INDICARE: How would you describe the basic ideas behind Creative Commons in a few words?

Th. Dreier: In public, there is currently awareness that copyright is constantly extended in order to encounter the perceived loss of control over copyrighted material which is due to digital and networking technology. Moreover, technical protection measures are used to extend control over the exploitation of digital goods to maximise profits – intruding ever further into the private sphere, restricting use and preventing people from making creative use of them. There is a wish to counteract these developments with the help of Creative Commons seeking to ensure a pool of goods, i.e. a growing number of creative works, from which anyone can essentially serve themselves.

INDICARE: Well, an increase of control and protection measures is part of the normal historical development of information technologies…

Th. Dreier: Yes, that is the normal historical development. CC mainly responds to the needs of those who consciously make use of someone else's copyrighted material in an artistic way. It started with what is called appropriation art, where the artistic statement in making an exact copy of a famous work and signing it as one’s own consists in drawing our attention to the strange concept and the aura of “the original”. Increasingly, we have people who make collages from existing material, for example film sequences. Those people consistently intrude with each snippet they use into existing rights. In these cases, licensing is often impossible because film copyright owners, Hollywood for example, have better things to do than licensing snippets, or, if they do license snippets, the price asked for its use is prohibitive to the artist. In such cases, the entire creative and economic transaction process collapses and this is what CC seeks to counteract by creating commons, a pool of free works. In the framework of CC however, copyright is not completely abandoned. The creator can still exercise control by retaining or reserving certain rights for himself.

INDICARE: In this sense, do CC apply mainly to the artistic domain?

Th. Dreier: That is why they’re called creative commons, commons for creativity. We’re dealing first and foremost with the artistic field, mainly text, music and images. To better understand the origin of the CC we have to recall the following situation in the US: the legal scholar Lawrence Lessig attempted through a complaint at the Supreme Court to prevent the extension of the fifty year copyright following the death of the creator to seventy years. He was unsuccessful, and I believe that after failing to attack copyright from the outside, he now wishes to redesign it from within - a completely legitimate approach. By this approach he can on the one hand ensure legal certainty and on the other hand ensure that there are enough creative works available to build upon.

INDICARE: What does the creative process have to do with CC?

Th. Dreier: Historically seen, nobody has ever produced from scratch but always in their creative work built on the work of others. In the extension of copyright the proponents of CC see a threat to this principle. Against the background of certain creative strategies, they are moving against this. Apart from appropriation art just mentioned, think about the DJ culture which rests entirely on the use of parts of existing recordings, even if they are re-used as no longer recognisable sound sequences. If I scratch and perform this scratching publicly or mix it onto my own recording, I have of course used someone else's recording rights and these rights have naturally not been licensed by the producer of the recording since DJ culture is tangential to them. Hence, the whole artistic activity is threatened by the exclusive rights. This is indeed just being discussed intensively in the US. Someone known as DJ Danger Mouse has taken the Black album by Jay-Z and the White album of the Beatles and mixed them together to make a “Grey album” and was promptly served with a cease-and-desist notice. It is situations like these that can be regarded as the starting point of CC. Of course, another starting point of CC is the model of open source software.

INDICARE: You took part in the project in Germany yourself. What were your reasons?

Th. Dreier: I was spontaneously fascinated by the way the CC-project used the new opportunities of communication technology to create contractual relationships. Of course, it was possible to conclude contracts over the net in the past and that could be quicker than using letters or faxes. Moreover, for some time technicians tried to integrate all of these differentiated user relationships into the data set of the respective works. For instance a model was developed in which these were included in the header of the dataset before the protected object itself. In this approach there is a need to ensure that the data were not removed or forged etc. That was fairly complicated and – in spite of legal protection against the removal of such rights management information – is still rather insecure. There is also the model of colleting societies. These hold the rights to the works, and a user can access not only the data but also the conditions of use via colleting societies. Lessig reversed this principle and said: All what has to be done is storage of the license in one place and this place is then signposted by each user who wants to place his or her work under this particular licence with small, simple icons as figurative pointers. Under the CC-approach, the licence does not travel with the work, but only the pointer.

This was the aspect that stood in the foreground for me. This development is in my eyes an example of how communication technology changes the structure of user relationships. There is a type of transaction emerging which would have been impossible or extremely difficult in that shape before. That fascinated me and at the same time it is good to help artists create an environment in which some of them obviously feel comfortable. Even if it is at odds with the rationality of the, let’s say, commercially oriented system.

It should be added that the legal text and the symbol of each of the different CC-licenses is not all of CC. In addition, to all of the CC-licenses (attribution; non-commercial; no derivative works; share-alike; the founders’ copyright-licence doesn’t exist in Germany) there is a layperson’s version, and a machine-readable version, which makes it possible to trace and locate works which have been placed by their authors under a CC-licence.

INDICARE: What is the relationship between CC and German Copyright Law?

Th. Dreier: The idea of the license is mainly American. In addition, if I as a German protect my work with an American license, there’s naturally the question why I also need a German license. However, there are mainly two arguments for developing a parallel German CC-license: one is the marketing aspect – a license can be truly popular only if it is written in local language. In addition, the Federal High Court (Bundesgerichtshof) requires all clauses to be comprehensible for users, which probably means that German users must have the opportunity to read the clauses in German.

The second aspect is that if we decide to issue a German license so that it may be understood in Germany, it has to be adapted to German law. For CC the main task consisted of keeping the basic idea and looking for ways to materialise and codify this basic idea in German law. For example, what we in Germany call “distribution” forms part of “public communication” under US law. Also, the German license had to be adapted to the surrounding legal context. To give an example, since the 1970s we have had consumer-friendly legislation controlling general contractual terms and conditions. If a clause of a particular contract is formulated in a way that transcends what is legally permitted, then it is a priori invalid. This is the incentive for those who draft standard contractual term and conditions to conform whenever possible to the limits as set by the law. As the CC define a set of business relationships by pre-formulated contractual terms and conditions, this requirement had to be fulfilled here too.

INDICARE: Does that mean that there is no need for internationally valid CC?

Th. Dreier: As I’ve said before, I don’t see a real need. People always use their national license and in that way release the work world-wide. This is testimony to the cross-border nature of the Internet. Behind this are a whole series of legal matters of detail into which I won’t go any further here. Just one important aspect: the German author cannot abandon all of his or her rights. Even if, in the license, the author promises that he or she will make no use of these rights, a user can never be certain that the author will not change his or her mind. That is something that cannot be regulated neither by an American nor a German license. But I don’t believe that it will often lead to problems in the framework of CC because the people who use CC want their works to be freely available on the Internet, and to be accessible free of charge. All in all, an attempt is made to transform the ideas behind the American licenses 1:1 and to develop licenses with a similar structure. Of course, when it comes to legal fine-print, things look slightly different and a perfect 1:1 transformation is impossible.

INDICARE: Is the CC model accepted?

Th. Dreier: In the U.S. the model is well-accepted. The same goes in general for Germany, but I can’t quote any up-to-date figures. But I was very surprised when I was approached by some of my law students at the University of Freiburg who told me that they have already used CC. Interestingly, awareness of CC is orders of magnitude greater among the technicians here in Karlsruhe or among students with an interest in technology in Freiburg than in the classical copyright community. In Germany the realisation that something new is emerging has not yet arrived in the copyright community. But I can’t guess how big CC in Germany might turn out to be. I think that an interesting question in the context of CC is its non-commercial nature. CC is a model developed from A to Z for non-commercial use. There is deliberately no royalty.

INDICARE: How do you see the relationship between non-commercial and commercial use?

Th. Dreier: The idea is that CC enable free use, naturally in the restricted sense that rights are granted. If someone grants permission for non-commercial use, author credit and reciprocity under this license, he or she has merely granted permission for non-commercial use. If someone wishes to use the same work for commercial purposes, he is faced with normal copyright and would normally have to develop an individual contract with the owner. Here, CC would be of no use. That’s exactly what it’s all about: CC are somewhere in the middle between total exclusivity and copyleft. Lessig puts it nicely: they’re somewhere in the middle between “everything is locked away legally and technically” on the one hand and “total copyright anarchy” on the other hand. It’s not “all rights reserved” or “no rights reserved”, it’s not “copy left”, but it’s “some rights reserved” and in that way really a well-balanced medium approach.

For example there were problem areas in Germany since the libraries basically wished to take part in the project by providing the distance lending facilities of their archives. However, historically, scanning, transmission and maintenance of data usually takes places against fee payment. This was a source of income that the libraries didn’t want to abandon. This wish of libraries cannot be reconciled with CC in their present form.

INDICARE: Do commercial users have any interest in participating in CC?

Th. Dreier: I’m not sure if commercial users really want to participate, but the example of libraries shows that a new user market is emerging in which everyone wants to take part. The mechanism does have a certain attractive function. But at the moment I don’t see any way to home on the commercial use track. At least it’s not foreseen in the basic concept. There are attempts being made to add further modules. For example, it would be possible to combine CC with a kind of micro payment. This is not unthinkable, but the original idea of CC is that use is free of charge. On the other hand you can say that technical protection measures, that is DRM, only make sense if I can, first, make money out of them and, second, diversify my products. It’s only then that I can offer different qualities of use priced differently. If I leave away the staggered pricing there is little sense in selling one CD completely free of copy protection and the other with copy protection. You could thus say that CC integrate the non-commercial side and DRM the commercial side. In this sense they meet head-on, and to that extent the model of CC could be called the strategic attempt to counteract the all too rapid advance of DRM and its associated access to information only for payment.

INDICARE: Let’s turn to the efficiency and limits of the CC approach

Th. Dreier: Before such considerations there is the big question: how do we organise the attribution of immaterial goods? From classical economic theory we learn that we have to make such goods artificially exclusive since they are not so by nature. There is thus no real sense in making an exception. In contrast, Lessig tries to cut the over-protection for these goods. I think whether this will ultimately be successful in any respect depends on many things, including problems which have not been researched thoroughly up to now.

INDICARE: Which problems?

Th. Dreier: Take for example the question of the preservation of these goods: Is access in the long run really easier if I put them freely on the net? The search engine now obviously tells me that it can find the goods. But who will guarantee that the search algorithm can still find my protected work tomorrow? Whose job is it to see that my data format is maintained? Today, on the other hand, the famous back catalogue of the record producers and the potential for centralised libraries archiving digitised works make it quite likely that my stuff stays accessible.

INDICARE: Is this a big question-mark in the framework of CC?

Th. Dreier: Possibly there is this uncertainty. Today by access we usually mean quick access via the Internet, a question of quantity. However there is also qualitative access: how do we store goods in the long run? This question of how to get access to the goods is practically ignored. People assume that there will always be access on the net and as a result only concern themselves with the time - the average 0.14 Google seconds needed to get access seem fabulous - and the costs - which often seem prohibitive. Hence, a cost-free, quick access seems rather tempting at first sight. However, in my opinion qualitative access is a critical aspect which should be considered regarding Lessig’s project.

INDICARE: In your work, you stress the innovative character of CC in the economic sense, but you also see some possible drawbacks. Can you expand on this point?

Th. Dreier: As I’ve said before, copyright had been invented in order to incite creation. Assuming that the assumption that copyright does indeed incite creation, then the incentive to create is diminished if you take away, or even limit the exclusive rights of copyright. The essential question is: is this assumption true, or to what extent is it true? Rightholders say yes it is; the generation in favour of CC, who sees the world as distorted by too many protective regulations, has its doubts. CC postulates that creative work grows and flourishes if artists are not bothered by alien intellectual property rights. On the other hand classical economic theory says people are only creative if they can be sure that they will be paid afterwards. The principle that the creator is to benefit from the revenue from the exploitation of his work is basically a cornerstone of our copyright law. The law maker can intervene in the freedom of contracts to protect the author. And now we have authors just coming forward and saying that doesn’t interest us one bit, or at least only partly. The question is where and under what conditions this can work.

There are probably fringe areas in which you can have a first mover advantage, i.e. the first person to do something draws peoples’ attention to himself. During a conference in Berlin it was a Swiss who put his film under CC license. He had wanted to market his film and discovered he couldn’t find a distributor because all of the distribution chains were connected with the big companies, and because the small cinemas had to find ways to make money. There was no room for no-name products, so he uploaded his film freely on the net, and, to his surprise, got fabulous download figures. However, he just was the first to put a film on the net with a CC-licence and that brought him much of the attention for a film for which financing had already been secured prior to putting it online. Moreover, the online-distribution didn’t generate any additional direct income which this filmmaker might have used to produce his next film. More important, however, I presume that the second, third and any other people putting their films on the net will not gain the same degree of fame as the first. As long as not many people have used CC there might still be a myth associated with it. Once CC becomes day-to-day routine, this myth will fade and we will see what CC really means for an increase in artistic production. We might well see that the material placed under a CC-license is different in nature from what is being exploited commercially.

INDICARE: In which areas could CC work?

Th. Dreier: You can already guess that it won’t work wherever people have to earn their living with creative work. For instance, in my opinion, in the field of classical journalism, CC won’t work. There, the products, the texts, can’t simply be given away, and if you give your texts away for free, it is no longer classical journalism but blog-culture. I always tell my students that a frustrated 17-year-old writes his love poems without giving copyright protection a thought because he has entirely different reasons for doing it. But for everyone else, even in the open source area, it works in the way that people who have gained fame and honours want to capitalise on it in other ways. That might be participation in conferences, it could be being given credit, but in the end most are looking at the commercial distribution area or at areas surrounding it and try to convert their fame into remuneration. In other words: the success of CC will depend on how many possibilities there are to earn money with related activities, unless we contend ourselves with works created by waiters, taxi-drivers and the jobless.

There is another important point: I strongly caution against seeing the word “free” as a panacea and pulling the carpet from under the feet of entire professions or simply dismissing whole branches into poverty (such as depriving journalists of their legitimate income). That can’t be openness nor is it democratic. As I’ve said before, CC will probably work better in some areas and less well in others, but it hasn’t been tested yet in which area it works which way. But CC are slowly gaining support and is obviously being greeted with open arms by several hundred of thousands of artists. If that’s a real need, why not supply it?

INDICARE: Can you think of other fields for CC than the artistic field?

Th. Dreier: Yes. Another area Lessig has been thinking about is the so-called scientific commons. These imply the question whether the CC structure cannot simply be translated to the field of scientific publications. This discussion is making massive progress over here as well. University libraries or other large libraries like the one here in Karlsruhe are increasingly feeling stifled by price increases being enforced by monopolistic publishers, mainly in the scientific, technical and medical (STM) field. And here there is much debate about reconstructing the model so that scientists, who are paid by the State anyway, put scientific results at general disposal. Of course, if such a decision were taken, STM-publishers wouldn’t completely disappear but they certainly would have to restructure their fields of activity. They could still organise peer review, and offer services that university libraries could not do, etc. They could work as portals and platforms opening the gates to, and drawing for their commercial publications from the wealth of articles deposited in huge pre-print archives. In this way, two markets could be created: the large, free pool and the commercially organised market. Publishers might not even suffer any losses, quite to the contrary. It would be a model that could give great relief to public research institutions as a whole, provided costs for organising preprint-servers are not too high. Again, CC could jump in to facilitate transactions. Of course, CC in the scientific domain would have to be further differentiated. CC for physicists would probably look different than CC for legal people. I doubt if there could be a “fit all” for all fields, which really fulfils the needs of all disciplines.

INDICARE: In your work you often refer to the progress of technological development, which might unhinge valid legal provisions. How do you see the relationship of technology and law today?

Th. Dreier: I feel we don’t know. Somehow, we’re standing in the middle of it all. On the one hand we can see a nice continuity of technological development. This continuity goes from printing via music cylinders, gramophone records, wireless and television broadcasting to the Internet, in short, we see an ever-increasing improvement in the performance of reproduction and communication technology. On the other hand, we have, without noticing it, enormous discontinuity of copyright. For, if we look at the structure of copyright law, we see that it was conceived for books, music and paintings. If in the past we were dealing with individual transactions, today we are dealing with billions of simultaneous transactions and this brings with it an enormous enforcement problem. This is because the old model whereby an author secures his or her rights and then starts exploiting them obviously cannot work with these user numbers. If we took every single file-sharer to court, the courts would collapse. The problem is that law is increasingly becoming a mere set of guiding rules: people should behave in a certain way; if the rules are broken the potential sanctions are usually not enforced. If they are enforced and do have impact on individuals, as has been the case in a series of law suits in the US, they have exaggerated impact. This example hints to the pressing question: What can law really do?

INDICARE: Is DRM a possibility?

Th. Dreier: One basic problem of DRM is its acceptance. For DRM, the situation is that full-scale usage is inherent in the set of data, which has only been artificially throttled. And if people have the complete data set in their possession, I think it is difficult to explain to them that it has been throttled so that they pay less. However, it is a basic assumption that DRM and product diversification must be built to enable economically sound digital markets. This assumption is however very controversial. Some economists say that more overall welfare is being destroyed in this way than we can win. Disregarding technical issues, this seems to me to be a major problem.

Otherwise, I quite like DRM as an option. I think the most desirable system would be one that allows the rightholder to chose what he or she wishes to do with his material, whether he or she wants to diversify and protect it against unauthorised, unpaid-for use by DRM, or whether he or she opts for a CC-license.

INDICARE: In this sense, could DRM be viewed as an alternative concept to CC?

Th. Dreier: I think so. DRM attempts to secure copyright on the one hand and on the other hand to take advantage of the potential of technology to enable product differentiation and price differentiation. In theory that way DRM will benefit both the producer and the user. The consumer must no longer buy a CD which he can infinitely listen to or copy many times but buy music having far lower scope of usages - either because it is copy-protected or because it is provided only as a stream roaring past the hearer’s ear once. There certainly is a market for such product differentiation. For example, some record shops provide the model of one-time listening: You can have a nice evening, a little uncomfortable maybe, but if you want, you can listen to music at will for a whole evening. At some point you’ll no longer do that and use the system to get information and to decide which CDs to buy. In the end, you most of the time spend more money after having listened to some of the tracks of many CD’s this way than you would have done in case you could only see the jackets of sealed-off CDs.

This is a point where legal reasoning and economic theory do not easily agree. From the legal viewpoint DRM and protective mechanisms seem more in the line of defence: the rightholder doesn’t want consumers stealing his stuff! Economists, however, see it the other way around and say: all this money is being invested in defensive protective mechanisms to defend existing market shares. When you could instead be investing the same money and creative thinking in offensive strategies aimed at opening new market segments and getting consumers to buy more than they’re doing now. In a way, the concept of DRM is just as fascinating as that of CC. However, it is much easier to apply CC.

INDICARE: I think we have covered many issues related to CC, and I thank you kindly for the interview.

Contact: Prof. Dr. iur. Thomas Dreier, M.C.J., Institute for Information Law
University of Karlsruhe, Am Fasanengarten 5, D-76131 Karlsruhe, Tel: ++49 (0)721 608 3395, E-mail: dreier@ira.uka.de


Status: first posted 20/09/04; included in INDICARE Monitor Vol. 1, No 4, 24 September 2004; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=40