The reading for this was Elkin-Koren’s Creative Commons: A Skeptical View of a Worthy Pursuit. I missed most of the initial presentation, but the basic argument of the piece was that Creative Commons licenses have deep flaws in that they encourage a view of copyright as permeating every creative work, such that uses require licenses, and also increase information costs because of the variety of possible CC licenses.
Her basic take on long term challenges:
Ideology: we need a clear definition of the “free flow of information,” which doesn’t exist in CC.
Practice: limiting choice – the licenses should exclude terms inconsistent with freedom of information, such as No Derivatives.
Goal: In the long term, regulation should be changed, not private action.
Also, the diversity of licenses creates problems of its own – avoidance costs. Free software uses principles to make all the licenses compatible.
Michael Abramowicz: He is skeptical about the critique of no-derivs, a restriction which is often as important as attribution. If I want attribution, I want attribution of the right thing to me.
A: But you can attribute the parts that come from another source, by quoting in a paragraph for example. (Won’t help with fictional sequels or photomanipulations unless you also make the original available side by side. Also, CC licenses don’t purport to prohibit fair uses like quoting.) Now on Flickr everyone is an amateur copyright lawyer; it legalizes a lot of relationships.
Q: How can CC increase information costs vis-à-vis the default of copyright?
A: You don’t know which rights are reserved & what’s permissible. You still have to investigate and use (real) copyright lawyers. In practice it is very difficult to implement CC licenses on a large scale.
Even before CC, people assumed that they could use material on the internet for noncommercial purposes. Now there’s a whole set of choices and licenses, people may decide to put more restrictions – like no-derivs. The concern is that CC may not have made anything much better, and may even have made things worse.
Q: Scientific & technical publishing often begins with support from public money. New proposals say that works created with public money should soon, if not immediately, be publicly available.
A: This should be addressed through legislation. CC and other open content initiatives are second-best.
Q: What about people who wouldn’t post their work without the security of a CC license?
A: If they don’t want derivatives, they should use a license that doesn’t allow derivatives. You can always choose copyright’s default instead. CC pays a price in ideological consistency by claiming to support free circulation of information but also allowing no-derivs. And the presence of that option leads people who might not have thought about it to choose no-derivs. It’s better for people to stay out of CC and make up their own terms, than for CC to have a no-derivs option. (I take it that Elkin-Koren is therefore more disturbed about the ideological inconsistency than the information costs point – or maybe she’d rather say that the persistence of information costs with CC licenses means that all you get from CC is harm to the concept of free information without the promised benefit of easy understanding of use rights. I think she’s exaggerating the information costs – it’s easy to say “CC offers dozens of different licenses,” but they have only certain basic components. But fundamentally I think she’d object to CC with no-derivs even if she thought it improved information functioning, because that would still contribute to the marketization of information.)
Q: Okay, so CC is not as helpful as it wants to be. But I’m still having trouble finding the harm, when you can always rely on fair use or on explicit agreement with the copyright holder. That baseline remains unchanged. Maybe our energies could be devoted to legislative reform instead – is that the harm?
A: Yes. Also, it legalizes the relationships in a way that didn’t exist before. NGOs and bloggers, for instance, now think about copyright when people posting on the internet didn’t bother before, so the net result is constraint.
Q: What about CC’s aid of autonomy interests?
A: It’s always easier for big corporations to license and use others’ work. The more amateurs have to license, by figuring out the CC license, the greater a disadvantage they have versus the big guys. But autonomy is an important issue because it helps explain the conflicting goals of CC licenses – that’s why CC ends up with no-derivs rather than making the hard choices.
Bob Brauneis: Institutional reality –it’s easier for CC to get grants if it’s working on new licensing variants and options.
My comments: Elkin-Koren’s critique of CC seems structurally similar to the critique of no-fault divorce: Even when relationships “work” and thus seem to be the same as pre-reform, all relations are made unstable because the participants now understand them to be choice-based, not status-based. Economic/outside norms start to penetrate into previously non-rights-based realms. People who didn’t think of themselves as rights-bearers/copyright owners now do, and relate more formally to others, taking away the informality and flexibility that previously existed.
When it comes to family law and related areas, this model has been critiqued extensively in Viviana Zelizer’s work, which argues that the divide between commerce and emotion never really existed. We just create different moral and emotional tools to define and manage relationships so that they don’t mix commerce and emotion in the wrong ways. Perhaps here we are arguing about whether using a standardized way of naming the terms on which people want others to use their works mixes creativity and “rights” in the wrong ways, or whether it empowers people to choose new types of relations previously unavailable to them. In other words, is it wrong for an amateur writer or photographer to think of herself as someone who owns copyrights, even though she knows they’re not economically valuable? Does she think of herself in different, worse ways? Does she behave worse towards people who want to use her works? What CC license, what copyright law, would encourage us to think of ourselves in better ways?
(We could also have this discussion in terms of “rights talk” and its utility or disutility to disempowered groups. CLS may be dead, but it’s still pretty.)
A: A Belgian scholar is using feminist theory to analyze CC – that’s worth looking into. Expanding rights is not necessarily beneficial to individuals, who may become more dependent on others’ ability to exclude them.
Elkin-Koren is of course right that entities with more resources benefit more from the legal system than entities with fewer resources. But that doesn’t help much unless you have a clear idea of the baseline – if you’re poor and powerless, that doesn’t mean that getting rid of the law will improve your situation.
I don’t think that the use of no-derivs in a third of CC licenses indicates that CC is making things worse in terms of norms of sharing information. I’m not sure she’s right that “people,” whoever that was, just used to ignore copyright (file-sharing aside), or that such a norm would have persisted were it not for CC. The RIAA and the MPAA have education programs they’re trying to get in every classroom, from kindergarten to college. Elkin-Koren mentioned Jessica Litman’s article Sharing and Stealing, which expounds on this 90s attitude of free circulation, but I was under the impression that Litman thought that big corporate interests were more responsible for any change in this attitude than CC.
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