"Why Creative Commons Gets it Wrong": a rejoinder

"Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong", Mira T. Sundara Rajan's guest post on Wednesday, has become more or less instantly one of the most controversial pieces to appear on the 1709 Blog -- and has certainly attracted some of the strongest criticism, not to say abuse (this is a moderated blog and the comments of some readers were rejected on the basis that personal abuse of an author is not an acceptable substitute for criticism of his or her position).

Mira has agreed to explain her position more fully in light of the points made by her critics. This is what she has to say (note: in her response, 'Creative Commons' is abbreviated as "CC"):

"In my blog post, I wanted to make two very simple points. First, I believe that CC should improve protection for moral rights in the new version of its licences. As I understand that preparation of the new version is in progress, this seems like a good time to point that out.

Secondly, I do not believe that CC should be the only mechanism for artists or authors in the United States to receive recognition for their moral rights. Rather, people who choose to publish through traditional channels should also be able to benefit from moral rights. At the moment, it would appear that the only outlet (other than CC) for recognizing an author's moral rights in the U.S. would be a private contract. Even other legal possibilities like the Lanham Act seem to be losing their relevance to moral rights (per Dastar). Given the limited bargaining power of most authors and artists, I think that a contract-based solution might only be applicable to very few individuals. Instead, standard-form contracts will include standard waivers of moral rights. Accordingly, the only way for moral rights to receive general recognition in the U.S. would be if U.S. legislators were to create protection for authors' and artists' moral rights (and, indeed, to do so according to the requirements of Article 6bis of the Berne Convention, to which the U.S. is a signatory).

In addition to these points, my post mentioned that the digital environment makes it difficult for authors and artists to receive remuneration for their work on the same basis on which they have been paid in the past. In other words, the publication model embodied by copyright law has become, in many respects, dysfunctional -- obsolete. During the past 10-15 years, while this transition from the old publishing world to the current digital scenario has been happening, only one viable alternative to traditional copyright protection has been proposed. That new model is CC. As a result, I think that CC is actually quite important. It represents a new way of thinking about publishing, and few other new ways of thinking have emerged out of the copyright problems of the past several years (we will probably be talking about iTunes and YouTube, as a method of music distribution for new bands, in a similar light in years to come ...).  CC has its place; as noted in my blog post, it is well-suited for so-called "amateurs" or people who, for various reasons, do not need or want to earn money from the publication of their work. However, it cannot apply to people who want to dedicate their lives full-time to the arts or to writing, unless they have independent means of subsistence.

Some commentators appear to be disturbed by my presenting CC as an alternative to copyright law. To me, it is self-evident that CC cannot outlaw copyright infringement, since copyright, in the U.S. and elsewhere, is a right conferred by federal law...! Someone who violated a CC licence could therefore be sued on at least two grounds - breaking the terms of the licence AND copyright infringement (for use of the work contrary to the terms agreed). This observation does beg the question, though, of what real contribution CC makes OUTSIDE the United States? In the U.S., the CC licence allows someone to give their work to the public while still benefiting from attribution. But, in many other countries, attribution is a moral right that cannot be waived, or may be waived only by explicit provision (the UK being a different scenario because of the assertion requirement in relation to attribution; in Canada, I believe that CC claims that implicit waivers of moral rights are allowed, but I'm not sure that this is the correct way to read ss. 14.1 (2) & (3) of the Canadian Copyright Act). So, by saying that moral rights are protected, CC overseas licences are merely acknowledging the state of copyright law in those countries, not adding anything to it. Someone who simply released their work on the Internet and announced that they "gave" it to the public might still retain their moral rights (ie. automatically and as required by local copyright law).

What seems to have roused the ire of the commentators on my post is my belief that CC is a non-commercial way of publishing one's work. I have not seen anything in any of the posted comments to change my understanding of how CC works. The fundamental licence on which the entire CC licensing system is built is an "attribution" licence. This means that anyone who publishes their work under a CC licence will expect to be attributed as the author of the work; but he or she will agree that the work can be used by anyone without payment of a royalty. Clearly, anyone who publishes his or her work under this licence agrees to forgo economic gain from that work. I suppose that, in theory, someone could simultaneously publish his or her work through conventional channels, and also release it under CC. But, unless the published work were different in some way from the work released under CC (ie. a sample released under CC), I cannot understand what incentive anyone would have to buy it. Why pay for something that you can get for free?".

Informal EU deal on orphan works done

To EU minds the orphan works issue
may appear less disturbing
than this now

As readers of this Blog will be well aware of, debates concerning how to make orphan works available to the public have ensued in the last few years, both in the US and the EU. 

This is because, in the current legal landscape, orphan works cannot be made available without the risk of infringing third parties' copyright.

Just to provide an example of the issues arising from orphan works, The Guardian reports that, “after running a pilot project to clear the rights for 1,000 hours of archive programming for online use, the BBC calculated it would take 800 people three years of full-time work to clear the rights to its archive, assuming that all rights owners could be found and that every one was prepared to grant the rights.”

There is no need to recall all the legal problems which the Google Book Search Project has been facing in the US for the last 7-8 years.

As far as the EU is concerned, various solutions have been proposed in the last few years to address issues concerning orphan works. 
These include the 2007 ARROW Project, and last year's proposal for a directive on certain permitted uses of orphan works.

As to the latter, in its 2011 blueprint, the Commission had expressly acknowledged that

"Facilitating the preservation and dissemination of Europe's rich cultural and intellectual heritage and encouraging the creation of European digital libraries is key for the development of the knowledge economy. Innovative licensing solutions are needed to promote the seamless sharing of knowledge and culture that allow academic institutions, businesses, researchers and private individuals to lawfully use copyright-protected materials while compensating authors, publishers, and other creators for the use of their works."

Yesterday the EU made a further step towards the creation of a legislative framework for orphan works. Indeed, the Parliament and Council representatives agreed on a piece of draft legislation. 

According to the official press release, 

Parliament's negotiating team secured provisions to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works. These provisions include clear rules on compensation for right holders who come forward after a work has been placed on line and a possibility for institutions to use any revenue from its use to pay search and digitisation costs.

Today, digitising an orphan work can be difficult if not impossible, since in absence of the right holder there is no way to obtain permission to do so. The new rules would protect institutions using orphan works from future copyright infringement claims, and thus avoid court cases like that in the US, in which a Google project to digitise and share all kinds of books, including orphan works, was blocked on the grounds that the orphan works question should be settled by legislation, not private agreements. 

A "diligent" search may be indeed rather exhausting

In compliance with the 2011 draft directive, the text agreed yesterday defines a work as an orphan if, after a "diligent" search made in good faith, it was not possible to identify or locate the copyright holder. 

Once a work has been granted orphan status, it "would be then made public, through digitisation and only for non-profit purposes. A work deemed to be "orphan" in any one Member State would be deemed as such throughout the EU. This would apply to any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country. It would also apply to works not published but nonetheless made available by institutions, provided that they could reasonably assume that the right holder would not object to this act."

There is no need to say that, should the right holder show up, he would be entitled to put an end to the orphan status of a work at any time and claim an appropriate compensation for the use made out of it.

Please Sir, can I have more ...
of harmonisation?

However, the draft legislation contains "a provision to protect public institutions from the risk of having to pay large sums to authors who show up later. Compensation would have to be calculated case by case, taking account of the actual damage done to the author's interests and the fact that the use was non-commercial. This should ensure that compensation payments remain small."

In addition, the parties agreed on inserting a new article in the draft legislation, so to allow public institutions to generate some revenue from the use of an orphan work.

Well done, says the 1709 Blog. However, for the sake of suspicion, this blogger ventures to argue that this project may go far beyond the sole issue of orphan works. Indeed, as declared by Lidia Geringer de Oedenberg, who is steering the legislation through Parliament and led the negotiations, this is meant as a  "first step towards harmonisation of copyright rules in the EU".  Does this mean full copyright harmonisation? 

Clear Channel agree to first US sound recording radio royalty

Clear Channel, the biggest radio company in the US with 850 stations, has entered into a landmark agreement with country music label Big Machine which will see the broadcaster pay a royalty for the use of sound recordings on terrestrial radio channels for the first time. In the UK these royalties are collected for the performance of sound recordings in all media by Phonographic Performance Limited (“PPL”) and whilst newer media in the USA such as satellite, internet and digital radio attract a royalty (currently collected by SoundExchange), US copyright law does not recognise any right to collect payments from terrestrial stations. Terrestrial broadcasters do though have to pay the “PRS” royalty for the use of songs (usually by way of blanket licences with ASCAP and BMI).

After pressure from the US Congress, a reluctant radio industry did start to negotiate a compromise with the record labels, but the talks collapsed. The broadcast lobby remains powerful in Washington although its clear some politicians are keen to introduce a system more favourable to record labels and recording artistes which would mirror the music publishing position.

Big Machine, headed Scott Borchetta, have seemingly been able to use the fact that a royalty does attach to internet communications of their sound recordings to lever Clear Channerl into making a payment for terrestrial uses too, although Billboard reports the deal is based on a share of advertising revenue across all of its radio output, rather than a ‘needletime’ or ‘per play’ royalty.

Speaking about the new deal at Billboard's Country Music Summit, John Hogan, CEO of Clear Channel's Media & Entertainment business said "We think its really important that with this new agreement that our business interests are aligned. When our interests are aligned, and when we have a very predictable, transparent business model, we are much more motivated to grow the digital business"

http://www.billboard.biz/bbbiz/industry/digital-and-mobile/clear-channel-s-john-hogan-discusses-big-1007241352.story

Equitable Licenses under French Copyright Law?

If there is one principle of French copyright law that is sacrosanct it is that assignments or licenses granted by an author of a protected work are to be interpreted restrictively and in favour of the author:  any right not expressly mentioned remains with the author.

This sacrosanct principle was upended by a recent ruling by the Supreme Court (May 30, 2012) involving a photographer and the renowned photographic agency Corbis Sygma.

The photographer had entered into an agency agreement with Corbis Sygma whereby the latter would market his works to third parties and pay him 25% of revenue.  Apparently, this agreement failed to state any assignment or license of any copyright interest in favour of Corbis Sygma.

When the latter digitized the photographic works and displayed them on its website, the photographer took umbrage and brought legal proceedings for copyright infringement, arguing that such acts constituted restricted acts (reproduction and public display) and were in no way authorized under the agency agreement.

The Paris Court of Appeal, applying the sacrosanct principle referred to above, agreed with the photographer and found Corbis Sygma liable for infringement.  This decision was reversed by the Supreme Court, which held that in so ruling without verifying whether the right to digitize and display was not implied (in the absence of contractual language to the contrary) by the agency agreement and the need to allow visualization by potential buyers, the Court of Appeal had violated the relevant sections of the Intellectual Property Code and, perhaps more significantly, Sections 1134 and 1135 of the Civil Code.  (The Supreme Cort also went out of its way to point out that the photographs that were displayed on the website were in low definition and protected by DRMs.)

Sections 1134 and 1135 of the Civil Code relate to the legal force of contracts and the principle under which contractual obligations cover not only what is expressly stated but extend to that which is implied by equity, law and usage.

The case was remanded to the Versailles Court of Appeal.

Link to Supreme Court ruling (in French):  http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/612_30_23431.html

Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong

In the third in her series of posts for the 1709 Blog on sensitive issues related to moral rights, Mira T. Sundara Rajan takes a close look at the implications for authors of the use of one of the most widespread and misunderstood institutions of modern copyright law: Creative Commons. This is what she has to say:

Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong

It is a well-known fact that the United States does not protect the moral rights of authors. This point has been noted in comments on earlier posts in this series, and there is only one exception to this rule (at the federal level) – a form of limited recognition for the moral rights of visual artists alone, represented by the Visual Artists Rights Act (VARA) of 1990 (some states do provide protection for moral rights, particularly in relation to the fine arts, but the significance of these statutes is limited, and a discussion of them is beyond the scope of this post). This legislation was adopted at the height of American interest in moral rights, shortly after U.S. accession to the Berne Convention, effective from 1 March 1989. The Berne Convention has protected moral rights since 1928, when it was revised to include provisions on an author’s right to be named as the author of his or her own work, and to protest damage or distortion of the work – particularly where the mistreatment of the work has affected the author’s reputation or “honor.”

When the United States joined Berne, the American government argued that U.S. law provided recognition equivalent to the moral rights of authors through legal alternatives that were well-established in American law. Possible legal protections for moral rights included actions for defamation or slander, and, until recently, consumer protection from false advertising under the Lanham Act – an “alternative” to moral rights that was effectively ruled invalid by the U.S. Supreme Court in Dastar Corp. v Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). Dastar is not clearly against the protection of moral rights through Lanham Act provisions; it is, rather, subsequent interpretation of this case that seems to have sealed the fate of moral rights under Lanham: I discuss this in my book, Moral Rights, 144-48. Today the United States has less legal protection for moral rights than ever. But there is a new alternative venue for moral rights in the United States: Creative Commons. The shortcomings of this alternative are so striking that the Creative Commons phenomenon should be a new and powerful reason for the American government to re-examine the possibility of introducing federal legislation on authors’ moral rights – not because Creative Commons has failed to recognize moral rights – but because it fails to recognize an artist’s right to be paid for his or her work.

Creative Commons is an extraordinary phenomenon. It has emerged as a true popular alternative to copyright protection – the one functional alternative to established models of copyright law that seem to have failed, in many crucial ways, in the technological context. The basic idea behind Creative Commons is to release one’s work into the public domain, and to do so immediately. All works eventually find their way into the public domain – often as long as 70 years after the death of the author – but releasing your work under a Creative Commons licence makes it possible to send your work instantly into the public domain. In practice, what this means is that you agree to forgo payments for the use of your work. You will receive no royalties from anyone who uses it, and, a point that is equally important from the perspective of copyright theory, no one needs your permission to use your work.

The idea of releasing works into the public domain for free and unconstrained use may be philosophically appealing, but, for many authors and artists, it must also be deeply unsettling. Creative Commons brings into stark relief the contrast between those who earn regular salaries and those who depend on royalties from the use of creative works. It is easy enough for a law professor, for example, to give his or her work to the public under a Creative Commons licence, since he or she need not depend on book royalties to survive. However, for a full-time writer, giving away work means that he or she will have to find something else to do to earn a livelihood. In other words, Creative Commons represents the legal face of a more general characteristic of the digital era – the erosion of artists’ traditional methods of making a living (this point is discussed more fully in my article, “Creative Commons: America’s Moral Rights?” (2011) 21 Fordham Intell. Prop., Media & Ent. L.J., available here).

Creative Commons licences are not perfectly free of conditions. To explain this point more fully, it should be noted that Creative Commons licences are actually a family of different types of licence, progressing hierarchically from the basic version, known as the “attribution” license, to licences that gradually impose further restrictions on the activities of users. The culmination of the system is a sort of “free advertising” licence, which requires that attribution of the author be maintained while the work, itself, is not altered – called, in Creative Commons terminology, the “no derivatives” principle, because it prevents anyone from making a derivative work (such as a translation or a collage) out of your work.

Clearly, this system of licenses has some important points in common with the moral rights of authors. Attribution is the foundation of the system, the basic principle on which Creative Commons licences are built, and from which, no use of a work can be exempt. At the same time, the idea that no derivative works should be made could be seen as a very general version of the moral right of integrity. It is one way of avoiding possible distortion or mutilation of the original work, but only in situations where the alteration of the work is dramatic, and constitutes the creation of a new, “derivative” work in its own right (as in the Monty Python case, Gilliam v ABC, 538 F.2d 14 (1976), here). The possibility of less dramatic alterations is not dealt with by the Creative Commons system.

The sense of a deeper affiliation between Creative Commons and rights of authorship can be further explored by considering what Creative Commons does when it designs licences for use outside the United States. Here, the fundamental problem becomes that every other jurisdiction in the world recognizes moral rights in one form or another. The international licences take an inclusive approach to moral rights. In the case of civil law countries, where an author’s ability to waive his or her moral rights will be limited, the Creative Commons license will not – indeed, cannot – interfere with the moral rights provided by statute. In common-law countries, Creative Commons will recognize the possibility that moral rights can be waived, but, in their comments on a draft proposal for the next version of the licences, they note: 

“We do not want to overreach. We have heard little justification for licensing or waiving moral rights that are unrelated to the exercise of the rights granted. The scope of the waiver is no greater or less than the scope of the licensed copyright and neighboring rights, except where no waiver is permitted in which case moral rights remain unaffected.”

Creative Commons is currently engaged in a new round of “versioning”, which is to overhaul the system of Creative Commons licences by the end of 2012. At this stage, Creative Commons essentially appears to be exploring two options regarding moral rights. The first would be, simply, to clarify the existing language of the licences in such a way that moral rights could be waived by implication (ie. with no need for any explicit statement by an author waiving his or her moral rights), wherever waivers of moral rights are generally permitted by local copyright law. Alternatively, Creative Commons is considering the possibility of taking “a more proactive stance in support of moral rights.”

Of these two possibilities, it would be exciting for Creative Commons to choose the latter, and support moral rights. This would create some new opportunities for protecting the quality of culture in the non-commercial and public domain environments. Maintaining the attribution and integrity of knowledge in the digital environment is a supreme challenge, and moral rights in Creative Commons works could lend strong support to doing so.

However, choosing this option may not be as easy as it seems at first glance. A pro-moral rights position could involve a degree of fundamental conflict for the Creative Commons movement, since the very idea of the movement is to create a realm where works can be “freely” disseminated. The comments on the Creative Commons information website suggest that, on some level, where moral rights are concerned, Creative Commons just doesn’t get it. According to the website, supporting moral rights “creates an internal contradiction where the licensor gives anyone the permission to redistribute his work, but then has the possibility to arbitrarily prevent someone from doing so, just because he disliked that someone.” The purpose of moral rights is to protect the cultural domain, and to establish respect for the creative ability and efforts of artists. Artists are responsible for asserting moral rights, but the basis of any moral rights claim is that the artist dislikes the treatment of his or her work, for artistic reasons that he or she can articulate. The goal of asserting an integrity right would not be to target any particular individual for “arbitrary” reasons – few artists could afford to launch legal proceedings on such grounds. And, indeed, if a creative work were to be treated in a derogatory manner, the public as a whole, and not only the artist, could stand to lose something important.

The real problem with Creative Commons is that it disposes of the copyright system without, however, providing an answer to the all-important practical question of how artists are to survive. In the United States, artists who want moral rights can opt for licensing their work through Creative Commons, but (unless they choose to license only a few select works to benefit from “free advertising”), they cannot expect to enjoy moral rights protection and earn money from their work at the same time. Welcome to the future?

The Commission v The Collecting Societies: this week's hearing

This week's Curia agenda contained the following item on Monday:

Hearing: Joined cases

T-413/08  SOZA v Commission 

T-414/08  Autortiesību un komunicēšanās konsultāciju aģentūra v Latvijas Autoru apvienība / Commission

T-415/08  Irish Music Rights Organisation v Commission

T-416/08  Eesti Autorite Ühing v Commission 

T-417/08  Sociedade Portuguesa de Autores v Commission 

T-418/08 OSA v Commission 

T-419/08  LATGA-A v Commission 

T-420/08 Sazas v Commission 

Annulment of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/C2/38.698 – CISAC), concerning an agreement in connection with the conditions of management and licensing of public performance rights for musical works by collecting societies relating to the use, in reciprocal representation agreements, of the membership restrictions contained in the model contract of the International Confederation of Societies of Authors and Composers (‘the CISAC model contract’), or the de facto application of those membership restrictions 

Were any 1709 Blog readers there? Can they give us a blow-by-blow account of what was said at the hearing?

Oracle not happy with API decision

Following on from our earlier blog on the Google v Oracle battle over whether or not APIs could be copyrighted, Judge William Alsup of the U.S District Court has now held that the 37 APIs in question in the case are NOT protected by copyright. 


 An API can be defined as  "An application programming interface is a specification intended to be used as an interface by software components to communicate with each other. An API may include specifications for routines, data, structures, object classes". In 2010, Oracle bought Sun Microsystems, which had developed Java. When it implemented the Android OS, Google wrote its own version of Java - but in order to allow developers to write their own programs for Android, Google relied on Java’s APIs." Oracle asserted a copyright in their APIs much to the consternation of  web lobby groups such as the EFF who  said that "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation".

Judge Alsup said "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality - even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law." 


However CNET add that the case seems limited in its scope and the court seemed very keen not to set a broad precedent, with Judge Alsup saying 


"This order does not hold that Java API packages are free for all to use without license" adding "It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act."


Google applauded the decision saying "The court's decision upholds the principle that open and interoperable computer languages form an essential basis for software development. It's a good day for collaboration and innovation." 


More on CNET here http://news.cnet.com/8301-13578_3-57444928-38/judge-says-37-oracle-apis-are-not-copyrightable/?tag=nl.e496 and the full judgment can be found here http://www.scribd.com/doc/95478789/Oracle-v-Google-Judge-rules-APIs-not-copyrightable

In a statement Oracle said that they will appeal the decision saying that a 'licence has always been required for an implementation of the Java specification".

Google's antipiracy action is not enough, says RIAA

A few days ago Google published its Transparency Report, which contains various data on content removal requests submitted by copyright owners during the period July 2011-May 2012 (see earlier 1709 Blog post here).

Google senior copyright counsel Fred von Lohmann acknowledged that "Fighting online piracy is very important". In particular, Google does not want its search results to direct people to materials that violate copyright laws. To this end, it has "always responded to copyright removal requests that meet the standards set out in the Digital Millennium Copyright Act (DMCA)." Indeed, "the time-tested “notice-and-takedown” process for copyright strikes the right balance between the needs of copyright owners, the interests of users".

This blogger thought that the data included in the Google Report was pretty impressive.

Contrary to her belief, in a post published the day before yesterday on the RIAA Blog, Executive Vice President Brad Buckles wrote that the data published by Google is somewhat inaccurate. 
Apparently, what Google does to tackle piracy is not enough: 

"It is good to see that Google ... continues to take steps to deter infringement. Transparency is also important -- knowing which infringing sites receive the most notices presents an important red flag regarding those sites.

Directing (online) traffic is
a nice task ...

But even more transparency is needed to fully understand the scope of the problem. Knowing the total number of links to infringing material available and the limitations Google imposes on rights owners to search for infringements reveals how meager the number of notices is relative to the vast number of infringement. After all, as recently highlighted here, search for any major recording artist's track and the term "mp3", and you'll find that most of the very first results offered by Google direct people to infringing material. Unfortunately, one sees similar results when one searches for any popular creative content followed by the words "free download."

On the one hand, Google states that it processes an overwhelming number of notices. On the other hand, Google's data misleads by calculating that the DMCA notice requests represent a tiny fraction of the pages on even the most recidivist sites."

...  which may become slightly challenging
during traffic jam hours

Buckles concluded by saying: 

"Clearly the current process is not working. Google is routinely directing people to unlawful sources of content, which is clearly at odds with data that suggests most people rely on search engines to identify trusted websites at the top of search results. If Google truly doesn't want its search results directing people to materials that violate copyright laws, more should be done to address this problem."

In any case [unavoidably, a cynic might suggest], RIAA “look[s] forward to continuing to work with Google and other intermediaries to find better solutions to this problem, and to gain more transparency into the information flows and search rankings."