Introduction

This past summer, the Common Information Environment (CIE) group – a collection of public sector organizations that work together to provide information services to UK citizens – sponsored a study into the applicability of Creative Commons (CC) licenses to UK public sector organizations. Under this study, Intrallect and the AHRC Research Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh examined “the potential for Creative Commons licenses to clarify and simplify the process of making digital resources available for re-use”. The public sector organizations concentrated on in the study included museums, libraries, and teachers from all levels of education. Any public sector body, however, could apply the information in this report (and in this article) with, of course, taking into consideration laws such as the recent Directive on the re-use of public sector information (Directive 2003/98/EC).

Copyright issues can often hinder sharing between organizations and by end-users. Take, for example, a teacher who wants to create a set of handouts and a PowerPoint for a class on 20th century Spanish art. There are, perhaps, 10 other teachers that have taught this same class. In order to assist in creating her class, this teacher would like to build on some of these other materials and to include some pictures of the artwork. Copyright law states that she will need to get permission from each author – which means contacting each artist and teacher (and possibly their institution) and getting written permission to use the materials. This process of asking permission can be very time-consuming and most teachers will either use the materials without asking (infringement) or not use the materials at all. This creates a major stumbling block to an organization aimed at literally creating a “Common Information Environment” where information can be freely shared. Licenses such as the ones offered by Creative Commons are seen as potentially solving these problems essentially by labelling the content as “shareable” and therefore removing the need for end-users to go through the tedious process of asking permission.

Through stakeholder workshops conducted as part of the study it quickly emerged that Technical Protection Measures (TPMs) may be both desirable and potentially a problem under the terms of the Creative Commons suite of licenses. At first blush the two may seem too incompatible at all to work together: CC encourages openly and freely sharing material while some see TPMs as restricting sharing. The key to resolving this superficial conflict resides in realizing the true scope of CC licenses and TPMs. Creative Commons licenses, do not simply allow a free-for-all among users. There are certain limits and responsibilities on behalf of the user, such as non-commercial use restrictions in the CC-NC license or attribution requirements. As any reader of the INDICARE Monitor will surely know, TPMs don’t mean total control. Consumer perception, however, often equates TPMs with severe restrictions. Thus some clarification of how CC licenses and TPMs can work together is in order.

This article first takes a look at the problems and needs of end-users. This section identifies possible areas where TPMs may be a solution to some of the misapprehensions that organizations may have in using Creative Commons licenses. The next section then looks at the license itself to see the possible TPMs that organizations could use and still remain compliant with the license. The next two sections deal with two different kinds of TPMs, those that deal with access to the work versus those that deal with the work itself. The article then briefly concludes with a word of caution about some of the solutions in this area.

Problems and needs of end-users

Several questions and problems arose during the course of the study where technological measures were identified as being either useful or essential to end-users in order for them to feel comfortable with using Creative Commons licenses. These areas primarily concerned:

  • Authenticated Environments – Many participants were interested in placing CC-licensed materials in such authenticated environments as intranets, virtual learning environments, and digital repositories. The practical difficulties of separating out CC-licensed material from restricted access material proved the most major stumbling block when considering these licenses. If the licenses prohibit use of the material behind a password (authentication), then most institutions would not use Creative Commons simply because of the extra expense of maintaining a separate access system (website, database, etc).
  • A desire to track use of the work – Many groups would like to see how their works are being used both for grant purposes, such as to report back to funding organizations on the effectiveness of a project, and to be able to assess their own effectiveness.
  • Preventing commercial use – There was a significant interest (67%) (Barker et. al. 2005, p. 11) in the Non-Commercial license option and thus an interest in ways to maintain this restriction.
  • Guaranteeing integrity of the work – Many participants were concerned about the reputational harm caused by endusers altering their works in unacceptable ways. A way to guarantee the integrity of the work was seen as desirable in order to prevent this harm

The last three areas deal with technological measures directly affecting the works, while the first area only considers measures that control access to the area where the work is stored. The next step is to examine the licenses themselves to see if these four areas may be used within the terms of the license.

Terms in the Creative Commons

The Creative Commons movement started in the United States and has evolved into a worldwide phenomenon. The goal of the licenses is to provide a simple way for users to allow others to share their works in a “some rights reserved” environment. Instead of hiring a copyright lawyer or going through the tedious process of drafting their own license, users can go to one of the Creative Commons websites and click through various options to arrive at a license. A wealth of information is available on their site and within the CIE report about the different options available, and readers are encouraged to find out more through these sources.

Despite the different options, such as the Non-Commercial restriction mentioned above, each license is made up of a set of “baseline rights” that are a part of every license. The language addressing Technical Protection Measures is in this section. The first question is to consider what TPMs the Creative Commons licenses prohibit. In regards to TPMs, the generic license states:

4. Restrictions *** a. *** You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. (2.5 BY)

Jurisdiction specific licenses such as the England and Wales licenses or the German licenses are ported from the generic license; therefore the generic license is the focus of this article. The emphasized portion quoted above demonstrates that CC licenses only prohibit TPMs that change the rights granted by the license.

Because these licenses only bar TPMs that alter or restrict the terms of the license, the next step is to pinpoint the rights are granted by the license. The baseline rights also contain the following grant to the end-user:

3. License Grant. ***
a. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;
b. to create and reproduce Derivative Works;
c. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;
d. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works. (2.5 BY)

Obviously the sections granting derivative work rights are altered and new language is added in licenses with the “No Derivative” option. Besides the above grants, there are additional restrictions, such as “keep[ing] intact all copyright notices” and requiring attribution of the work. When these two parts of the license are read together, it seems that there is significant room for TPMs to work in the Creative Commons environment. The CC website even mentions that TPMs can be used with the licenses (FAQ, 5.12 and 5.13).

Authenticated environments

Password protected or otherwise authenticated environments are probably the easiest area to address when examining TPMs and Creative Commons. Examples include intranets, virtual learning environments (VLE) (online classes), and digital repositories (such as for teaching materials). These environments need to be authenticated because they require access to copyright restricted material, such as licensed textbook material in a VLE. These passwords are contemplated only to gain access to the storage area of the work and not placed on the work itself. Placing a password on the work itself, such as can be done in Adobe when creating *.pdf files, would be both unnecessary and would violate the terms of the license by restricting the ability to reproduce and distribute the work.

Authentication schemes are based more on practical necessity and not on a desire to restrict certain uses of the works. As a result, the institutions involved do not have a desire to prohibit any of the granted rights inside or outside of the password system. End-users would still be free to distribute or reproduce the work both inside and outside the password- protected domain. Clearly, any attempt to restrict them from taking CC-licensed work outside of the authenticated environment would contravene the rights granted by the license (distribution, reproduction, etc.). Based on this, Creative Commons licenses do not restrict institutions from placing materials inside of an authenticated environment. Care would have to be taken by organizations using password schemes that they do not include terms in the contract for registration that violate the CC license (such as forbidding distribution outside of the system) or in the case of Non-Commercial CC licenses try to make commercial use of the user registration or use data gathered within the system.

“Direct” TPMs

Technical Protection Measures that cover the three other areas mentioned – guaranteeing integrity, tracking use, and preventing commercial use – all involve TPMs attached to the actual works themselves. Again, using Adobe as an example, users could create *.pdf files that prohibit printing or copying portions of the work, but features such as these would plainly violate the terms of the license. Exactly what types of TPMs comply with CC licenses is outside the scope of this article, but one in particular is worth mentioning: Watermarking.

Watermarking, like the password protection schemes mentioned, is the least invasive method and thus most likely to comport both philosophically and legally with the Creative Commons family of licenses. Simply placing some information in the work would not hamper the ability to copy and distribute the work. They would perhaps be most useful for those using the “No Derivative” CC license. Watermarking could allow for users to authenticate the integrity of the content and for content creators to track use. The use information can then be passed on to funding agencies or used internally in order to assess the usefulness of the licenses in encouraging re-use. These watermarks could also help prevent commercial use for organizations using the non-commercial (NC) option.

TPMs placed directly on the works tread a fine line between allowing the freedoms granted under the license and the law (such as fair use/fair dealing) and the goal of limiting use of the work through technical means. Creative Commons as an organization takes a stance against using these technologies because they believe that this line is too fine. From their website:

Why don’t we use technology to enforce rights? ... Perhaps the most familiar is the fact that technology cannot protect freedoms such as “fair use.” ... [M]ore importantly, we believe, technological enforcement burdens unplanned creative reuse of creative work. ... [W]e ... are concerned that the ecology for creativity will be stifled by the pervasive use of technology to “manage” rights. ...[W]e prefer [copyrights] be respected the old fashioned way - by people acting to respect the - freedoms, and limits, chosen by the author and enforced by the law. (FAQ 5.12)

Use of TPMs fits more into a “rights heavy” framework, whereas CC tries to make works easily and readily accessible to users. Organizations need to assess their goals for use of CC licenses and the possible impact of TPMs on re-use by the end-user before implementing any TPM.

Bottom line

Public sector organizations have different needs than individual authors. Thus, they may have more of a desire to use TPMs when making their content freely available. Creative Commons offers a host of licenses that allow the use of TPMs and make content freely available and therefore are an option. Certainly no matter what an organization decides about whether to use TPMs on the CC-licensed work within their control, great care will have to be taken so as to make sure that the license grants are respected. But rather than detracting from Creative Commons licenses, TPMs could enhance the attractiveness to a variety of public sector organizations, including schools, museums, and libraries.

Sources

Acknowledgement

Part of this article has been previously published as an appendix to Barker et al. (2005). About the author: Jordan S. Hatcher, JD recently spent the past year at the AHRC Research Centre for Studies in IP and IT Law at the University of Edinburgh. While there, he participated in the CIE report that is the subject of this article. He currently resides in Austin, Texas, where, among other things, he serves as a board member and officer for EFF-Austin, a Texas-oriented cyber-liberties group. He can be contacted at jordan _at_ twitchgamer dot net and at his corner of the web, http://twitchgamer.net

Status: first posted 19/10/05; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=146