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Creative Commons Cultivates Copyright · Monday November 22, 2010 by Crosbie Fitch

In Confusion and Complexity: High time to prune the Creative Commons licenses? Terry Hancock suggests that the set of Creative Commons Licenses can be simplified and reduced. However, I suggest this is to miss the mission of Creative Commons.

The whole point of CC having a variety of licenses is to demonstrate that the copyright holding, self-publishing author is in charge of determining what their audience can do, i.e. to insinuate that copyright is properly a right of the author, to modulate as they see fit.

If CC was actually principled upon restoring to the public their freedoms suspended by copyright then it would have a single copyright neutralising license, either abdicating it (cf BSD), or copylefting it (cf GPL).

Unlike the FSF, CC is a pro-copyright organisation, hence its willingness to imply that copyright is as much a right one may wish to unreserve as an inalienable/inviolable (natural) right – also known as a moral right. Why on earth would someone wish to waive their moral right to authorship to permit someone to falsely claim authorship of their work? Conversely, given that the right to copy was derogated from the individual’s right to liberty in 1709 by Queen Anne, it is quite laudable to wish to restore this to the public from whom it was stolen.

Terry, apart from demonstrating a complicated interim migration path, is in danger of suggesting that Creative Commons should commit the apostasy of moving from an organisation principled on empowering authors’ use of copyright to one principled on enabling/persuading authors to restore to the public their cultural liberty.

A single, libertarian license is what a liberty principled organisation would have created. Instead, espousing copyright as if a right, CC has created a complex confusion of licensing pollutants that have prevented a simple demarcation between copyright/proprietary and copyleft/free culture developing. This is probably the original objective, to consolidate copyright’s prominence and importance in any self-publishing artist’s consciousness.

Nina Paley has it right. “Copying art is an act of love”. It is those who love an artist and their work who are driven to want to promote that artist, to share their published work among their friends.

Cultural intercourse is not something to be constrained by commercial privilege. We must move from an obsession with copyright and obeying the copyright holder, to loving art, respecting the artist, and honesty in sharing their work and promoting them. This means embracing moral rights, but deprecating anachronistic constraints on distribution, copying, communication, or commerce. If you love me, sing my song, tell my story, but be true.

Jesse Thompson said 2914 days ago :

Meh, I have no use for any of their licences except for CC0. I’m currently publishing my commercial work CC0. I would do BSD but I estimate it’s requirement to include attribution to be over-burdensome for would be sharers, and not really any of my business.

Just out of curiosity, you wouldn’t know of any legal instruments aside from CC0 which disarm the noisome recourse to copyright at my disposal to best approximate public domain work, would you?

While I agree that the Creative Commons have an agenda of their own, I’d say this one licence of theirs isn’t half bad. But I’m interested in your opinion on that as well.

wiki.creativecommons…

Crosbie Fitch said 2914 days ago :

CC0 as demonstrated by the FAQ you link to is corrupt in conflating privileges (legislatively granted ‘rights’) with natural rights. Being inalienable, natural rights (aka moral rights in the context of intellectual work) should not be the subject of a license or other testament, nor even suggested as something an individual would aspire to be without.

So, the CC0 is just another device to cement the privilege of copyright as equivalent to a right, except in this case to join them for those who wish to divest themselves of all nuisance ‘rights’, which for some strange reason cannot be divested in certain jurisdictions (that properly recognise them as natural, inalienable, unlike granted privileges).

So, CC0 attempts to throw the baby out with the bathwater, the rights out with the privileges. It goes too far as if in petulance, offended at rejection.

There is no CC license that has been formulated to emancipate the public from the yoke of copyright, and this is because CC cannot conceive of a culture in which the author is not king over their subject audience, possessed of a god given authorial right to dictate how their published work may or may not be used, and to demand due obeisance wherever it is.

As for simulating a lack of copyright ‘protection’ all bets are off. Try claiming copyright in your work as dated 1810? Or perhaps declare that your work is wholly unoriginal, primarily factual, and not covered by copyright? Alternatively, provide a covenant that you will not sue anyone for any act involving your work that they are at liberty to do. Also check out the discussions on Nina Paley’s site (as I linked to in my article).

Mathias Klang said 2913 days ago :

Interesting stuff. But I would hardly say the FSF is anti-copyright as the GPL is dependent on copyright to work.

An interesting discussion is Glyn Moodys interview with Stallman on whether Free Software could exist without copyright. blogs.computerworldu…

Crosbie Fitch said 2913 days ago :

Mathias, the GPL attempts to restore to the public as much of the freedom suspended from them by copyright and patent as possible. That it uses a copyright license to achieve this should not be mistaken as ‘supporting copyright’. A license restores liberty (typically conditionally), it is not a constraint.

If copyright and patent were abolished tomorrow it would be a tad silly for the FSF to campaign for their reinstatement in order that the GPL could once again restore the freedoms they suspended.

drew Roberts said 2912 days ago :

Crosbie,

“Being inalienable, natural rights (aka moral rights in the context of intellectual work)”

it is my understanding that in some places what is called moral rights are more than what I think you are calling moral rights. check the cc mailing lists for some indication of this.

all the best,

drew

Crosbie Fitch said 2912 days ago :

Yes, Drew, like trademark and libel, in some jurisdictions moral rights become contaminated by the monopolist’s proprietary assumptions of control over others’ use of a covered work or design, and so they lose sight of protecting rights (such as the public’s apprehension of the truth – against deceit) and venture into nebulous realms of protecting a privileged party’s reputation or peace of mind (against disrepute, defamation, insult, etc.).

By moral rights I refer to the natural rights relating to intellectual works as opposed to the privileges (aka legislatively granted rights). Most of the moral rights that tend to be enumerated can be pared back to their natural foundation. It is only assumptions of control inculcated by copyright that lets their definition drift back toward proprietary privileges.

From Wikipedia:Moral rights:

Moral rights may mean several things:

  • Moral rights (copyright law) are a subset of the rights of creators of copyrighted works, including the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work.
  • Natural rights, also called moral rights or inalienable rights, are rights which are not contingent upon the laws, customs, or beliefs of a particular society or polity.

Moral rights are not a subset of proprietary ‘rights’ nor traditionally part of copyright law (YJMV). They exist independently of statute, and are recognised, not granted. It is not surprising that many would have moral rights given equal status to privileges, legislatively granted ‘rights’.

I’ll run through the ones listed:

  • ‘Right of attribution’

One does not have a natural right to be attributed. It is only that attribution must be truthful, i.e. accurate, not misleading, that misattribution does not occur whether explicitly or implicitly. If attribution can be omitted without misattribution occuring then no dishonesty occurs.

  • ‘Right to have a work published anonymously or pseudonymously’

Again, this isn’t well phrased. One is at liberty to publish a work without needing to identify oneself as author. One’s right to privacy outweighs mere pursuit of the truth of authorship. That no author can be identified for a work doesn’t permit anyone else to claim or misattribute authorship.

  • ‘Right to the integrity of the work’

Many presume this to mean that an author can veto modifications to their work. In some juridictions it may well be interpreted that way, but really it’s that what is presented as an author’s work should truly be that author’s work (or authorised by them). If it is clear to the audience that a work is modified, that it is an unauthorised derivative of another author’s work, then there is no loss of integrity. A work that is bowdlerised or otherwise adulterated without the audience’s knowledge has lost its integrity, whereas if the audience is cognisant that it is a subtle derivative then it is a new work distinct from the original.

angros47 said 2611 days ago :

CC is, for media files, what freeware is for software.

A freeware can be downloaded for free, and copied, but often it’s closed, you cannot sell it and you cannot modify it (exactly lika a CC nc-by-nd)

And freeware is not free software (it can also slow-down free software); many freewares are abandoned, or become commercial software.

Also, in CC there is nothing about the “source code”: many multimedia file have a source, that is needed to modify them, like software; for example, a 3d rendering (made with Poser, for example) cannot be easily modified, if you don’t have the 3d model. A song could be hard to edit, if you have only the MP3 and not the MIDI file.
But usually, even with a CC license, there is nothing that requires you to share the “source” with the final work.

Another problem is that using the “source code” is not always possible: if you have a program, and its source code, with the right compiler you can get a binary that is identical to the original (so, you can do a single change, without touching anything else). But, with a song, if you get the lyrics, can you rebuild the original song? No, because your voice is not the same of the original singer. If you have the script of a movie, can you rebuild the movie? No, because you don’t have the same actors.
And sometimes, the “source” cannot be copied: if I publish a pencil drawn picture, you’ll have only a scan of it, and you cannot work on it with pencil: but the source is only one, and the only way I have to make a copy is to hand-draw another one.



 

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