood-curdling legal letter. But dude, all my books are DRM-free. You could have just pasted the text into your CMS. In what universe is my publisher going to pay one of their lawyers to review, adjudicate and paper over your request to make a use that you're not proposing to pay them for?
Let's be clear: I'm not giving you permission to pirate my work. I already spend far too much of my time chasing down dickheads who sell competing editions of my books on Amazon and Audible. I'm sick to the back teeth of wrangling Ingram's takedown process to get rid of bootleg print editions of my books.
What I'm saying is, all of your interactions with copyrighted works need not involve the author and publisher. There is a whole universe of uses that might technically violate copyright, might technically not fit into di minimis, first sale or fair use – but these are also uses that no one would ever find out.
I get it. You may feel like you can't tell the difference between the kind of uses that no one would give a shit about; the uses that might attract a bone-chilling lawyer letter; and the uses that might land you in court. I'm sorry, but I can't help you figure that one out. I'm not a lawyer. Even if I was, I'm not your lawyer.
This is one of those areas where I break with my friend, the wonderful John Hodgman. On his indispensable podcast "Judge John Hodgman," he frequently admonishes people who are uncertain if they're overstepping a bound in a commercial establishment to ask an employee for permission. For example: should you fill up a water glass with soda water from a self-serve dispenser?
John says you should always ask the cashier. But I've worked jobs like that, and I can tell you that there were plenty of jobs where my boss felt very strongly that taking $0.0000001 worth of water and bubbles without paying for it was theft…and where I thought my boss was a dick for thinking that. If I pretended I didn't see you getting a glass of fizzy water, the worst that would happen is my boss would tell me to keep a closer eye on the customers lest they steal his precious CO2. But if you asked me whether you could fill your glass, and my boss caught me saying yes, I'd be fired.
There's a lot of normal, perfectly fine stuff that technically violates copyright that I can't give you permission to do, because I've signed a contract with my publisher. If you ask me, I'll have to ask my editor, who will say no, even though he thinks it's fine, too. If I push it, he'll have to ask the lawyers, who will almost certainly also say no, even if they think it's fine, because it doesn't make sense to spend hours papering over a legal agreement with someone who wants to sell seven copies of a book at an anarchist book-fair or upload a couple chapters of a book to a school's intranet.
Are there instances in which you might misjudge which category your use falls under and end up in court? I guess so. But if that's your concern, asking my permission does no good, because I'm just gonna tell you no.
India First to Ratify the Marrakesh Treaty for the Blind; 79 Total Signatories to the Treaty
The World Intellectual Property Organization (WIPO) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled now has seventy-nine signatories. This treaty, also known as the “Marrakesh Treaty” or “Treaty for the Blind” was a significant achievement as the first WIPO treaty dedicated to limitations and exceptions, focusing on the rights of users rather than increasing the rights of rightholders. Significantly, India became the first country to ratify the treaty on June 24, 2014 (deposit with WIPO on June 30, 2014).
The treaty sets forth minimum standards for limitations and exceptions designed to facilitate access to accessible format works for persons who are blind, visually impaired or otherwise print disabled. It would also permit cross-border sharing of these accessible format works, allowing countries to avoid unnecessary duplication of efforts in the creation of accessible format works and also facilitate the importation of works in other languages. For example, a popular title would not have to be created in accessible format work in the United States, then again in Canada, then again in the United Kingdom, then again in Australia, and so forth. It could be created in one English speaking country then shared for the benefit of persons who are visually impaired in other English speaking countries. Persons in the United States could also benefit from this treaty through the importation of accessible format works in languages other than English, either to benefit those residing in the United States whose native language is not English, or to benefit those who are learning a foreign language. Tiflolibros in Argentina, for example, has a large library of Spanish language accessible format works that could be shared with beneficiaries in the United States if the treaty entered into force. More detailed information about the treaty is available in the “Users Guide to the Marrakesh Treaty.”
There was a recent flurry of signing activity due to Article 17 of the Marrakesh Treaty, which closed the treaty to signing one year after adoption of the treaty; June 27, 2014 was the last date for a country to sign. Signing the treaty signals that a country agrees with the treaty and essentially constitutes an endorsement of the instrument. While it does not create binding legal obligations to adhere to the requirements of the treaty, it does oblige the signatory from undermining the treaty’s objectives. Countries that have signed still need to ratify the treaty in order to be bound by it, and twenty ratifications are required before the Marrakesh Treaty will enter into force. Although the treaty is now closed to new signatures, other countries may join the treaty through a one-step process acceding to the treaty (rather than the two-step process of signing then ratifying).
A round of applause should be given to India for being the first (and currently only) country to ratify the Marrakesh Treaty, though it is expected that Kenya will soon follow. India’s swift ratification, within one year after the treaty’s adoption, is a record for any WIPO treaty and signals the importance of the objectives of the treaty.
In addition to the excellent news of the first ratification of the Marrakesh Treaty, there have also been nineteen new signatories over the last two months, twelve of which occurred over the last week. Notably, the EU signed the Marrakesh Treaty on April 30, 2014, and a number of EU member countries followed suit. The new signatories include: Argentina, Australia, Austria, Belgium, the Czech Republic, the European Union, Finland, France, Germany, Greece, Guatemala, India, Iran, Ireland, Mexico, Norway, Poland, South Korea and Slovenia. The United States signed last year on October 2, 2013.
The treaty initially opened for signature at the adoption and signing ceremony of the diplomatic conference on June 28, 2013. Fifty-one countries signed at the adoption and signing ceremony, a record number of signatories on opening day for any WIPO treaty. The full list of the seventy-nine signatories is available here. While this large number of signatories demonstrates the overwhelming support for the Marrakesh Treaty and is a reason for celebration, at least twenty of these signatories must take the next step and sign the treaty so that it may enter into force.
With India depositing its instrument of ratification, only nineteen more are needed. The United States, which already has robust limitations and exceptions to benefit persons who are visually impaired, should demonstrate leadership in this area and be one of the first twenty ratifications.
