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Creative Commons Report

EngageMedia at Creative Commons Australia

On 29 November 2006 EngageMedia attended “Unlocking the Potential Through Creative Commons” – a CCau industry forum and ccSalon at the Queensland University of Technology’s ARC Centre of Excellence for Creative Industries and Innovation (CCI) in Brisbane.

The event included an overview of Creative Commons licenses, the launch of the Open Access to Knowledge (OAK) Law report “Creating a legal framework for copyright management of open access within the Australian academic and research sector”, an audiovisual remix and musical mashup performance of CC licensed works during the ccSalon, and industry meetings that broke into three groups – government information, education and libraries, and media and the arts.

EngageMedia attended the media and the arts strand, facilitated by Elliot Bledsloe and Nic Suzor from QUT:
“cc, creativity, media and the arts – cc has massive potential for the creative industries. New ways of thinking, collaborating and capitalising on creative content are only part of what it offers. It is a tool for assisting collaboration, innovation and experimentation, and can open up options for the utilisation, promotion and distribution of content.”

We presented the EngageMedia website and discussed with the group the use of Creative Commons licenses in our online video publishing system. The presentation was a walk-through of the website’s main features and functionality including registering, logging in, browsing and publishing content, and vodcasting with Democracy Player.

Discussing our experiences of the way our project uses CC, an example was provided by the ccSalon performance that night, prior to which we had been asked to provide video content from our website by filmmakers who allowed their work to be screened or remixed. It was easy for EngageMedia to simply direct the performers to the work on our site, where the CC license would explain the terms in which the filmmaker chose to allow their work to be used, without a lengthy period of negotiation between ourselves, the producers and the re-distributors of the work.

Creative Commons provides a very usable framework for filmmakers wishing to use open content licenses on EngageMedia, while preserving some rights that leaves the potential for them to recoup production funds through commercial distribution of their work, enabling the filmmaker to produce more work in future.

The EngageMedia website encourages users to download and share video, rather than using that bandwidth to simply stream the video without being able to save it and distribute it via that user’s personal networks. It is therefore necessary for us to have a system whereby users can establish the grounds on which they may re-distribute or re-use that work, rather than having default copyright apply to that work, restricting the user from doing anything further with it at all.

Downloading a video constitutes making a copy of that work, which is prohibited under national copyright laws. This copyright is applied to intellectual property by default, though the producer of the video may in fact wish others to download their work it will not be legal unless specified by the producer. Many videos on EngageMedia cover issues that are largely ignored by commercial and government media institutions and cannot compete with other material being disseminated through traditional distribution channels. The need to open up other channels of distribution for this kind of work is clear – encouraging the sharing of work on the internet by removing restrictive copyright will open up these channels.

Many filmmakers whose work is showcased on EngageMedia see themselves as activists as well as filmmakers, and are involved in the campaigns, social movements and issues they are examining in their work. Profit is rarely the primary motive in this kind of independent production, though filmmakers are often interested in attaining mainstream distribution of their work for many reasons – reaching mainstream audiences, recouping funds and building a career in film and video production. Video activists are also often interested in having some control over the context in which their video is distributed. This means that producers are sometimes less likely to wish to release their work into the public domain than to make choices about which rights they wish to reserve, which is where Creative Commons is especially useful.

We discussed other positive aspects of the CC system during the forum. Though video makers may be interested in these issues they are not necessarily experts on copyright and other legal issues. The ease in which Creative Commons licenses can be chosen without having to get bogged down in the fine-print is definitely in CC’s favour.

Problems with CC were also discussed, such as issues that really stem from copyright law rather than CC itself. The problem in defining “commercial use” was raised, with an example of two universities using intellectual property for educational purposes, though one university is a publicly-owned institution and the other a commercial enterprise. It was explained that no court in Australia has been very specific about this, that the courts have chosen to make decisions on this area on a case-by-case basis rather than narrowing down this definition.

One issue specific to CC in discussion was the perpetual nature of CC licenses. While many contracts for use of copyright material may be limited in terms of the number of uses of the work, the regions in which it may be used, or a number of years, CC licenses are granted for all in perpetuity. A filmmaker may ordinarily choose to license a program to ABC TV for two transmissions, in the territory of Australia alone and in exchange for monetary compensation rather than granting unlimited use of their material, whereas CC licenses do not place such specific and customisable limits on the use of material.

Participants raised the example of a filmmaker who has released their work under a CC Non-Commercial license, and who may have subsequently gained commercial interest in their work as a result of its wide distribution. The filmmaker may then wish to revoke their CC license in order to sell this work to the ABC for a number of broadcasts (transmissions) of their work, however this is not possible under a CC license.

The reasons for this were explained by representatives from CC Australia as being mainly that this situation would be unworkable, and unfair to those who have obtained your work under a CC license prior to it being revoked. It would be too difficult to retract your CC license once you have used it, as making everyone who received your work with a CC license aware that it had changed would be too difficult. Given that CC has wider aims of creating a pool of work within a creative and intellectual commons this kind of revocation is not desirable in any case from CC’s standpoint.

In this example of selling a CC Non-Commercial licensed video to the ABC it is clear that as the CC license is Non-Commercial the creator may grant an exclusive and limited commercial license for transmission to the ABC. However it is not the habit of television programmers to accept anything but a totally exclusive (commercial and non-commercial) license for a program within a single territory. Therefore there is a perceived barrier to the licensing of CC material, at least in the broadcast industries in Australia. However this culture may change with growing familiarity of CC and open licensing in general.

The question of whether or not CC licenses held up in court was raised, with the general assessment held that they do, though no Australian legal cases could be used as an example. An example was raised of a case in the Netherlands of photographic images licensed as CC Non-Commercial that were subsequently printed on the front-page of a Dutch newspaper – the Dutch court decided to observe the CC license and rule that the paper must pay for the photographer for the use of this material as it was commercial use of CC Non-Commercial licensed material. This ruling appeared to support the underlying copyright law rather than the CC licence itself, though at least it was clear that the CC licence did not interfere with the “some rights” that had been reserved.

Another case in Spain was mentioned, where collecting societies (similar to the Australian Performing Rights Association) automatically assume that venues such as pubs play commercial copyright music and therefore collect monies from venue-owners for use of this music. The venue proved to a court that it was playing music that was Creative Commons licensed music that allowed for commercial use of this work and the court ruled the venue did not have to pay the collecting society. It was mentioned that collecting societies in Australia are currently largely unsupportive of CC in Australia.

A few forum participants raised the difficulties involved in legal clearance of audiovisual material, that it was not only a matter of sorting out copyright, but trademarks, collecting societies and release forms from actors or others involved in the production of a film or video. Creative Commons and open-licensing systems in general were praised for having the potential to make this process smoother, even though CC is concerned only with copyright law, not moral rights, trademarks etc.

Various cases of the widespread illegal use of copyright material were mentioned, and used as an argument for CC to help people avoid committing criminal acts as part of their daily cultural lives. Most people are aware of the global peer-to-peer file-sharing phenomenon, which makes large portions of the community criminals under existing copyright legislation. The need to adapt to these changes in the way people listen to and share music is apparent, and there was little sympathy expressed by cultural producers for the large record companies that are fighting the use of peer-to-peer technologies and yet are renowned for ripping off artists unless they are popular and thus powerful enough to stipulate worthwhile benefits to themselves in their own contracts.

The case of “Red vs Blue” was raised as an example of the reuse of copyrighted material that has had commercial benefits for both the copyright owner and re-user of the copyright material. This series of comic science fiction audiovisual works made popular on the Internet since 2003 is a type of video-production known as “Machinima”. Machinima is produced by recording the video-output of computer-games, editing the video and applying a voiceover to create a narrative. Red vs Blue is a Machinima series based on the Halo game on Xbox. Microsoft who own the Xbox video game system and who are the parent company of Bungle Studios who produced the Halo game did not bring legal action against the producers of Red vs Blue as it turned out to be an effective marketing tool for their game and hardware. However if Red vs Blue had produced video that was contrary to Microsoft’s marketing strategy or commercial interests they could have expected prosecution for this breach of copyright. In actual fact the producers of Red vs Blue reached an agreement with Microsoft for continued use of the game in the production of the series, without having to pay license fees.

The proposed changes to the Copyright Act in Australia were briefly mentioned, being on the whole a drastic turn for the worse as far as restrictions imposed on intellectual property are concerned. These proposed ammendments are to bring Australian law into line with the Australia – US Free Trade Agreement. Since the forum these changes have been reviewed by parliament and some of the more drastic penalties including on-the-spot fines for copyright infringement have been reduced or abolished. There is also a clause that may allow the use of copyrighted material for “parody or satire” in addition to criticism or review exceptions already available in fair-dealing provisions.

Alternative open content licenses were not discussed in detail, though the GNU General Public License for free software and subsequent GNU Free Documentation License used by Wikipedia were mentioned briefly. Creative Commons has been criticised by some as not being driven by the same strong sense of ethics as the free software movement and other copyleft initiatives, and is thus not as effective as a political tool for creating open knowledge.

I found the forum a useful opportunity to go into CC and open licensing in a bit more detail. CC is both a practical framework for us to deal with restrictive copyright on our download-based video site, and an interesting example of a legal framework built by lawyers but based on social movements and cultural realities rather than the other approaches of a. law reform b. yet more “open” licensing systems or c. disregarding the law entirely and embracing video piracy as an ethic itself.

It’s a series of pro forma contracts that, once being standardised by mass usage in the community, are like an extra bit of law tacked on to our existing copyright laws, that enable these laws to be used in quite different ways from the intentions of the legislation itself. In this sense it is both an interesting and radical community-led approach to the law and to copyright. Providing a legal framework for people to contract themselves out of restrictive copyright laws and the popularisation of this will both facilitate cultural shifts around the concept of intellectual property and help our legal system adapt to these changes. However it is simultaneously arguably less radical and capable of facilitating this social change than demanding a repeal of these laws or simply choosing to ignore them.

After this session the ccSalon began with Andrew Garton from our partner project OPEN CHANNEL along with Collusion and Collapsicon performing at (re)mix me: a showcase of cc in australia, featuring images, text, sound and video from the creative commons in the Block Gallery. Audience members had the chance to peruse work from Australian flickr photographers who have licensed their work as Creative Commons, text by CCNews in Queensland and a New Leaf Media, and check out the EngageMedia website on a computer terminal in the gallery.

More information about Creative Commons can be found here:
http://www.creativecommons.org.au

A critique of Creative Commons in relation to Australian copyright law from the Australasian Legal Information Institute (UNSW/UTS) can be found here:
http://www.austlii.edu.au//cgi-bin/disp.pl/au/other/AIPLRes/2006/4.html?query=creative%20commons%20license#fn1

A critique of the de-politicised nature of Creative Commons can be found here:
http://www.freesoftwaremagazine.com/articles/commons_without_commonality/

Some useful definitions and further reading:

Intellectual Property
http://en.wikipedia.org/wiki/Intellectual_property

Open Content Licenses
http://en.wikipedia.org/wiki/Open_content

Australian Copyright Law
http://en.wikipedia.org/wiki/Australian_copyright_law

Copyright
http://en.wikipedia.org/wiki/Copyright

Trademarks
http://en.wikipedia.org/wiki/Trademark

Moral Rights
http://en.wikipedia.org/wiki/Moral_rights

Collecting Societies
http://en.wikipedia.org/wiki/Collecting_society

Publishing Rights
http://en.wikipedia.org/wiki/Music_Publishing