Introduction
Far from being humbug, Creative Commons (cf. sources) is a non-profit organization that has offices in San Francisco, London & Berlin and project leads around the world. Since 2002, Creative Commons has made available, for free, a range of licenses and tools for creators to make their works more readily available on terms that clearly signal what others may do with their works. In addition, Creative Commons’ technology enables the development of search engines, similar to the Creative Commons-specific search engine now included as part of Yahoo!’s advanced search (cf. sources), that permits users to search for, and find, Creative Commons-licensed content according to its license terms.

With over 17 million linkbacks to Creative Commons licenses – or 1 out of every 530 webpages (based on Yahoo!’s index) now licensed under a Creative Commons license; with the Creative Commons licensed "ported" to 21 different jurisdictions and another 12 jurisdictions actively in the process of porting, Creative Commons is an established presence that clearly speaks to the needs and desires of many people who create copyright protected works.

On 24 June 2005, Dr. Péter Benjamin Tóth published an article that appeared in the INDICARE Monitor entitled "Creative Humbug" (2005). In it, Dr. Tóth expressed his discomfort with the "fishy smell" that surrounds Creative Commons. Dr. Tóth is, among other things, legal counsel for the Hungarian musical collecting society ARTISJUS.

Creative Commons appreciates the comments and concerns expressed by Dr. Tóth and welcomes this opportunity to clear the air, so to speak, and to dispel any concern of Dr. Tóth’s, his colleagues or of any INDICARE readers that Creative Commons engages in a "whispering campaign" or a campaign of suggestions.

Creative Commons & ARTISJUS work toward similar goals
In his article, Dr. Tóth sets up an apparent opposition between the Creative Commons licensing model and collective management systems. Any such opposition is non-existent, or at least should be. Creative Commons and collective management organizations work towards similar goals – namely, representation of artists’ interests and education about copyright issues.

It is useful to have the comments of Dr. Tóth given his position as legal counsel for ARTISJUS and given the role of ARTISJUS as a representative of Hungarian author’s rights in musical and literary works as well as the rights of foreign rightsholders of public performance, mechanical reproduction and similar rights.

Creative Commons also works to serve the interests and needs of creators. Creative Commons is an enabler for creators to license their works and publish them more readily, for example, using our ccPublisher tool (cf. sources). Perhaps for similar reasons, ARTISJUS implemented an "arrangement under which members can provide royalty-free access to their works through personal homepages or a free online storage space made available by ARTISJUS" (cf. sources).

Given ARTISJUS is working towards the same goals and representing, potentially, the very same individuals as those who are likely to be Creative Commons license adopters, its comments assist Creative Commons and the general public in more fully understanding creators’ concerns and, thus, enable Creative Commons to better serve those concerns and enable the general public to respect these concerns.

One of Creative Commons’ objectives is to raise awareness of copyright issues, and in particular, how they affect individual artists and creators, as well as users. By opening up this discussion, both Dr. Tóth, ARTISJUS and Creative Commons can continue to educate creators and the general public about copyright law and, hopefully thereby, promote the dual purposes of copyright law, as expressed in the Hungarian Copyright Law: to "create and maintain an equilibrium between the interests of authors and other rightsholders, as well as users and the public at large, taking into account the requirements of education, culture, scientific research and free access to information" (Hungarian Copyright Law (Act No. LXXVI. of 1999 on Copyright)).

Creative Commons’ mission is clear & built on the flexibility inherent in copyright law but lacking in practice
Creative Commons’ mission is clearly expressed on its home page as follows:
"Creative Commons offers a flexible range of protections and freedoms for authors and artists. We have built UPON the 'all rights reserved' of traditional copyright to create a voluntary 'some rights reserved' copyright. We're a nonprofit. All of our tools are free." (emphasis added)

As is clear from this statement, Creative Commons is based on the existing system of copyright. Creative Commons’ approach of "some rights reserved" rather than being in opposition to the copyright law per se, is an alternative to two manifestations of copyright law in everyday life: (i) the default "all rights reserved" position that attaches to a copyrightable work the minute it is made, often without the creator’s knowledge; (ii) the status quo "all rights reserved" model that serves as the standard business model for most copyright-based industries to date.

The minute you take the picture, hit the "save" button on your computer, record your song, or code your website, you are creating a copyright-protected work. Many people are unaware of this when they create copyright protected works as part of their daily lives or as part of their creative activity. Consequently, they do nothing about this, even if it does not accord with their preferences as to how others may use their work, and, thus, the default level of copyright protection that attaches to their work is "all rights reserved"– in other words, they, as the copyright owner, enjoy exclusive rights to control who may copy, adapt, distribute, transmit over the Internet, publish etc. (subject to some limited exceptions) their work by operation of copyright law, immediately upon having created a work that satisfies copyright law’s requirements.

An example that illustrates this issue is the moblogging that occurred during the recent, horrific attacks on London. Several people, who were in the tube tunnels during and immediately following the attacks, including a person called Adam Stacey, took photos, using their mobile phones, of the scene before their eyes. (cf. O’Neill 2005, Alfie’s Discotastic Moblog) The minute those pictures were taken, the default "all rights reserved" level of copyright protection applied. However, in the case of Adam Stacey, he sent the image to his friend Alfie Dennen and told Alfie that the image was too important, that it had to get out there. Consequently, the image was posted to Alfie’s Discotastic Moblog under a Creative Commons Attribution License. The Creative Commons Attribution License enables anyone to copy, redistribute and adapt the work provided attribution is given to the author. Because of this license, the image quickly appeared on Sky, Associated Press and other news services and Adam, previously, just a "citizen journalist" became a nighttime news reporter.

Adam and Alfie were sufficiently aware of copyright laws to modify their initial "all rights reserved" position to a "some rights reserved" position. Creative Commons licenses gave them the ready tools to do this, without having to take the time & expense to consult a lawyer (by which time the newsworthiness of the image may have dissipated). No doubt, most other people who use their mobile camera phone are not as aware as Adam & Alfie about the copyright implications of taking a photo and/or similarly do not have access to a lawyer to draft up more reasonable license terms; consequently, without more, their creative works will be subject to the maximum copyright protection possible under applicable laws. Anyone who then comes across these works must either: assume they are subject to "all rights reserved" protection and cannot incorporate it into their website, documentary or book without first taking the time to track down the owner and asking for permission; or, if they are unaware of copyright laws, and do so, they become an unwitting infringer. This is the situation even if the creator would have been happy for them to use the work in this way.

The other way in which "all rights reserved" has become the default and standard copyright position is through established industry business models. In the recording and publishing industries, for example, record labels and publishing companies frequently take either a transfer of copyright ownership or an exclusive license of all rights from the individual creator. These companies in turn then make the music or books available – as you can see if you check out the imprint page of the books on your bookshelf or the CDs in your CD rack – with the statement "© 2005. All rights reserved."

Creative Commons licensing is different to this model. In the first place, under the Creative Commons licensing model, copyright ownership can stay with the creator. In the second place, the copyright notice that is conveyed to the public states "some rights reserved" and the Commons Deed (the human-readable code) sets out the key terms of which rights are reserved and which rights are not.

Thus, Dr. Tóth’s initial observation that "the 'some rights reserved" concept is therefore not an alternative to, but rather the very nature of classical copyright" is, in some limited respects, accurate; the Creative Commons licensing model works because it is based on copyright and thus, obviously the copyright system enables authors to license some of their rights and not others. The problem is that under default copyright rules or a general silence about the copyright status of a work and established business models, the practical application of copyright laws has trended away from flexibility, in favor of "all rights reserved." This is the issue that Creative Commons seeks to address by educating people about copyright issues – for creators by enabling them to make a choice that suits their preferences and clearly signalling what use others may or may not make of their works; for users by causing people to stop, look & think when they see a Creative Commons "some rights reserved" button as to which rights are reserved and which are not.

Creative Commons license adoption
Although Creative Commons started only three years ago, currently according to the Yahoo! Creative Commons-specific search engine, as noted above, there are over 17 million linkbacks to Creative Commons licenses and these linkbacks are spread throughout the world. In addition, as also noted above, to date, Creative Commons licenses have been "ported" (that is linguistically and legally translated suitable to a particular jurisdiction) in 21 jurisdictions around the world including such countries as Japan, Finland, South Africa, Brazil, Spain, Australia, Canada and South Korea.

Against this background, Dr. Tóth states that "[l]et there be no mistake: the CC licenses may be adapted to many jurisdictions, but they are not adopted in any jurisdiction…The state is not in a position to adapt and enforce the use of these uniform licenses." (emphasis in original)

This argument seems to be confused and is, thus, not a valid criticism. Two points may clarify the confusion. Firstly, Creative Commons is not representing, and neither does The Register article cited by Dr. Tóth in connection with his assertion (cf. Emert 2005), that a state has adapted or enforced a Creative Commons license. The adaptation work is carried out by Creative Commons project leads in each jurisdiction. For example, in Hungary, Balázs Bodó of the BUTE Center for Media Research and Education, Attila Kelènyi of Kiskapu Publishing, Dr. Ágnes Dudás from the FSF.hu Foundation for Promoting and Localizing Free Software in Hungary and Dr. Anikó Gyenge from the Legal Center for Infocommunication Issues at the Hungarian Academy of Sciences are carrying out this adaptation work. By way of further example, in Germany (the country cited in The Register article), Creative Commons worked with Professor Dr. Thomas Dreier, Ellen Euler, and Oliver Meyer at The Insitute for Information Law at the University of Karlsruhe and Institut für Rechtsfragen der Freien und Open Source Software (ifrOSS) to adapt the licenses for Germany.

Secondly, contrary to Dr. Tóth’s assertion, Creative Commons licenses have been adopted by individual creators in numerous jurisdictions around the world. For example, recent statistics indicate that over 440,000 licenses have been adopted in Germany. In Spain, over 785,100 licenses have been adopted. In total, as noted above, 17 million licenses have been adopted and applied to online works.

Creative Commons is in talks with around 70 countries around the world and thus, we and our international Commons community are working to continue expanding global license adoption in each country that "ports" Creative Commons licenses.

Understanding the Commons Deed & the Legal Code
Creative Commons licenses are expressed in three different formats: the Legal Code (lawyer-readable), the Commons Deed (human-readable) and metadata (machine readable). The Commons Deed – being designed for the general public to read & understand – merely summarizes the key components of the Legal Code to render them effective for the average, legally untrained user; it clearly explains what, essentially, a user can and cannot do with the work.

Dr. Tóth is correct that much of what is in the Legal Code is not in the Commons Deed (or the metadata) and no doubt, all legally untrained people who use the Creative Commons licenses and/or works licensed under a Creative Commons license are thankful for this. For example, neither the "Warranties, Representations & Disclaimer" clause, nor the "Limitation on Liability" clause, nor the "Severability" clause nor the "No Waiver" clause are included in the Commons Deed or the metadata. These clauses – whilst necessary to construct a legal document – do & arguably should (for the sanity of the general public) remain the preserve of lawyers and the courts to argue about and interpret. When I buy a hair-dryer or park at the parking station, I am told that there are terms, have the opportunity to review them at my leisure, and am told the key terms. Similarly, the Creative Commons Commons Deed links through to the Legal Code and people have the opportunity to review the finer points of the legal drafting, if they chose, or to simply read the key terms as expressed in the Commons Deed.

The point of Creative Commons’ three different expressions of its licenses is to facilitate greater use of copyrighted works, educate people about respect for copyright and how to comply with copyright laws and the Creative Commons licenses. The purpose of the licenses is not to educate every person to appreciate the finer points of legal contract drafting.

One unfortunate obfuscation made in Dr. Tóth’s article is his assertion that
"CC licenses are even more extortionary than an exclusive 'buy-out' contract from a global media company, where the author at least gets some money, and according to the legal regulations can revoke the license in some circumstances. To bring another example, a collecting society is obligated to give the possibility to its authors to '"take back' their rights if they are not content with the workings of the society."

Here, Dr. Tóth makes an inaccurate comparison between the Creative Commons licensing model and the model of many European collecting societies and so-called "global media company[ies]". The Creative Commons licensing model applies to an individual work at the creator’s option. It does not apply to all present and future works of the creator. Many European collecting societies require creators to transfer ownership (not even just license) of certain righs in each and every one of their present and future works to the society. Moreover, many established content companies often require ownership of or exclusive rights in present work as well as ownership of or, at least options in, future works created by an artist. Creative Commons licenses are designed to enable the artist to retain ownership of their work and make decisions about how they want to license that particular work. Applying a Creative Commons license to one work does not require application of a Creative Commons license to any other work. In this way, therefore, it is possible for a creator to experiment with the Creative Commons licensing model. One clear example of this was the WIRED CD: Rip. Sample. Mash. Share. which contained tracks from 16 different artists including the Beastie Boys, Chuck D, Gilberto Gil, Thievery Corporation, Zap Mama and David Byrne all released under one of the Creative Commons Sampling licenses. (cf. sources) By releasing one track under a Creative Commons license, these artists did not thereby become bound to release any of their previous or future tracks under a Creative Commons license.

Moreover, applying a Creative Commons license to a particular work does not "lock down" that particular work to Creative Commons licensing exclusive of any other form of licensing with respect to that work. Creative Commons licenses are "non-exclusive"; thus, an artist can enter into different licenses, including revenue-generating licenses, in relation to a Creative Commons licensed work.

The history of Creative Commons license adoption to date demonstrates that there are three main ways in which an artist can earn income in connection with Creative Commons licenses.

Firstly, Creative Commons licenses can be applied to a work in a particular format to encourage awareness of the work and, thus, sales of the work in a different format. One example of this occurs in the publishing industry when authors and/or publishers release a book online under a Creative Commons license whilst selling hardcopies of the book.

One notable example is (unsurprisingly) Creative Commons’ Chairman & CEO Lawrence Lessig who released his book "Free Culture" under a Creative Commons Attribution-NonCommercial license. (cf. sources) The book is now in its third print run.

Another example is Kembrew McLeod’s book "Freedom of Expression®", which was also released online in PDF format under a Creative Commons Attribution license and sold in hardcopy format. (cf. sources) By making it freely available online, Kembrew’s book was able to circulate well beyond its hardcopy distribution in the United States and Japan, receiving responses and conference speaking invitations from people who shared research interests in various European, Asian, and African countries. In addition, the publicity surrounding his online Creative Commons release of the book generated hardcopy sales through Amazon.com.

A further example in the publishing arena is the open access law publishing program, recently launched as part of Creative Commons’ Science Commons publishing project. (cf. sources) The publishing model adopted by the program and signed on to by, to date, 23 prominent US, English & Canadian law journals, enables the author to: retain their copyright in their paper and grant the publisher a limited-term, exclusive license for commercial publication whilst also making the paper available to the public under a, for example, Creative Commons Attribution-NonCommercial-NoDerivatives license. In this way, the commercial publishing model of the journals is not disturbed but authors and the general public from the greater availability of the author’s writings.

In the music world, Magnatune is an innovative Internet record label that started in 2002. (cf. sources) Magnatune releases streams and downloads of its artists under a Creative Commons Attribution-NonCommercial-ShareAlike license but sells their albums on CDs.

Secondly, a Creative Commons license can be applied to a work to signal to the general public the terms on which they may use the work and then interested parties may enter into a commercial side-deal in relation to the work. By reason of the Creative Commons’ metadata and Creative Commons-specific search engines such as that now incorporated in Yahoo!’s search engine, Creative Commons licensed work can be more readily located by persons interested in making commercial uses of their work.

Thus, by licensing content within the Creative Commons network, access to a person’s creativity can be substantially increased. Business 2.0, for example, reported on the story of a Slovakian artist who used Creative Commons licenses to make his music available. That then translated into two commercial contracts with U.S. companies to use his music in their projects (cf. Raskin 2004).

Thirdly, Creative Commons licensed works can advertise a creator’s talents and secure them a commercial arrangement for different or future works. One such example is that of "MinusKelvin", a physics and calculus teacher by day, a composer by night. (cf. MinusKelvin 2005) He makes tracks available to podcasters using Creative Commons licenses and recently joined the ccMixter site. ccMixter is a site created by Creative Commons that enables people to post their music to the site under Creative Commons licenses that permit remixing. People can then remix the tracks and upload their remixes. Runoff Records, Inc. signed MinusKelvin after discovering him on ccMixter. Together with another ccMixter musician, Pat Chilla, MinusKelvin will now be doing the music for the next three seasons of America's Next Top Model.

Thus, Dr. Tóth asks "[w]hy should anyone invest in works that are already widely available for free?" The response to that question, as the above examples illustrate, is that the reasons are multiple. Digital technologies make it easier, cheaper & quicker than in the analogue world for individual consumers to become a producer of high-quality material; so professional, indeed, that there have been reports of photograph printing services refusing to print personal photos of members of the general public for fear that they are the work of professional photographers and even, in some instances refusing to release people’s personal happy snaps back to them without a signed copyright release. (cf. Seltzer 2005) Just as digital technologies make us all professional creators, so too do they enable people to advertise their works and/or their talent, share their creativity more easily and more readily, and clearly signal to members of the pubic that they welcome the use and reuse of their work.

Enforceability of Creative Commons licenses
Finally, license enforcement – a topic close to many lawyers’ hearts! Dr. Tóth queries the practical enforceability of the Creative Commons licenses and suggests that the issue of enforcement is somehow more difficult under the Creative Commons licensing model, than under a collecting society or "all rights reserved" model.

This contention is without merit. The issue of knowing when a person has violated a license term applies equally in relation to a Creative Commons licensed work as much as it does to a work licensed under any other model. Once you sell a book or allow someone to download a track from a site, how do you know that they will use it consistent with the license terms and/or any technological restrictions? This is a challenge that all creators and organizations that assist them such as Creative Commons and ARTISJUS – face. If artists and the organizations that assist them work together we can attempt to solve this problem by teaching people more about copyright law and why & how to respect.

In addition, Dr. Tóth claims that because the generic license originated in the United States, the local licenses adapted to the jurisdictions of Germany, France, Spain, Japan etc. will not be sufficiently tailored to the local laws of those jurisdictions. Somehow, because CC-HQ has final approval over the final draft of the jurisdiction-specific licenses, the licenses will be invalid under local laws. Leaving to one side the obvious factual point of distinction, namely, that the actual location of the office that engages in final review of the licenses is in Berlin, Germany, Dr. Tóth is clearly insufficiently familiar with our license finalization process.

Everything about Creative Commons involves community involvement and community feedback. This is nowhere more apparent than in the international community, especially given the expertise that exists within the international Creative Commons-minded community. The license "porting" process involves our local project lead preparing the first draft of the license, linguistically and legally adapted for the specific jurisdiction, this draft is then circulated on an e-mail discussion list of interested participants in that jurisdiction. These list participants debate the various aspects of the license, in particular as it pertains to their jurisdiction. These comments are then incorporated into a further draft, which is again submitted for community review. A final draft is then prepared and CC-HQ’s Berlin office confirms license interoperability and otherwise assists with drafting issues that may have arisen on the country discussion list. The role of CC-HQ’s Berlin office is simply one of assistance and facilitation. At all times, substantive review and amendment of the licenses to comport to local legal requirements is undertaken by experts in that jurisdiction.

No doubt, the Creative Commons license will one day be tested in a court of law, similar to the recent case before a Munich court involving the GNU-GPL license (cf. Shankland) and, when that situation occurs, we will all observe the enforceability of the license for the particular dispute in question. Until this day, however, and most likely even after this day, there is no basis upon which to claim that Creative Commons licenses are unenforceable. Every member of our community is working to ensure that they are locally enforceable in anticipation of when a court date is set, and also, that the licenses properly represent and respond to the needs of artists.

For Dr. Tóth to imply that because Creative Commons does not provide legal advice and enforcement assistance, Creative Commons "simply shrugs their shoulders" when it comes to helping people enforce their rights, flies in the face of reality. We receive countless queries and requests for assistance and, to the extent we are able to locate a suitable volunteer legal service in the inquirer’s jurisdiction, we direct them to that service. Indeed, to the extent that ARTISJUS provides pro bono legal assistance to artists, Creative Commons looks forward to working with ARTISJUS in this regard.

Bottom line
Creative Commons welcomes the debate and feedback about our licenses. Creative Commons constantly strives to develop licenses and tools that are adapted to and serve the needs of creators and users of copyright works. Because the Creative Commons licensing model is different to the established business models and the default "all rights reserved" copyright model that has existed in practice historically, Creative Commons often engenders debate, concern and, sometime, confusion as to what Creative Commons does and how its licenses and tools operate. Thus, Creative Commons appreciates the opportunity to try to clarify these issues but, more importantly, the opportunity to generate discussion of these issues. Particularly, in the case of ARTISJUS and its fellow collecting societies, a common ground exists on which to explore these issues because all organizations serve similar interest groups.

Ultimately, however, such discussion serves an incredibly useful purpose of holding up the mirror and enabling us all to consider and opine on how we can all work towards making copyright law better fulfil its objectives.

Sources

Acknowledgement: This article was prepared with the invaluable assistance of Attila Kelènyi attila@kiskapu.hu, part of the Creative Commons Hungary team, and builds on the comments submitted by Balázs Bodó bodo@axelero.hu, also part of the Creative Commons Hungary team, directly in response to Dr. Tóth’s article (cf. http://www.indicare.org/tiki-read_article.php?articleId=118#comments).

About the author: Mia Garlick is the General Counsel of Creative Commons Corporation. Before joining Creative Commons, Mia worked for several years in private practice as an intellectual property attorney in Sydney, Australia, and Silicon Valley, US. She can be contacted via e-mail at: mia@creativecommons.org.

Status: first posted 27/07/05; included in INDICARE Monitor Vol. 2, No. 5, 29 July 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=124