Introduction

It is often said that today’s economy is based on knowledge, making it markedly different from economic states before¹. Copyright (and other intellectual property laws) has played a central role in the development of this situation, by enabling those who create information to earn recompense for their work. The laws governing this linkage of economy to cultural creation have expanded over the past century. The length of time a work can be copyrighted has now been extended from 28 years in 1710 with the British Statue of Anne (the first copyright law) to 50 or 70 years after the death of the author. There has also been a tendency to increase the length of time copyright is in effect when a particularly famous and profitable piece of work is due to leave it, the classic example Mickey Mouse is now protected under US law for another 13 years, at least. In recent years, the growth of the Internet and digital information has led to the commercial interests lobbying governments to introduce new laws to protect their cultural goods. Some have seen these laws as an unwarranted invasion of the rights of the consumer, and as a desperate rear guard action against the changing nature of the digital economy. Because these laws act to stop ordinary consumers from using purchased intellectual property in ways which are technically possible, they have had a tendency to weaken the privacy rights of the individual. Proposed systems, such as those developed by the Trusted Computer Group², would put in place system monitoring at the hardware level, and literally prevent copyrighted material, such as MP3 and other media files, from being played by those not authorised to do so. Similarly, Microsoft has stated that Vista, the next version of Windows to be released in 2007, will not allow high definition video to be outputted to non-trusted display devices (Fisher, 2005). These developments are part of a technology called Digital Rights Management, or DRM. These Technological Protection Methods³ (Dreier, 2005) restrict the ability of consumers to use or copy material that they have purchased, either on a physical medium or via the Internet.

These technologies also often place additional restrictions on the use of the information which are outside copyright law, such as preventing copying from digital documents to quote from them, or stopping users from backing media up or moving it to another computer. TPMs have also been used to impose restrictions on information already in the public domain. When Adobe’s eBook Reader was released one of the titles offered for download was “Alice in Wonderland” by Lewis Carroll, versions of this (public domain) book were not originally allowed to be printed or have text copied from them⁴ (Lessig, 2004). Laws such as the Digital Millennium Copyright Act (DMCA) of the USA prevent users from reverse engineering these TPMs, even if their reason for doing so is to exercise their ‘fair use’ rights. These technological and legal restrictions on the rights of consumers to use cultural goods that they have purchased have all been put in place in order to prevent piracy, that is, the illegal copying and selling on of information that one does not have rights to. Digital systems are very open to this kind of copying because it is possible to produce identical copies on a large scale at comparatively cheap prices; witness, for example, the thriving market for pirated DVDs in China, and, in fact, in the West. The expansion and intensified enforcement of copyright laws and systems are an attempt to prevent this loss of revenue.

I will examine the process via which copyright laws have expanded their scope and powers, based on a capitalistic process, and the consequences of this to the free exchange of cultural goods. The Creative Commons⁵ organisation, which has emerged to attempt to prevent this expansion, will be a central focus of this examination. I will look at them in relation to both the mainstream ‘owned’ culture systems, and to their impact upon copyright itself. I will question whether they can achieve meaningful change to the laws surrounding intellectual property, or if they remain caught up in the hegemonic discourse of copyright.

Literature Review

The Concept of Culture

An early conception of culture in the social sciences was formulated by Tylor; he defined it as “that complex whole which includes knowledge, beliefs, art, morals, law, customs and any other capabilities and habits acquired by man as a member of society” (quoted in Peterson, 1979: 137). This is a rather broad conception of the idea of culture, including basically everything that society is and does. From this definition a reduced definition can be created: that culture is norms, values, beliefs, and expressive symbols (ibid.). However, it is apparent in modern studies of culture that the expressive symbol has become the most important element. What needs to be decided is therefore how this element relates to society. The four frameworks outlined by Peterson (ibid.) are: culture mirroring society; culture as symbols creating and recreating society; where culture is manipulated in order to maintain or change power groupings; and finally, culture being deliberately produced and therefore possibly disconnected from society. Because I am studying culture, and specifically the expressive symbols of culture, it is important to define exactly how it interacts with the rest of society. Several theorists have constructed relationships, which I will now discuss.

Bourdieu imagines culture, in its various forms, to exist in the same conceptual space as economic capital (Swartz, 1997). To him, it is one of four types of capital – economic, social, symbolic and cultural. Cultural goods exist in an embodied state, and they require the interaction of conscious entities, who have the related cultural knowledge to understand them and in order for their meaning to become apparent. To me, embodied and objectified (culture that exists in object form: e.g. books) cultural capital are the same things, because they both contain information that can have meaning – objectified culture is merely an information carrier for embodied culture. The root of social inequality in contemporary societies, according to Bourdieu, is the unequal distribution of these cultural goods, and the means to utilise them.

Hirsch’s (1972) model of cultural production is that of the “culture industry system”. This works to regulate and package creativity and thus to transform it into something that is predictable, regular, and therefore marketable through the mass media. It reduces the amount of people required to create a mass audience to the minimum, because each has to be filtered through the selection agents (those who represent creators, such as music producers and literary agents), and then again through the media organisations. The mass media, the end stage of the culture industry system, is used to distribute information about cultural production through ‘gatekeepers’ such as reviewers, talk show hosts (the best example being of course Oprah Winfrey) and journalists. Sometimes, it is more efficient to attempt to bypass this stage, and to create (or make it appear that one has created) something that is similar to other cultural products that have been successful, such as a sequel or a genre piece. Feedback in this system occurs via measurement of the amount of media ‘buzz’ created, and also by simply counting the sales of the media and its related products. If we examine this system through Griswold’s (1994: 15) cultural diamond, interlinking the social world, creators, receivers and the cultural object, we can see that the actual piece of culture created by the industry is unimportant – as long as some hits are generated, the individual product doesn’t matter, money is more important.

Issues of Authorship

Although copyright is closely linked in our laws to the idea of the author, the conception our society holds of the author is a relatively recent creation. This conception, of a solitary genius creating unique and original works, stems from the late 18^th and early 19^th Centuries and the birth of the Romantic Movement. As Woodmansee (1994) identifies, as we go further back in time, a collective definition of authorship becomes more apparent. Earlier works, before the introduction of Gutenberg’s printing press, were often collections or commentaries, taking the works of one or more artists and compiling or adding to them. The idea that any one individual could create something totally new was not generally prevalent. It is not until we get to around the time of Samuel Johnson, regarded by most now as the archetype of the modern author, that artists began identifying themselves as unique creators. It is ironic that Samuel Johnson is regarded as such, because he viewed himself more in the light of collective authorship, and often contributed his works to others without requiring that it be attributed to him. Not long after this peroid, with the founding of the Society of Authors in 1883 by Sir Walter Besant (Laurenson, 1969), the idea of the author becomes entrenched

We can also see this idea of collective authorship as contemporary in other societies. Strathern (2005) examines the ideas of multiple authorship and collaborative creativity in Papua New Guinea, specifically, the problem of the derivative nature of works and “simultaneous originality” (that is, several people engaging in an original act collectively, so that each original impulse cannot be separated out) and how this relates to international copyright law, which the New Guinean government is required to comply with. As recent struggles over Australian Aboriginal art and the authorship and ownership of images have also shown (Strathern, 2006; Brown, 1998) the contemporary idea of copyright law, with its individual creator and licensing systems, does not wholly interface with the nature of creativity in other parts of the world, and, as we shall also see, in the West as well.

The idea of ‘owning’ intellectual property is therefore deeply connected with the Enlightenment/post-Enlightenment idea of individual authorship, and that of originality. In America, only ‘original’ works may be copyrighted. However, the standard of originality has been reduced to a point now where all it means is a lack of plagiarism, with no requirement of “novelty, ingenuity, or aesthetic merit” (Abrams, 1992). This watering down of the standard of creativity required in order to be granted the rights of authorship has expanded the number of works that may be granted copyright. It has also therefore changed, in the eyes of the law, what is means to be an author. As we saw above, the modern conception of authorship required some kind of solitary genius, creating original works. However, if what the law defines as original is anything as long as it is not directly plagiarised, than an author can be someone who creates almost anything, even if no creativity goes into it.

It is possible that the creation of copyright law created the very idea of the author that it was written to protect. This would change the causal emergence of authorship, making it not something that is naturally occurring and therefore should be protected by law, but something philosophically imagined and then given birth to by the ideological structures of society. Because the cultural production system is built around the idea of the solitary author entity, filtered through various agents and organisations, it is very difficult for other ideas of authorship to be represented. In the cases where multiple authors do exists, the methods for payment and attribution break down (Lessig, 2004). Both groups and individuals can be creative entities, a concept the law has difficulty coping with.

Law and the History of Copyright

The first legal statutes dealing with intellectual property granted exclusivity rights in the city state of Venice in the 15^th Century (Bettig, 1996). William Caxton bought the first printing press to England in 1476, and by 1529 King Henry VIII had promulgated an Index Librorum Prohibitum, preventing unlicensed manuscripts (Lange, 1992). When the Printing or Licensing Act expired in 1694-5, the Stationers Company, a guild, petitioned Parliament for an Act that would protect their “right to copy”. In 1709-10, Parliament passed the Statute of Anne, the first copyright law, which would serve as the basis for all future Anglo-American laws of copyright. There are several things that we need to examine before we get to this statute however. Firstly, although there was no “positive” law (that is, statutory law) protecting the rights of publishers after the Printing Act expired there was a great deal of “common” law (law made by judges). The common law of England at the time gave publishers exclusive rights to print books they owned for all time – it was their property so therefore anyone else printing it was stealing from them. Secondly, the arguments of the time were not really about property, they were about monopolies. England had a great deal of problems with Crown granted monopolies at that time and so Parliament took it upon itself to limit them (Lessig, 2004). What the Statute of Anne did was grant publishers monopolies to print, but only for a limited time of 21 years, after which the work would enter into the “public domain”. This was not what the publishers had wanted, but the issue did not come to a head until 1774, with the case of Donaldson vs. Beckett. Donaldson, a publisher who wanted to make copies of works that Thomas Beckett owned the rights to, specifically James Thomson’s poem ‘The Seasons’, argued that whatever common law rights existed were terminated under the Statute of Anne. The case was heard by the House of Lords, who voted two to one in favour of Donaldson and rejected the idea of perpetual copyrights (ibid).

The first American copyright law was passed by the United States House of Representatives (Congress) in 1790. The American constitution states that “Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Notice that the clause asserts the power of Congress to promote progress, not to grant “creative property rights”. The Framers of the Constitution were very specific in this, that the point of a system of copyright and of intellectual property rights was the promotion of progress in science and the arts, not the maximisation of profit for publishers or authors. The first American copyright act established copyright with a length of fourteen years, extendable once for a further fourteen. The scope was limited to maps, charts and books, and did not apply to “derivative works” (i.e. translations). As technology changed, so did the law however. Radio brought compulsory licensing; cassette tapes the right to copy for private use (ibid.).

‘Fair use’ is intended to allow people to use copyrighted material without having to acquire permission to do so from the creators. It allows people to criticise, quote from, comment and report on, and use for teaching purposes works that would otherwise be far too expensive for most to afford. It was developed as common law in the 19^th Century, and enshrined in statute in America in the 1976 Copyright Act (Harvard Law Review, 2002). In Britain, the concept is called fair dealing and is less encompassing than its American counterpart, allowing only private study, criticism, review and reporting, and non-commercial research (UK Patent Office, 2004).

Recent laws, such as the Digital Millennium Copyright Act, have made it illegal to circumvent TPMs that have been put in place to enforce the creator’s rights. This is illegal even if the protection methods stop one from using the work in a way allowed by fair use. There has been substantial criticism of this law, from both the left and right wing. The libertarian Cato Institute has compared it to making fence jumping illegal to prevent trespassing (Lee, 2006). Therefore, we see the ownership of culture being further enforced, even to the detriment of what it was originally designed to protect, and eroding the principles of fair usage for the purposes of criticism that the courts, and later the legislature, had carefully crafted.

Copyright, Hegemony and Political Economy

It is useful to examine the idea of copyright from the perspective of hegemony. Marx (2000: 192) says in the German Ideology that “the ideas of the ruling class are in every epoch the ruling ideas”. As the corporate class is debatably the present ruling class, it is therefore their ideas, in the conception of copyright and the matrix of ideas surrounding it, can be applied to the ideals of our present day ruling class. When the first copyright laws were written property rights, arguably the foundation of American and other societies, were extended to the realm of intangible ideas. These ideas, like the ideas of property rights generally, have become entrenched in our cultures. This “neoliberal orthodoxy” (Boyle, 2005), that property rights are good, and therefore more property rights are better, forms the basis of our modern hegemony. Questioning them has become antithetical to the dominant ideology of America. Copyright can be imagined as an unquestioned hegemonic ideal in modern capitalist societies. It has changed from a system to prevent monopoly to one that promotes it; changed from a necessary evil to something that underlies the post-industrial mode of production. It was originally introduced, at least in the American constitution (Article I, section 8, clause 8⁶) to promote innovation, and it is now, arguably, being used to stifle it (Creative Commons, 2006a).

If one is to examine copyright, then one must also examine the economic systems surrounding it. Marxist political economy offers many interesting perspectives on the subject. Firstly, one can examine the philosophy of intellectual property, which reifies economic rationalism as a natural human trait; this extends to the assumption that humans require economic reward in order to engage in creative activities. This is counter intuitive, as humans have been producing cultural goods for thousands of years, even before there was an economy to reward them (Bettig, 1996). One of the problems of intellectual property and protecting it is that the marginal costs of reproducing and distributing it approach zero. There is a high fixed cost -the initial costs of creating the content- but a very low or non-existent cost of reproduction. In economic science, this is expressed as “the situation where the marginal cost of another use or user approaches or is zero (MC = 0)” (Schmid, 1985, quoted in Bettig, ibid.). This, indeed, is one of the primary reasons for copyright, from an economic point of view – the protection of investment from piracy. Without copyright, there would be no method to achieve a return on ones initial investment in the cultural product. Linked to this is another problem: the nondepletability of intellectual property (Bettig, 1996). On the one hand, copyright allows companies to recycle old property in new markets and mediums. An excellent example of this would be Disney, who re-releases old movies continuously, in new formats, or in “enhanced special editions”, allowing much more value to be realised from the comparatively small initial investment. However, cultural products must compete against not just current releases but all previous cultural goods. As older products are often discounted, consumers must be convinced that it worthwhile to spend their capital on new releases.

We see that the logic of capitalism, and its necessarily expansionist properties, leads it inevitably to attempt to hold more and more areas of culture as property. As Harvey (1989: 344) expresses it: “precisely because capitalism is expansionary and imperialistic, cultural life in more and more areas gets brought within the grasp of the cash nexus and the logic of capital circulation”. Once the idea of culture as property was established, in the early 18^th Century, and as the rate of return on industrial and consumer goods decreased in the late 20^th Century, the cheapest labour was utilised and manufacturing technologies reached the limit of their growth, so capitalism ensured that its other great source of profit, culture, was adequately protected.

From a more orthodox economic standpoint, copyright and intellectual property laws in general are concerned with maximising the difference between the value of the cultural property created and the social cost of the system that is required to administer this law (Besen and Raskind, 1991). There are various methods of doing this, such as compulsory licensing systems that exist for music on broadcast media and television re-broadcasting via cable networks (Lessig, 2004).

Economists acknowledge that intellectual property markets are inefficient in both private and social terms – a lot of economic benefit is lost through the enforcement of copyright systems and limiting of cultural creation: the best copyright can do is try and maintain a balance (Bettig, 1996). However, contemporary communications technology (such as, the Internet) is upsetting this balance because it puts the ability to copy into the hands of the consumer.

Knowledge, Discourse and Power

The legal entity of copyright forms an explicit linkage between knowledge and power. Foucault theorised that power produces knowledge, rather than the reverse, because a person in a position of power has the ability to decree what is to be counted as knowledge. Because this link is so important, we can say that power and knowledge directly imply one another (McNay, 1994). Similarly, discourse is controlled through prohibition: it is not about what one can say, but rather what one cannot say that really controls what manner of discourse can take place and where its boundaries are. Foucault’s thinking on discourse presented it as well-bounded areas of social knowledge (McHoul and Grace, 1993). In a specific historical period, a discourse is that which constrains and enables thinking, speaking and writing. It is relativised, so that there can no longer be exclusive access to any objective ‘truth’. In fact, power establishes a “will to truth”, a distinction between truth and falsehood, and so determines what knowledge is valuable, namely, what is “true” (McNay, 1994).

Resistance against power has a tendency to arise at points where power relations are at their most rigid and intense, therefore, the inevitable outcome of repression is resistance, and the more extreme the repression, the more extreme the resistance. Because resistance is formed at the nexus of repression, the means via which resistance can take place is defined by the nature of the repression itself – the very means through which subjects are constrained also compose the means through which they may express themselves (ibid.).

Discipline is the ‘physics’ or ‘anatomy’ of power, the instrument by which power is exercised (Foucault, 1984). It is a conglomeration of the systems of micropower that form the basis for our representative, juridical society. The metaphor of Bentham’s Panopticon, expanded to society as a whole, is its technique of coercion. The social expectations, the implicit contracts, the subtle hierarchies: it is through these tiny expressions of discipline and heightened one way visibility, which make up the Panopticon, that the visible systems of power and punishment are reinforced. The systems that have emerged around copyright are expressions of this power relationship – not only the legal restraints, but the changing social constraints that surround the copying of cultural goods.

Cultural Ownership

A History of Cultural Ownership

The idea of being able to own a piece of information was foreign to pre-Enlightenment societies. This was because it was not cheap and easy to copy works – it took the same amount of effort to make each copy of a book, because it had to be done by hand. With the development of the printing press things changed – it became easy to make hundreds or thousands of copies of a single work. However, it was only possible to do this if you had the capital to buy a printing press; therefore it was a centralised activity. Before, book production was inherently decentralised because one person who could write could produce just as well as any other (Stallman, 2001). There was some centralisation, in Ancient Rome, where rooms full of literate slaves would make many copies of the most popular works, and in the medieval Church, but it was mostly done by individuals who wanted their own copies of something.

The Statute of Anne (discussed above) is where we first see the idea of copyright as a trade off, between the rights of the public to read books, cheaply, and the rights of the publisher to make money from these books, for a limited time. This trade off, of the public’s natural right to make copies so that more books can be written, is only advantageous if it is difficult for the public to make copies in the first place (ibid.). Over the next 300 years, it became progressively easier for individuals to make copies, although until the development of video and cassette tapes in the 1980s this did not really commence massively. This was when the first round of lawsuits over the manufacture and availability of devices which could copy copyright content occurred. The most famous US case was over the Sony Betamax, where the movie and television industries argued that the video cassette recorder was used primarily for piracy. In that case, as there were also substantial “non-infringing uses”, it was found that Sony had every right to make and sell them. From this point onward, a battle emerged, with users on one side finding that they liked being able to, for example, make a copy of a CD and share it with their friends, and the media industry on the other, who see this as simple theft. In several countries, a compromise, similar to the compulsory licensing agencies that collect money from radio stations and pay it back to artists, has emerged where a tax is placed on blank media with the proceeds going to the entertainment industry.

The Internet, however, had made the situation a great deal more complicated. It is now a trivial matter for a user to download all manner of copyrighted content, from music to movies to computer games. The first major court case concerning this was over the infamous Napster file sharing system. As soon as that had been shut down however, more systems to swap content were already in place. The organisations of the publishers, the RIAA⁷ and the MPAA⁸ in America, have started to engage in lawsuits against individuals, forcing settlements out of those too poor to engage in lengthy court battles. Given there has only been a couple of thousand lawsuits, and there are millions of people sharing files, the odds of getting caught are still very small, and there are also a number of emergent organisations exist that will assist you if you do.

Another issue with current American copyright law, enshrined in the 1976 Act, is that copyrighted works no longer require registration in order to be protected. Along with the current extensions of term, all pieces of creative work automatically have a term of protection of at least 95 years. As no register is kept, so called ‘orphan’ works occur, where the work is still protected but no owner can be found. These works languish, un-reproducible and unusable by anyone.

The Debate

Of the various groups engaged in the battle, none seem to know what they actually want. The companies proclaim loudly about theft and artists going hungry. The advocates of free culture talk about ‘freedom’, about being able to use culture in ways that people have not thought of yet, and about being able to remix things, the same way musicians do. If culture is heavily entwined with ownership rights, if everything has to happen through agreements between lawyers, then this may well stop a wellspring of creativity from occurring. Cultural capital needs to be continually replenished, but it is only in the interests of the culture industry to do so if it is possible to make a profit. There is also the problem that a large amount of the culture that has been created in the past 100 years is no longer available for sale. The second hand markets provide something of an outlet for this, but not a very efficient one. Copyright has made it difficult to offer much of this culture for free, because most of it is now proprietary, and even if the creator cannot be found, as with ‘orphan’ works, the legal issues mean that it will never be made available. Trying to clear old, multi-authored works like movies for use is practically impossible, because so many people were involved and have to be contacted for permission (Lessig, 2004).

Since the fall of the Soviet Union and the opening up of China, copyright has shown signs of becoming a global hegemony in which the existence of copyright is presented very much as an inherent ‘natural right’, akin to property rights in general. Because so much of the West’s economy is now tied to information, the protection of these rights has risen to a high place in the political order. International treaties such as TRIPS⁹ have linked intellectual property laws to free trade regulations, even though such laws could be seen as a restriction on trade. Campaigners have complained that this places unacceptable burdens upon developing countries, especially when it comes to emotive issues such as patent rights for medicines. Given that the USA did not respect the intellectual property rights of other countries in its earlier years when it was a developing economy it is ironic that it is now the strongest enforcer of intellectual properties laws on other countries. .

The trade off, outlined above, between the state and the people has been broken, because the compromises that occurred at every point when a new technology was introduced (like the outcome of the Sony Betamax case and radio compulsory licensing) have not occurred with the Internet (Stallman, 2001). Instead, in order to protect the few works that still have and produce value, copyright has been extended to all. We have been turned towards a position of extreme copyright protection. Now, all works are owned, all culture is owned, and nothing can enter the public domain after the 1920s, except when an author specifically releases a work to it. This is profoundly different from the origins of ownership and cultural production outlined above and in previous sections, and so this change should be analysed. What effect does making all culture a commodity, to be bought and sold, have on the general culture of society, and on its ability to continue to make cultural artefacts? One can hypothesise that entertainment companies are trying to reduce the scope of the public domain to reduce the amount of competition from free resources. As the Internet has enabled much easier and cheaper access to these public domain goods, entertainment companies may find it increasingly difficult to produce cultural goods that are ‘original’ enough to require the consumer to immediately purchase them.

Corporate and State Power and Hegemony

The state and corporate entities have great combined power to enforce hegemony. Before the Internet, they had the potential to control almost all methods available for the broad dissemination of cultural goods and information. After the advent of the Internet, and especially the World Wide Web and high bandwidth connections, hegemonic control has been retained by managing intellectual property rights. American law recognises the fair use of copyrighted works for parody and criticism, however, if information is locked by technological protection mechanisms, then it is much more difficult to quote from them; and if the legal system is not in your favour, in that the threat of litigation can prevent criticism or parody of a cultural product owned by another, then one is not free to quote and criticise. For example, the estate of Martin Luther King Junior charges academics $50 a line to quote from his most famous speech, “I Have a Dream” (Jeffery, 2006). The estate, through its rights as the copyright holder, can refuse permission if it does not agree with the work the lines are to be included in. Now, fair use would probably allow most quoting of the text, but it is easier and quicker in creative terms to pay the fee and avoid a costly legal fight. While this is not a problem for the media companies who can afford departments full of lawyers to mediate terms for the use of cultural products, it is a problem for the bedroom creator, an individual who wants to use the cultural goods of their society to create something new. In recent years, the latter have become more important in our cultural life. Firstly in music, as electronica and rap became more popular, and now in video, as the cost of equipment has decreased. However, such creators also represent a potential threat to corporate media, because the Internet has given them the ability to widely disseminate their products, bypassing the traditional distribution networks.

Creative Commons

History

The Creative Commons movement owes its existence to both Professor Laurence Lessig and to Richard Stallman. These two men developed the underlying philosophies of the Free Culture and the Free Software movements respectively. I am choosing to analyse the Creative Commons in relation to the above discussion because it is currently one of the most visible movements which is consciously engaging with the struggles of contemporary copyright, within the medium of the Internet.

Free Software

The Free Culture movement emerged from the Free Software movement, which was founded by Richard Stallman. Stallman worked at the MIT Artificial Intelligence (AI) lab in the 1970s and early 80s. When he was first there, the hackers¹⁰ themselves developed operating systems for their computers, which were mutually and freely shared with other universities; reciprocal sharing and development systems which were later to become enshrined in the ideology of free software. However, in 1982, when the AI lab bought a new computer system, they decided to use the proprietary operating system that the company also sold. Because it was protected by copyright and licensing one could not look at how the system worked, or make changes to it if one wished. Stallman made the choice to reject this purchased system, and instead in 1983 founded the GNU¹¹ Project. Its goal was to make software that was, in the sense of ‘liberty’ rather than ‘gratis’, free (Stallman, 1998). The definition of free software, according to Stallman, is:

• You have the freedom to run the program, for any purpose.

• You have the freedom to modify the program to suit your needs. (To make this freedom effective in practice, you must have access to the source code, since making changes in a program without having the source code is exceedingly difficult.)

• You have the freedom to redistribute copies, either gratis or for a fee.

• You have the freedom to distribute modified versions of the program, so that the community can benefit from your improvements. (Stallman, ibid.)

In order to protect the work that he was doing, Stallman invented the concept of Copyleft (FSF, 1996). Copyleft is a system of licensing that uses the provision of copyright and contract law to add, essentially, additional restrictions to the works placed under it. However, these restrictions are present in order to enhance the freedoms of others. The archetypal copyleft license is the GPL¹² (FSF, 1991) and it is to this license which all other copyleft licenses are compared. It grants people the freedom to do all that Stallman laid out in his definition of Free Software, with the important proviso that if you redistribute the software it must be done under the same license, and you must include all modifications you make to it. Also, if you include any part of the program in another program, that program must also be released under the GPL. It is those two provisions that have caused some people (i.e. Mundie, 2001) to call the GPL a ‘viral’ license, spreading its ideology into whatever it touches.

Free Culture

Lawrence Lessig serves as professor of law at Stanford Law School and is the founder of its Centre for Internet and Society. A well regarded constitutional scholar, he has argued several cases before the US Supreme Court, including several dealing with copyright. When fighting the Eldred vs. Ashcroft case in 2001, which argued against the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act, he helped to found the Creative Commons organisation (Lessig, 2004). This organisation, incorporated as a charity in the US and Britain, was set up because Lessig and others felt that copyright, originally designed to promote progress, had instead become more about control (Creative Commons, 2006a). Based on the GPL, it crafted licenses that could be easily applied to content on the Internet, specifying what one could and could not do with content over and above what the law normally allows. Using these licenses, creators could communicate with consumers exactly what they wanted to allow them to do with the content they possessed.

One of Lessig’s criticisms of current copyright law is the break down of “fair use”. He feels that many creators simply cannot afford the expensive lawyers are required in order to defend a fair use claim, and so do not even attempt to use the content (Lessig, 2004). An example of how this can be circumvented is illustrated in the Creative Commons introductory video (Creative Commons, 2004), “Get Creative”, tells us of Steve McDonald, who took the tracks from the White Stripes’ album White Blood Cells, and added his own base line to them. He then put these tracks on the Internet. As the story tells us, he received oral consent from Jack White of the White Stripes, and so could do this legally. By making it explicit what one could and could not do with the material, Creative Commons wanted to remove the ‘middle-lawyer’, so that content could be used without having to go through a lengthy process of rights-assignment. Creative Commons thinks that by making it easier and clearer to share works, creativity will be boosted.

Free Software and Free Culture share the same basic premise: using existing copyright law to make sure that cultural goods can be shared and built upon. They think that collaboration is at the heart of culture and creativity, reflecting the pre-Enlightenment idea of authorship. They are a conscious resistance movement against the excesses of copyright, in both software and the arts, trying to make sure that the future, in their eyes, does not consist entirely of ‘owned’ information.

Goals and Methods

The goal of the Creative Commons organisation, as stated on their website (Creative Commons, 2006a), is to build a layer of reasonable copyright between the extremes of “all rights reserved”, the current state, and an “anarchy” of no intellectual property rights and makes a direct comparison to the works of the open and free software movements. The “problem” (Creative Commons, 2006b) that they are attempting to solve is this: with the advent of the Internet, the ease by which creative goods can be copied, “pirated” if you will, has vastly increased. In response, the major rights holders have started to do several things: one, they have attempted to prevent technologies that allow infringement from being deployed; two, they have invested in tools such as technological protection methods and digital rights management to restrict what the consumer is able to do with their cultural goods (Drier, 2005); three, by lobbying governments to provide legal protection of these protection methods; and four, by engaging in publicity campaigns to educate young people about the consequences of copyright infringement. The barriers of entry to someone who might wish to use contemporary, technologically cutting edge, cultural products are therefore large and getting larger.

The primary method that Creative Commons has used to accomplish these goals is the creation of licenses. These licenses allow producers of content to establish a variety of conditions by which their work may be shared. These conditions are Attribution (must acknowledge the original author of the work), Non-Commercial (cannot use the work for commercial purposes), No Derivatives (cannot distribute changed copies of the work), and Share Alike (must distribute the work under the same license conditions) (Creative Commons, 2006c). There are a variety of individual licences that one can create by combining these four attributes. For example, one could create a licence that allows people to use your work as long as they say it was by you (Attribution) and that their work is also shared under the same license conditions (Share Alike). There are also other licenses available, such as the Founders Copyright, which is the 14 years plus 14 years extension that the original US Copyright Act enshrined; the Developing World license, which is a mixture of a normal Creative Commons licence with the added ability for people in developing countries to exploit the product without any restrictions; and the Sampling License, which allows musicians, primarily, to take small ‘samples’ of music and use it in there work. This last license was created because of a number of court cases (i.e. U.S. Sixth Circuit Court of Appeals, 2004) that have made even unidentifiable sampling illegal without permission.

Community Perspectives

Several authors or project leaders have spoken about their decision to make their content available via Creative Commons’ licenses. These interviews are available from the Creative Commons website. In the spirit of the Creative Commons, I have quoted long extracts of their perspectives verbatim, in order to exemplify their ethos of grafting together creations from different sources.

Cory Doctorow¹³ is a science fiction author and blogger. All of his novels have been published online under Creative Commons licenses. He was interviewed after the publication of his first novel, Down and Out in the Magic Kingdom. He spoke on his reasons for using a Creative Commons license:

“Why am I doing this thing? Well, it's a long story, but to shorten it up: first-time novelists have a tough row to hoe. Our publishers don't have a lot of promotional budget to throw at unknown factors like us. Mostly, we rise and fall based on word-of-mouth… And telling people about stuff I like is way, way easier if I can just send it to 'em. Way easier…. Yeah, there are legal problems. Yeah, it's hard to figure out how people are gonna make money doing it. Yeah, there is a lot of social upheaval and a serious threat to innovation, freedom, business, and whatnot. It's your basic end-of-the-world-as-we-know-it scenario, and as a science fiction writer, end-of-the-world-as-we-know-it scenaria are my stock-in-trade… [Creative Commons is] a great project, and I'm proud to be a part of it.” (Doctorow, 2003)

Flikr¹⁴ is an online photo sharing site, started in 2004. Since then, it has grown in popularity, and is now the premier site for posting photos on the net. Flikr allows uploaders to select a variety of licenses, including Creative Commons, to apply to their work. Stewart Butterfield, the founder of Flikr, spoke of how Creative Commons works on his website:

“We allow members to select a default Creative Commons license for all photos they upload and the ability to control licensing on a photo-by-photo basis. This gives people the most flexibility. And I think it does solve a real problem for some people: they want to be able to post their photos on the web and still express their preference as to how their work gets used. This was an important step for us; as individuals and as a company we believe in and want to support free culture. Creative Commons licensing is great because it just sort of "snaps in" — the hard thinking has already been done, and even some of the technical work … The best case is really that the creativity that goes into people's contributions to Flickr goes on to spark yet more creative work by more people around the world. And then they tell two friends…” (Butterfield, 2004)

J.D. Lascia is the founder of ourmedia¹⁵, a website which allows people to upload video, music, and other forms of media for free, and to store it on their servers for ever – a repository for personal media. In 2005, it was the US finalist for the UN World Summit Awards, created to highlight the most innovative digital content from around the world. On the notion of “participatory culture”, Lascia says:

“On the legal side, the laws governing copyright and remix culture haven't kept pace with what the digital generation is doing with media today. The laws were written during the analog era for big companies with no thought given to the digital age. Now that every person with an Internet connection has the ability to be a global publisher, how do we safeguard fair use? How do we let grassroots publishers access our visual culture-including borrowing snippets from copyrighted music and movies and television shows-to comment upon and annotate those works, just as we've done for centuries in the text world?” (Lascia, 2005)

Inside the technology community, consisting of journalists, bloggers and those with connections to the Free / Open Software movements, there has also been some criticism of Creative Commons. John Dvorak (2005), a well regarded technology columnist, questions whether Creative Commons is in fact doing anything of any real importance, or whether it is merely a trendy button for bloggers and other new media types to wear. He also questions what effect it will have on the already damaged concept of fair use, for example if somebody attempts to fairly use a piece of media for commercial purposes, but it is published under a Non-Commercial license. In conclusion, he thinks it adds a layer of complexity onto a simple system, while at the same time damaging what user rights are already available.

Péter Tóth (2005), a legal council to the Hungarian musical collecting society, criticises Creative Commons from a legal standpoint. Firstly, the rights that it grants are, in his view, unenforceable because of the difficulty of finding infringers, and because the contract itself might be invalid in certain jurisdictions. Secondly, he notes a number of hidden facts which emerge when one examines the actual legal documentation instead of just the license deed: the license lasts for the term of the copyright, and more importantly, is irrevocable. His major problem is therefore that the licenses are either flexible and unenforceable, or inflexible and irrevocable.

Benjamin Hill (2005), a respected Free Software hacker, argues that even though Creative Commons claims to be built upon the Free Software movement, it does not advance an ethical position similar to it. In fact, it does not advance an ethical position at all. Free Software’s strength was to draw a line in the sand: this is free software, and this isn’t. With a plethora of different and incompatible licenses, there is no definitive way of saying “this is a Creative Commons work”, because it could mean many different things. By not taking a stand and defining what free and open culture is, Hill feels that Creative Commons has missed a chance to begin a debate on the future role of copyright. Alex Bosworth (2006), a blogger, has a similar problem regarding the large number of different licenses available. He also feels that too many people choose licensing terms which are too restrictive, not allowing derivative or commercial works. This leads to a position where creative commons licensing does not actually lead to having a commons at all. Although he is broadly supportive of the organisations aims, he feels that their methods need to be re-examined so as to actually achieve them.

Analysis

Because Creative Commons is a recent development which is only beginning to be noticed there has been less discussion outside the community in academia. There has been some debate, such as by Berry & Moss (2005), who make a more academic argument than Bosworth about the non-existence of the commons. They argue that as Creative Commons exists in the private sphere of copyright, what it produces is not therefore a commons but a collection of agreements between private individuals, with nothing really shared or owned or accountable in common – a ‘commons without commonality’. The ‘plane of organisation’ that divides culture, placing each segment under its own license conditions, actually serves as a bottleneck, as each usage must navigate the bureaucratic legalese surrounding the work. In comparison to the GPL, Creative Commons is more of a legal work than an ethical one. Because the GPL is both so restrictive and so freeing, it requires producers to make an ethical decision with far reaching consequences. On the other hand, because Creative Commons offers so many choices, including not giving up certain rights, it is consequentially an easier decision to make.

Creative Commons has been a very successful movement. Large amounts of content on the Internet has utilised its licences, including successful authors and artists, such as Cory Doctorow, mentioned above, Charles Stross¹⁶ (another science fiction author), academic Marshall Sahlins¹⁷, and musicians the Beastie Boys¹⁸ . However, as we have seen above it has attracted some criticism from the Internet community. It therefore exists in a disputed state between acceptance and merely adding to the problems surrounding copyright. On some levels, it does offer an alternative to the either-or extremes that the current copyright regime appears to allow. Authors can place their work in a state that allows others to build upon it, while at the same time retaining all other rights. While the license does exist in perpetuity, the original creator retains ownership of the work (however, they cannot revoke the licenses, although whether this will be upheld in court remains to be seen). This stance still exists inside the ideal of the individual author however, as copyright law requires this. Collective authorship is still difficult to encompass within it.

The reasons people have used Creative Commons licenses vary. Doctorow, firstly, seems to have used it party as a promotional tool, to achieve notoriety so that more people would buy his books in the long run. There is also a simple desire to be part of something new and interesting. Butterfield, on the other hand, emphasises flexibility, and making it easier for the users of his website to let their creations be used in the manner that they wish. Lascia, finally, takes note of so called “remix” culture, also noted by Creative Commons itself (Creative Commons, 2004b), and how traditional copyright systems do not necessarily promote or even allow it.

There is a big difference between ‘free culture’ and ‘free software’, even though one claims descent from the other. As we have seen in the criticism, the sheer number of Creative Commons licenses available makes it easy not to allow your work to be built upon in any meaningful fashion, which is one of the founding principles of free software. I am in agreement with the perspective suggested above that a commons without the ability to build upon each other is not a commons at all; it is just an allowance for one person to redistribute your information. Banning commercial use, as a majority of licenses seem want to do (Bosworth, 2006), further adds to the problem because a principle of the GPL is that the original creator may not interfere with how anyone chooses to use their information after it has been so licensed.

But let us accept that even though its methods may be problematic, Creative Commons believes it stands for the principle of collectivity. From this standpoint, one may ask if the idea of such a commons of creativity is either a good or a necessary one. Some have argued that, although copyright law has been corrupted in recent years, to try and create a private commons in the manner so done is not an appropriate response. The supposed goal of this, to try and create a group of authors who do not support the current ideological regime, will probably fail because they have neither the economic or political power necessary to promote changes in the law.

From a sociological perspective, the Creative Commons movement is a combination of a legalistic principle (the licenses) with an ethical standpoint (the philosophy). They are responding to the problem of culture, something that has in the past been a common good, now being made into a private good. This happened through a realignment, which we have seen in several areas over the past quarter century, of the common ideological hegemony. The hegemonic control of the media by large corporate entities, from films, books and music to news and television, via copyright and intellectual property law has given them the ability to control the discourse. Arguably, they have managed to align, in the minds of our governmental representatives, their private good with our public good.

By using some of the same methods as the GNU project, which has been widely successful in the arena of software, and applying them to culture, the Creative Commons movement hopes that enough new culture can be safeguarded from this expansion, so that everything is not locked down. Because this discourse is being played out with the language of resistance, it is occurring at the point in which the battle is perceived to be the fiercest, the point of copyright. The hegemonic ideal, that copyright is here to stay, and that it is a necessary and a good thing, restricts the discourse because one is not allowed to legitimately suggest otherwise. Creative Commons, to have any hope of existing in the mainstream, cannot question the discourse it exists in and hence its proposals have of course been framed within the concept of copyright, within the same conception of property ownership.

Conclusions

One of the foundations of an open and democratic society is the freedom to participate in its cultural life. One can conceptualise culture as being society, and the full network of cultural life being the building blocks, the symbols, of social interaction – therefore, the freedom to engage in cultural life is also the freedom to engage in social life itself. A feature of our contemporary society is a system of copyright that is protective to such an extent that it is extremely difficult to build upon anything – even the media companies have trouble in this regard. The entertainment industry, although it is vertically integrated, fears that a decentralised, communal and participatory culture will mean its death, or at the very least a change to something unrecognisable.

The information networks that support this decentralisation have come to be seen as inevitable, but industry can make it hard to produce and interact with culture. The reason that the entertainment industry has been allowed to suggest these changes to the law is that few people have knowledge of the changes occurring, or their possible effects, especially those in power. The locking down of culture has already occurred, and the people who are already engaged in wider debates have tried to prevent it, firstly through court cases (which have failed for the most part) and then through organisations such as Creative Commons. This, along with the massive illegality of file sharing networks which have anyway made a mockery of most of the copyright laws, has formed a node of resistance. On one side, we have the possibility of a participatory culture, with collective, collaborative authorship, and a much smaller role for the centralised agencies of the entertainment industry, and a larger role for the public themselves. Although Creative Commons is not collaborative by nature, it has the potential to become a site for future collaboration. On the other side, we have the copyright Panopticon’s constant monitoring of all electronic devices. The likely outcome, at this moment in time, is the majority of users not being able to utilise to the full extent the technologies they have available to them, and piracy continuing to occur in massive amounts, because there is a always a way to hack the system, and curious people will always try and find it. This is the worst of all worlds for both sides of the battle– most culture is locked up and out of the hands of the public, and rampant piracy still exists. This can only be resolved if there is a realisation in the political sphere of the danger that this scenario represents.

Underlying the ideology is a mythology of individual authorship, couched in Enlightenment and post-Enlightenment romanticism which belies that all authors draw on the culture that has gone before: from the general milieu of shared symbols, to specific works of cultural expression. The general construction of authorship rests on the idea of originality, of the thing being created having some form of unique identity. But, the law no longer even recognises originality as necessary for the purpose of establishing copyright. So therefore, if the individual author exists only in law, and if originality is not required, what does individual authorship, from which individual ownership flows, mean? Collective authorship better represents the process via which most cultural goods are created. Ironically, in a sense we already have it, in terms of corporate ownership of cultural products. However, because the individual author has become enshrined in law, a multi-authored piece of work is not necessarily owned by a collective entity who is empowered to speak for all involved; rather, all those involved must be contacted in order to make changes to a work.

All of this has not occurred because of individuals, or even individual companies, having specific designs to limit the freedom of society. It has happened because the logic of capitalism is expansionary: more and more elements must be brought inside it, so that profit can continue to be realised. Folk culture, open culture, culture not owned, in the public domain, is not compatible with this hegemonic process. Therefore, proponents of this capitalist discourse seek to influence to make it more difficult for a participatory culture to emerge. By propagating the hegemonic ideology that culture is able to be owned in the form of intellectual property and that this ownership in fact produces more and better culture, they restrict the public’s ability to debate and discuss the facts. The discourse is hence restricted. Only those who realise the restricted nature of the discourse can hope to understand the implications of the set of possible outcomes. Those who work inside the hegemonic ideal of copyright, such as Creative Commons, can only attempt to prevent the worse excesses of it occurring, not to eliminate the concept entirely. In this respect, Creative Commons and its ilk are similar to the welfare state, preventing the worst excesses of a capitalist economy while not challenging its basic premises.

It should be noted that Stallman only considered the GPL to be a first step, because he did not have the political power to challenge copyright when he first developed it. As the Internet becomes more and more pervasive in our societies, copyright will restrict our actions more and more. If we wish to be able to fully engage with our culture and society, we must acknowledge the concept of collective authorship, and build our systems of intellectual property law so that the maximum amount of creativity is generated, not just by those described as ‘authors’, but by all members of society. Creative Commons is still only a first step, because it does not challenge that basic premise that copyright is built upon, the ownership of cultural goods. A truly participatory culture can only emerge once that premise is challenged.

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