"Copyright and Open Content Licensing: the role of the Creative Commons licences", presented by Professor Anne Fitzgerald as seminar 1 of 4 in the Creative Commons and the Digital Economy series, 2012. For full details see event page at http://creativecommons.org.au/events/digitaleconomy

1. Professor Anne Fitzgerald
Queensland University of Technology
Creative Commons and the Digital Economy
Seminar 1 of 4
5 October 2012

2. This session …
 Copyright
 What Creative Commons (CC) is
 Overview of how CC is being used

3. Copyright
 Governed by the Copyright Act (Cth)
 No registration required
 Copyright exists automatically once criteria in the Act
are satisfied
 Copyright protects original expression
 Not ideas, information or facts
 But the form in which those ideas, information or facts
are expressed

4. Blogs, books, articles, essays…
(literary works, published editions of works)
Generic 2.0 ‘_MG_0318’ by Zitona, http://www.flickr.com/photos/zitona/5021203226/

5. Photographs, paintings,
images, sculptures… (artistic works)
Generic 2.0 ‘take the old machine’ by Angelo González, http://www.flickr.com/photos/21251150@N04/5291456294

6. Music, sound recordings,
radio broadcasts…
Generic 2.0 ‘I Giovani e la Musica’ by Super UbO, http://www.flickr.com/photos/14443853@N07/5362778675

7. Films, Videos, Theatre,
TV broadcasts… (cinematograph films, dramatical works, television broadcasts)
Generic 2.0 ‘Apollo 11 Video Restoration Press Conference / Newseum’ by NASA Goddard Space Flight Centre, http://www.flickr.com/photos/24662369@N07/3726614425

8. Copyright as a bundle of
exclusive rights
 For example, for literary, dramatic and musical works
the rights are to:
 reproduce in material form
 publish
 publicly perform
 communicate to the public in electronic form
 transmit;
 make available
 make an adaptation or translation
 control rental, where work is a computer program or is
reproduced in a sound recording: s 31(1)

9. Copyright in the digital
environment
 Broad scope of copyright law extended in the digital
environment
 Broader range of materials subject to copyright (eg computer
programs)
 Broader rights (eg right to communicate electronically to the
public)
 When we use digital technology, we automatically
reproduce content and thereby enter the copyright “zone”,
because digital technology needs to reproduce material so
it can be played, run or even viewed.
 Copyright has been further extended to protect
 Technological Protection Measures (TPMs) (eg
encryption/anti-copying devices) applied to control access or
copying;
 Electronic Rights Management Information (ERMI)

10. Unless the law provides otherwise…
Fair dealing
research or study (s40)
criticism or review (s41)
parody or satire (s41A)
reporting of news (s42)
legal advice (s43)
Generic 2.0 That time of year again… by Etwood, http://flickr.com/photos/etwood/231364920

11. But is the dealing “fair”?
 "(i) Fair dealing involves questions of degree and
impression; it is to be judged by the criterion of a fair
minded and honest person, and is an abstract concept;
 (ii) Fairness is to be judged objectively in relation to
the relevant purpose, that is to say, the purpose of
criticism or review or the purpose of reporting news;
in short, it must be fair and genuine for the relevant
purpose …”
 TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002]
FCAFC 146 (22 May 2002), [98] per Hely J

12. Copyright
In a nutshell…
 copyright automatically applies to a lot of material
 exclusive rights of the copyright owner are very broad
 remedies are strong and enforcement is effective
(through civil and criminal actions)
 limited exceptions are available
Which means that.....
 the consequences of infringement will deter use/reuse
unless it is clear that the use is permitted

13. Copyright
 General rule = You need permission/licence to
exercise exclusive economic rights of copyright owner
unless the law provides otherwise
 express permission to use should be obtained
 importance of clear statement of permitted uses
 any other rights/obligations (other than copyright) also
need to be considered

14. ©
all rights reserved

15. Creative Commons

16. What is Creative Commons?
 a standardised system for licensing the use of
copyright materials
 a suite of 6 standardised licences
 available in 3 forms: plain english (summary); legal code
and machine-readable code
 Each licence grants baseline permissions to users to
use copyright material
 that is, to copy, publish, distribute in digital form,
publicly perform
 whether the whole or a substantial part of it
 on specified, standardised core conditions

17. Creative Commons IS NOT…
 anti-copyright
Creative Commons IS…
 A copyright licence (permission)
 Cannot exist without copyright
 A new way of managing copyright
 Free for everyone to use

18. Copyright licensing –
traditional practice
 All (or most) rights reserved
 Requires prior permission from copyright owner unless
within an exception to owner’s rights (e.g. fair dealing)
under the Copyright Act
 Negotiating terms is cumbersome, time consuming,
expensive – inefficiency means high transaction costs
 Has led to multiple non-standard licences
 Problem of “orphan” works – no identifiable copyright
owner from whom permission may be obtained
 Arose from pre-internet era - not geared to the immediate
and global nature of the internet

19. Copyright licensing – with CC licences
 Some rights only reserved
 Relatively short, simplified, standardised licences which
provide permission in advance
 Do not contain detailed provisions covering all relevant
aspects of the law
 Must be read in the context of copyright law (legislation &
judgments) and often other relevant bodies of law (e.g.
private international law – “jurisdictional” issues and
applicable law)
 Also have to be read in context of other relevant
“information” laws notably privacy (data protection),
security, and interception of communications
(telecommunications) - See Chang v. Virgin Mobile USA,
LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)

20. CC is a copyright-based system of
licences or “permissions”
 Copyright law gives copyright owners the rights to authorise
others to use their materials –permission to do specific acts
 Authorisation or permission is granted in licences
 Non-exclusive licences can generally be written or unwritten,
explicit or implied from the circumstances
 Some permissions have been generalised and codified as
exceptions in the Copyright Act e.g. fair dealing
 Not yet possible to codify the permissions for many kinds of uses
of copyright material – particularly the case for public sector
materials
 The CC licences provide a simple way of granting permission to
use copyright materials, to overcome uncertainty – but do not
cover all possible kinds of permissions – other kinds of
permissions will have to be negotiated

21. CC licences are based on copyright
 Preamble:
 THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE
TERMS OF THIS CREATIVE COMMONS PUBLIC LICENCE
("LICENCE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR
OTHER APPLICABLE LAW.
 Definitions
 ‘"Work" means the material (including any work or other subject
matter) protected by copyright which is offered under the terms of this
Licence. This may include (without limitation) a literary, dramatic,
musical or artistic work; a sound recording or cinematograph film; a
published edition of a literary, dramatic, musical or artistic work; or a
television or sound broadcast’
 Includes:
 Copyright – economic rights
 Performers’ ownership rights in recordings
 ‘Moral rights remain unaffected to the extent they are recognised and
nonwaivable at law.’

22. Rethinking the Commons
 “Public domain” traditionally referred to materials not
subject to copyright protection because
 copyright had expired; or
 the materials did not quality for copyright protection.
 Concept of “public domain” has been recast more broadly
to mean ‘open’ knowledge and content
 insisting on no rights constrains thinking about public domain
 public domain is not just a no rights “wasteland [or] dump on the
outskirts of respectable culture” (Bollier, “Viral Spiral”)
 something of value in its own right – open knowledge and content
that can be accessed, reused and distributed
 encompasses materials that are copyright-protected and made
available for access and reuse under open source software and open
content licences

23. Free and Open Source software/open content
concepts
 Openness (access/use/reuse) has to be structured / constructed - it
does not happen by default - requires copyright and other
interests to be actively managed to ensure the desired level of
“openness” is achieved
 For intangibles / digital materials, law provides the means of
structuring openness
 Creative Commons draws on Richard Stallman’s insights into how
copyright can be used to ensure that freely distributed software source
code remains open to other software coders (FOSS, GNU GPL); David
Wiley’s thinking around Open Content; and Elinor Ostrom’s work on
regulation of commons
 Absence of legal rights means just that (nothing) – if legal rights do not
exist, the only control is through lock up (secrecy) or lock down
(technological locks) – counterproductive to achieving openness

24. Licence combinations

25. Baseline permissions
 Fundamental baseline rights granted by all CC
licences:
 Reproduce
 Distribute
 Publicly perform
 Additional baseline permission granted in four of the
six CC licences to create derivative works and
 Reproduce
 Distribute
 Publicly perform
the derivative work

26. CC Core Conditions of use
Attribution (BY) – attribute the author, and no false attribution
[Mandatory]
Non Commercial (NC) – no “commercial use” (as defined)
No Derivatives (ND) – no changes allowed to original work
Share Alike (SA) – changes allowed, but new work is to be
distributed under the same licence as the original work
* ND and SA cannot be used together

27. Human-readable summary

28. “Legal Code”

29. Machine-readable code
http://creativecommons.org/choose/

30. CC operates as a direct licence,
from copyright owner to user

31. Attribution (BY)

32. Attribution (BY)
 Copyright notice - Keep notices that refer to the
Licence or Disclaimers
 Name of author and other Attribution parties
 Source and Title of the work
 Licence URL/hyperlink
 In a Derivative Work, identify the changes made to the
original
 No suggestion of endorsement
 “In a manner reasonable to the medium you are using”

33. Attribution (BY)

34. http://creativecommons.org/choose/

36. Non Commercial (NC)

37. Non Commercial (NC)
 “Commercial” defined as meaning “primarily intended
for or directed towards commercial advantage or
private monetary compensation”

38. Meaning of “Non Commercial”
 CC has released guidelines and done a study on the
meaning of this term.
 there are some clear cases of what is non-commercial
(private and domestic) use some clear cases of
commercial use (corporations using the material to
generate revenue)
 See: Defining “Noncommercial”: A Study of How the
Online Population Understands “Noncommercial Use,
http://wiki.creativecommons.org/Defining_Noncomm
ercial

39. Adam Curry v Audax (2006)
 Curry uploaded photos to Flickr under a CC BY NC SA
licence
 The photos from Flickr were reproduced in a magazine
sold commercially in The Netherlands
 Court held there was no permission to use the photos -
as this was commercial use – only Non Commercial
was licensed

40. No Derivative Works (ND)

41. No Derivative Works (ND)
 “Derivative Work" means material in any form that is
created by editing, modifying or adapting the Work, a
substantial part of the Work, or the Work and other
pre-existing works.

42. No Derivative Works (ND)
 Derivative Works may include a translation,
adaptation, musical arrangement, dramatisation,
motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other
form in which the Work may be transformed or
adapted…
 …except that a Collection will not be considered a
Derivative Work for the purpose of this Licence.

43. Share Alike (SA)

44. Share Alike (SA)
 Clause 4B(a) Attribution-Share Alike 3.0 Australia:
 You may only Distribute or publicly perform a
Derivative Work if You apply one of the following
licences to it:
 i) this Licence;
 ii) a later version of this Licence with the same Licence
Elements (such as Attribution-ShareAlike 4.0 Australia); or
 iii) a Creative Commons Unported licence or a licence from
another jurisdiction (either this or a later version) that has the
same Licence Elements; or
 iv) a Creative Commons Compatible Licence. (* note this last
option is not available in CC BY NC SA 3.0 Australia)

45. How do people use CC?
 Licensing out: use CC on copyright materials you create
 enable others to find your material online through using the standard
search engines; give permission to others to lawfully use your material
(eg copy, on-distribute, post to a website, value add, mashup
 e.g.
 Repositories – Wikipedia, Flickr, YouTube
 Institutions/Organisations – ABC, Al Jazeera
 Licensing in: use copyright materials created by others that
are licensed under CC
 enable you to find their material online through using the standard
search engines; give permission to you to lawfully use their material eg
copy, on-distribute, post to a website, value add, mashup e.g.
 use of CC licensing scream in Children of Men (a Hollywood film)
 students using CC material in their projects
 In both cases, the scope of re-use will depend on which CC licence
selected

46. CC BY SA
Most of Wikipedia's text and many of its images are dual-
licensed under the Creative Commons Attribution-
Sharealike 3.0 Unported License (CC-BY-SA) and the GNU
Free Documentation License (GFDL)
The small print:
“ Text is available under the Creative Commons
Attribution-Share Alike License; additional terms
may apply. See Terms of Use for details ....”
Information for text contributors to Wikimedia
projects
To grow the commons of free knowledge and free culture,
all users contributing to Wikimedia projects are required
to grant broad permissions to the general public to re-
distribute and re-use their contributions freely, as long as
the use is attributed and the same freedom to re-use and
re-distribute applies to any derivative works. Therefore,
for any text you hold the copyright to, by
submitting it, you agree to license it under the
Creative Commons Attribution-ShareAlike 3.0
Unported License. For compatibility reasons, you are
also required to license it under the GNU Free
Documentation License. Re-users can choose the license(s)
they wish to comply with. Please note that these licenses
do allow commercial uses of your contributions,
as long as such uses are compliant with the
terms.
As an author, you agree to be attributed in any of the
following fashions: a) through a hyperlink (where possible)
or URL to the article or articles you contributed to, b)
through a hyperlink (where possible) or URL to an
alternative, stable online copy which is freely accessible,
which conforms with the license, and which provides credit
to the authors in a manner equivalent to the credit given
on this website, or c) through a list of all authors. (Any list
of authors may be filtered to exclude very small or
irrelevant contributions.)

49. Trade Adjustment Assistance Community College
and Career Training Grant Program (TAACCCT):
US $2 billion in funding provided under federal education
fund to create OER resources for use in community colleges
P062311PS-0339 by The White House (US Government Work) http://www.flickr.com/photos/whitehouse/5937200216

50. AUSTRALIA

51. AUSTRALIA

53.  2010 Federal Budget
Papers licensed under CC
Attribution 2.5
Australia
 2011 and 2012 Federal
Budget Papers under CC
Attribution 3.0 Australia

57.  In 2009 the Al Jazeera Network launched a repository
of broadcast quality footage under a variety of CC
licences
 Initial focus was on footage of the conflict in Gaza,
which was released under a CC BY licence.
 The aim of allowing the broadest possible reuse
(including commercial use) was to make people more
aware of these issues as well as profiling the Al Jazeera
Network throughout the world.
 See Al Jazeera CC Repository at http://cc.aljazeera.net/

58. ABC “80 Days that Changed our Lives”
 To celebrate ABC’s 80th anniversary , ABC released 22 files capturing
historic moments on Wikimedia under CC BY-SA
 first collection of broadcast “packaged” footage released to Wikimedia
Commons under a free license

59.  http://en.wikipedia.org/wiki/History_of_the_Internet

60.  May 2012 – 3 months on
 http://toolserver.org/~magnus/baglama.php?group=Files+from+the+Australia
n+Broadcasting+Corporation&date=201205

61. Wikimedia
 “What is Wikimedia Commons?
 Wikimedia Commons is a media file repository making available public domain and
freely-licensed educational media content (images, sound and video clips) to everyone, in
their own language. It acts as a common repository for the various projects of the
Wikimedia Foundation, …
 Launched on 7 September 2004, Wikimedia Commons hit the 1,000,000 uploaded media
file milestone on 30 November 2006 and currently contains 13,546,116 files and 106,660
media collections. …
 Unlike traditional media repositories, Wikimedia Commons is free. Everyone is allowed to
copy, use and modify any files here freely as long as they follow the terms specified by the
author; this often means crediting the source and author(s) appropriately and releasing
copies/improvements under the same freedom to others. The license conditions of each
individual media file can be found on their description page. The Wikimedia Commons
database itself and the texts in it are licensed under the Creative Commons
Attribution/Share-Alike License. More information on re-use can be found at
Commons:Reusing content outside Wikimedia and Commons:First steps/Reuse.”
 http://commons.wikimedia.org/wiki/Commons:Welcome

62. Legal Validity of Licences
Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)
“Copyright holders who engage in open source
licensing have the right to control the modification
and distribution of copyrighted material. ….
The choice to exact consideration in the form of
compliance with the open source requirements of
disclosure and explanation of changes, rather than as
a dollar denominated fee, is entitled to no less legal
recognition.”

63. Why use CC licences?
 Other standardised licences e.g. UK Open Government Licence
(OGL) are not fully internationally recognised
 Permits international platforms (collaborations and
contributions across various sectors)
 No other standardised licence has an equally supportive and
viable central organisation
 CC applies to all government and non-government copyright
material (except software)
 CC uses icons (which have gained full international recognition
and which are not language specific)
 CC’s licence metadata / digital code is embedded, making it
machine-readable, searchable & retrievable
 CC provides for a clear statement about the source of the data
(attribution/provenance) – increased user confidence

64. CC Australia
 More information at www.creativecommons.org.au
 Twitter: @ccAustralia
 Facebook: http://www.facebook.com/ccAustralia
 Professor Anne Fitzgerald
 Publications:
http://eprints.qut.edu.au/view/person/Fitzgerald,_An
ne.html
 Twitter: @AnneMFitzgerald