Creative Commons: What's Ahead, With Glenn Brown

Well, I certainly have a more healthy appreciation for Donna, Dan, Doc and anyone else who decides to blog a presentation or discussion. A course in court reporting would be a big help! Failing that, I've fleshed out and added some links to my realtime notes on Creative Commons Assistant Executive Director [thanks Kevin] Glenn Brown's presentation this afternoon here at Crosby, as follows.

Preliminarily, I should note Glenn ran his PowerPoint from his Mac laptop (could not tell from my videoconferenced view whether an iBook or PowerBook), and the Mac made itself right at home here after a little projector-futzing. Additionally, although we had initially thought Glenn might touch on Eldred v. Ashcroft, there must have been some miscommunication there. Creative Commons ("CC") is a separate, nonprofit entity with its own mission and no direct involvement in the Eldred case. Glenn's comments focused on Creative Commons: what it is, how it will work, and what are its more long term goals and strategies.

First slide, the traditional copyright notice: ©. This is a "brand" known worldwide, but copyright is undergoing a brand crisis, partly as the result of the shift in the U.S. (late 70's, early 80's) away from a scheme where creative works automatically went into the public domain unless affirmative steps were taken to protect. The automatic copyright scheme now in place began to cause confusion.

Then came the Internet. Massive creation of works, all automatically copyrighted. Most people, most 'net users, don't know that. Brand dilution: the © notice has lost some meaning now by being attached to what actually are noncopyrightable works.

The CC logo, , is a take-off on the immediately recognizable copyright symbol. Well, they assumed people would make that connection, but at least one person has thought the logo stood for "Cape Cod." (Big laugh.) So no one is immune from brand dilution problems.

The idea for CC has been kicking around for a couple of years. CC received a startup grant from The Center For The Public Domain, in Jan. 2002. Wilson Sonsini and Cooley Godward have been assisting with pro bono legal services.

One of the first hurdles CC faces is propagating the CC brand on the 'net. The default rule is automatic copyright protection, and this is hard and expensive to change; it's also unclear in the Internet context what is required to change it. This means creative works are going under-used. CC strives to make it easier for people to identify works in the public domain and increase the amount of materials people can use for free.

The primary CC project is its Web application, which will look and feel like most Web applications (think airline ticket purchase). The Web application will generate the CC license, logo and metadata that will help with searchability - both from the CC site, and from third party search engines.

A common question Glenn and CC get is: Who is interested? Mostly scholars, authors, photographers, and owners of online collections now, but CC expects broader use too. Also, Why do owners want to share their works using CC, especially when open licensing and GPL already exist? CC will provide a simple way to relinquish some use and distribution rights while maintaining control, and many people would like to be able to do this.

Public domain is ill-defined in the case law and not at all in the statutes. CC seeks to marry public domain dedication to a metadata translation of the dedication. A CC custom license will allow an artist to turn over various aspects of the work while still maintaining the copyright. CC intends at least at first to leave the software arena to the GPL scheme. (GPL and Copyleft briefly explained; uncertainties about how Copyleft applies and how far it extends touched upon.)

Another slide showed an example of a CC custom license (see here and here): this will specify the kind of use permitted, whether derivative works are ok (whether the work can be changed), whether public or nonpublic use is authorized (nonpublic = personal use, no distribution). A Copyleft provision is also available: specifies that derivative works (example: sample of musical work incorporated into another song) must also be freely useable - chain effect.

The CC Web application will generate a CC logo in HTML and other forms to be embedded in a Web page or file. It also will generate a license, in triplicate: human readable form (Commons Deed), machine readable form (browsers), and lawyer readable version (full license). CC is in the process of working out the precise language of the Commons Deed, and seeks to keep it simple and plain english. End users and copyright holders will be able to link through the Commons Deed - most important aspect of this application - to the other versions/layers (machine readable and lawyer readable).

On the machine readable/metadata side of things, CC's guru is Aaron Swartz; see also his CC bio sketch. Aaron is 15 years old, an RDF expert, involved in W3C and a heckuva lotta other stuff that impacts how the Web works and will work. [Aside from DMH: You've probably been pointed to his weblog many times.] Glenn fears for his job, as Aaron is bound to take over the whole CC enterprise - ha ha.

CC's primary use will be in identifying and searching for useable works. It is very close to finishing a first draft of the full ("lawyer readable") license. There will be an open peer-review-type process from the CC site, but prior to then Glenn invites feedback from lawyers in the copyright field. Email him if you are interested, glenn@creativecommons.org; he plans limited circulation of the draft and a sheet of related questions before publishing the proposed license for further review on the CC site. [Aside from DMH: several Crosby folks, me too, are taking part.] CC's other big focus will be helping users locate "featured content." There will be a featured content registry, linking to trusted third party sites. CC also plans to partner with third party search engines to ensure smooth operation of the machine readable part of the license. Brief discussion of Semantic Web concept - search engine turns Web into database built on the fly. CC works also will be findable through everyday Web browsing: locate work, click logo, takes you to the Commons Deed (which links through to the full license for more detail).

By fall, 2002, CC hopes to have the Web application functional, and plans an incremental release. Looking ahead: Global commons? Working on jurisdictional issues. [Aside from DMH: see my initial discussion here; Glenn got my email on this way back when, and says they're devoting much gray matter to the jurisdiction and fraud questions.] CC also is thinking about forming/providing an Intellectual Property Conservancy - this would be a means for CC to actually own and host some content, including software and other kinds of media. Similar to a land trust: you have a public good, and responsibilities incumbent upon owner. Sun and Java analogy: strategy was to offer Java free to the world and have products developed around it. Dilemmas for the owner included wholesale, unauthorized appropriation; dilemmas for the developers/users included trust (if copyright retained by Sun, no guarantee charges wouldn't apply down the road). With the Intellectual Property Conservancy, CC would ensure widespread availability of works in the conservancy/trust, while still being able to maintain their integrity. Another analogy: like a park.

Q&A:

How would CC work on non-Internet based material? It's anticipated CC will apply almost entirely to Web based material, but consider books or paintings: you could have a Web page for the item which would have the CC logo and link to Commons Deed/license. The Cathedral And The Bazaar example (Eric Raymond) given. Open publication license used for a print book.

How will the logo work? The public face of the CC structure will be the "CC" logo, with more symbols delineating use specifics on the Commons Deed. A "CCPD" logo for works entirely in public domain is anticipated.

What about these thorny issues of the international scope of the CC license? These are thorny issues. For example, there are moral rights questions in Germany and France; some terms of the license-in-progress may face enforcement issues in those countries. [Aside from DMH: see here and here.] CC is being cautious not to be U.S. centric.

Does CC plan to track the location/jurisdiction of its users? This is an open question, but CC is not in this to track users or certainly to collect detailed user data; its primary focus is to simplify license issuance and put creative works together with those seeking them.

What will the legal representation of the CC license be? It will be the logo on the work and/or on the Web page related to the work. Linking is anticipated as the significant legal act, but all this is pretty wide open.

What about fraud? What warranties and representations of authorship and ownership will be provided by those registering works? Registrants have to say they are who they say they are. Spoofing is a big issue that CC is working on addressing. Glenn thinks the license-in-progress has an indemnity clause to protect the user in case the registrant manages to register something to which he/she does not have the actual rights. Note that the software and online world is different and more insular than some other contexts - norms play a bigger role and may aid this issue.

Concerning photos, how do you see the interplay between CC and groups like Corbis and Getty Images? Glenn doesn't know if those organizations have a similar metadata component and/or are issuing a court enforceable license. Audience member suggests Tom McCarthy with Getty would make a good CC advisor.

What about the music aspect of CC? Expected to be most popular; will work like all other aspects.

What will the "featured content" consist of? Still in negotiations with several anticipated providers, but expect online libraries with thousands of photographs, archived articles and Web pages, and works offered by progressive book publishers.

What is your funding situation? Funding comes from grants and foundations; CC is doing well here, Glenn is comfortable they'll be in business for awhile; might even find a way of generating revenue.

Are you getting any resistance to the overall concept? Initially, CC fielded questions from the EFF and various free software camps, and assured them CC is not doing digital rights management or intruding on the turf of other licensing strategies. The biggest question CC gets is "where's the demand for this?"

Is CC politically active? CC can't lobby for legislation given its 501(c)(3) nonprofit status. Nor does it really see the need to try to change the current legal framework for CC to work. Instead, it seeks to strike a balance between total control of works, on the one hand, and anarchy, on the other, under the current legal structure. It doesn't need to change the laws to accomplish this.

This was the end of the formal presentation, but Glenn and I talked briefly afterwards about the fraud/spoofing question, and my other (previously emailed) question about whether CC anticipates playing any role in any disputes that may arise between registrants and the users of works. He told me CC sees itself primarily as a facilitator, and that redress for any wrongdoing probably will be left to conventional means of policing fraud on the Internet and the available civil remedies.