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Vol. 13 No. 7 — July 2005

The federal government offers access to a wealth of public domain content that can be used in creative and interesting ways. Most content created by the federal government is not protected under existing copyright laws.¹ The Library of Congress and the National Archives have vast collections of photographs and prints, videos and movies, and audio recordings available for use. Just to be on the safe side, though, always read the fine print when you use audio, video, film, or images from the Library of Congress — or, indeed, any other archive, museum, or public library. Likewise, many Web sites from the executive branch of the federal government offer extensive digital collections.²

How can you help patrons identify public domain content that might come from blogs, podcasts, Web sites, and organizations? Existing copyright laws have made it more difficult to identify public domain content. Why? Because everything copyrighted once exists in a “tangible medium.” What does this mean? The e-mail you sent to your brother is protected by copyright. The picture you took at your cousin’s wedding is copyright-protected. The sketch you made of your dog while sitting through another boring meeting is also protected under current copyright law. Consequently, there is no way, until recently, to identify not only what materials the “public” already owns, so to speak, but what materials owners of the copyright might want to make available for others to use, without requiring the them to ask for permission. Of course, even the generous might have some limits on use....

A Quick Overview of Copyright Law: 1790–2005

Copyright law has undergone significant and far-reaching changes since 1790 when Congress first implemented the copyright provisions as spelled out in Article 1, Section 8, Clause 8 of the United States Constitution. In that original copyright law, Congress has the authority to “promote the progress of science and the useful arts by securing for a limited time to authors and inventors the exclusive right to their writings and discoveries.” The law “granted American authors the right to print, re-print, or publish their work for a period of 14 years and to renew for another 14.”³ The framers of the Constitution and the law that codified the implementation said that copyright “was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of ‘science and the useful arts’ through wide public access to works in the ‘public domain.’”⁶ However, to receive all the protections of copyright, the person seeking copyright protection had to register the work. If you failed to register the work, you lost all copyright protections and your work would enter into the public domain.

For major changes to protections, the next major revision came about in 1909 when Congress increased the list of protected works and also extended copyright to include all works of an author. The act also extended the term of protection to 28 years with the possibility of a one-time renewal of another 28 years.⁷ 

Copyright protections underwent major and significant revision again with the Copyright Act of 1976. Congress made the revision for two important reasons: technological changes producing new media types requiring specific coverage and compliance with international copyright laws and practices, specifically the Berne Convention. The Copyright Act of 1976 had several far-reaching consequences. The Act “preempted all previous copyright law and extended the term of protection to life of the author plus 50 years (works for hire were protected for 75 years). The act covered the following areas: scope and subject matter of works covered, exclusive rights, copyright term, copyright notice and copyright registration, copyright infringement, fair use and defenses, and remedies to infringement. With this revision, for the first time the fair use and first sale doctrines were codified and copyright was extended to unpublished works.”⁸ 

In addition, the 1976 revision dramatically changed the previous requirements surrounding registration and renewal of works. Previously, as we have seen, one had to register the work with the Copyright Office to claim all the rights and protections of copyright law. With the Copyright Act of 1976, you no longer had to register or renew copyright to enjoy all its protections. “Henceforth, everything — from e-mail message to doodles on a napkin — was automatically copyrighted the moment it was ‘fixed in a tangible medium.’”⁹ 

In 1988, the United States signed onto the terms of the Berne Convention. Consequently, this meant “greater protection for proprietors, new copyright relationships with 24 countries, and elimination of the requirement of copyright notice for copyright protection.”¹⁰

Since the major revision of 1976, copyright law has undergone two other important changes. In 1998, Congress passed and President Clinton signed into law the Sonny Bono Copyright Term Extension Act (CTEA) and the Digital Millennium Copyright Act of 1998 (DMCA). The Copyright Term Extension Act extended the “duration of U.S. copyrights by 20 years. Before the act, copyrights lasted for the life of the author plus 50 years. After the act, copyrights lasted the life of the author, plus 70 years in the case of individual works, or 75 to 95 years in the case of works of corporate authorship and works first published before January 1, 1978. It also affected works still under copyright that were published prior to this date, increasing their term of protection by 20 years as well.”¹¹ 

The Digital Millennium Copyright Act of 1998 “prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work.”¹² In other words, if the owner of the copyright has implemented a technological control that prevents you from copying, distributing, sharing, or sampling the work, you cannot develop a means of breaking that control. If you develop software tools that can break the copyright protection control, you violate the DMCA and become subject to prosecution.

Some disagree with the path of modern copyright legislation. Larry Lessig makes the point in his book, Free Culture, that the previous copyright renewal system “assured that the maximum terms of copyright would be granted only for works where they were wanted. After the initial term of 14 years, if it wasn’t worth it to an author to renew his copyright, then it wasn’t worth it to society to insist on the copyright, either.”¹³ Since that initial law, copyright has been revised many times, with this net result — copyright is for the life of the author plus 70 years and 95 years for corporate authorship. These extensions seem to fly in the face of the original intent of that first copyright law. Limited copyrights would protect the creator of the work for 14 years or, if they acted to renew copyright, up to 28 years. After that, the work went into the public domain where anyone could use it. Lessig comments that “the effect of these extensions is simply to toll, or delay, the passing of works into the public domain.”¹⁴ “Thus, in the 20 years after the Sonny Bono Act, while 1 million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term.”¹⁵ We have moved away from the “cultural commons,” where ideas can be shared, distributed, improved — the original intent of Thomas Jefferson and the founding fathers. We have moved toward what Larry Lessig calls the “permission culture.” If you want to use something you must get permission first. The system used to be an opt-in system in which creators were required to register works to receive copyright protections. Since 1978, the system has changed from an opt-in system to an opt-out system.¹⁶ The bottom line for Lessig and others who share his mindscape is that the public domain is suffering and, by extension, creativity and innovation as well.

Creative Commons

What to do about it? Enter the Creative Commons. The Creative Commons Foundation, the innovative brainchild of an impressive list of lawyers, filmmakers, entrepreneurs, and publishers, came to be in 2001. The Board of Directors of the Creative Commons Foundation includes:

• Lawrence Lessig (chairman and professor of law at Stanford University)

• James Boyle (professor of law at Duke University)

• Michael Carroll (formerly an attorney with Wilmer, Cutler & Pickering and currently an assistant professor of law at Villanova University School of Law)

• Molly Shaffer Van Housweling (formerly the executive director of Creative Commons and currently assistant professor at the University of Michigan Law School)

• Hal Abelson (co-director of the MIT-Microsoft Research Alliance in educational technology and co-head of the MIT Council on Educational Technology),

• Eric Saltzman (attorney and filmmaker)

• Davis Guggenheim (director and producer of both documentary and dramatic films and television)

• Joi Ito (founder and CEO of Neoteny, a venture capital firm)

• Eric Eldred (editor and publisher of Eldritch Press)

The foundation’s goal is to build a reasonable copyright that encourages authors, filmmakers, photographers, and/or musicians to allow others to use their works by opting out of the onerous and burdensome requirements of existing copyright law. It seeks to create a system that promotes “balance, compromise, and moderation” with respect to copyrights and to “offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them….”¹⁷ Think of it this way. “Share what you want, keep what you want.”¹⁸ Their vision moves away from the restrictive “All rights Reserved”/ “No Rights Reserved” realities of current copyright law to a middle ground — “Some Rights Reserved.”

The inspiration behind Creative Commons came from Richard Stallman and the creation of the Free Software Foundation’s GNU General Public License (GNU GPL). Lessig and the Creative Commons board wanted to apply the same principles that Stallman had developed for software to text, film, audio, and images. They want to develop tools and resources for today’s authors, musicians, photographers, and filmmakers who want to share their work with others by specifying what people can and cannot use without permission. They aim “to increase the sum of raw source material online, but also to make access to that material cheaper and easier.” In thinking about this, they developed three important pieces that together make this goal achievable. The pieces include a commons deed — “a simple, plain-language summary of the license, complete with the relevant icons,” the legal code — the fine print that you need to be sure the license will stand up in court,” and the digital code — a machine-readable translation of the license that helps search engines and other applications identify your work by its terms of use.”¹⁹ The Creative Commons Web site [http://creativecommons.org] has all the licenses listed and information to help those interested in sharing their work to identify which license fits their specific needs and requirements.

Take a look at all the Creative Commons’ licenses. The licenses explain clearly what people can and cannot and provide examples of how to decide what kind of license to use. A series of discussion groups deal with questions about real-life experiences [http://creativecommons.org/discuss]. As with any new organization, there are bound to be growing pains, and Creative Commons is no different than any other new group. The discussion groups help identify issues and challenges that need to be addressed, worked through, and solved.

One of the really creative aspects of the Creative Commons licensing tools is the use of metadata embedded directly into the license itself. By utilizing metadata, based on RDF/XML specifications, the founders of Creative Commons support the vision of the Semantic Web. They also lend their support to developers to create tools (search engines and file-sharing applications) that take advantage of the embedded metadata and help the end user and the librarian find specific types of content — text, audio, video, film, speeches, music, and images. When this happens, we will all have an easier time finding and identifying materials to use in our own creative works.

How to Find and Identify Creative Commons Licensed Work

The Creative Commons Web site provides several different ways to identify and find works that have a Creative Commons license. Under the Find section of the Creative Commons home page, you will find a list of browsing and searching options. The browsing option is arranged by directories and then by type of media: audio, images, video, and educational. Although not comprehensive, the Common Content directory can be an effective way to browse for Creative Commons content.

You can also find new content, new announcements, interviews, and new tools via the Creative Commons home page and the Creative Commons blog. You can sign up for the newsletter and use an RSS feed for both the blog and for the site as a whole.

Searching for Creative Commons Content

Creative Commons also offers a search engine (powered by Nutch — an open source search engine) that lets searchers limit their search by type of format (audio, image, interactive, text, and video) and by different licensing options [http://creativecommons.org/find/]. You can search for works available for commercial purposes or for works that can be modified, adapted, or built upon. After you have done a search, the results will connect to Web sites that contain either the Creative Commons metadata or a link back to a Creative Commons license. Results display the licensing options that the owner has agreed to allow.

I did a search on “Glacier National Park” and limited results to include works that can be modified, adapted, or built upon. (Glacier National Park in Montana is one of the real national park treasures and a great place to go cycling — some really great climbs).

Results

Stephen’s Web ~ by Stephen Downes ~ Montana ... high up in Glacier National Park. A view from ... Downes Copyright © 2004 Stephen Downes National ... (v) http://www.downes.ca/photos/montana.htm

If you forget what all of the icons represent, the system provides a key that shows the icons and describes what each icon means. This is a very nice touch. Also, the search engine links (v) to a little program called ccValidator. This program inspects and displays license metadata associated with any page. Pretty cool.

Warning: Once you have identified a site that contains content that you might want to use, it is critical that you read the fine print of the license. You need to know if the author of the content is making one, some, or all content available under the Creative Commons license. Likewise, if you decide to publish your content under a Creative Commons license, it is in your interest to specify exactly what content you are making available under the Creative Commons license. Creative Commons provides a list of examples of what others are doing in this regard.²⁰

The Creative Commons search engine is a great way to learn about new Creative Commons content, but, unless you know about the search engine, Creative Commons content becomes essentially opaque to most end users.

Creative Commons Can Help

The browsing option reaches only a small sampling of Creative Commons licensed content. The Creative Commons team refuses to develop a comprehensive directory or database of Creative Commons content because they feel it undermines the vision of the Net — a distributed, decentralized network. Consequently, there is no complete directory. And this frankly is a real disappointment and a glaring weakness. I would argue that they should stop looking at the development of a directory/database as “a centralized, Soviet-style information bank controlled by a single organization” (the quote comes from Creative Commons FAQ — Is Creative Commons building a database of licensed content? [http://creativecommons.org/faq#faq_entry_3482]). Instead, they should consider a directory as a celebration of the work being done and, most importantly, a tool for the student, the musician, the photographer, and the entrepreneur in finding other content they need. If Creative Commons is not prepared to step up and create a complete directory/database of Creative Commons content, then maybe Yahoo! can fill this void. What better organization is equipped to develop a directory than Yahoo!? So ask Yahoo! to build a directory that will help all of us find Creative Commons content. If you ask, Yahoo! might just do it and it really needs to be done.

To answer my original questions, librarians now have a useful tool they can use to help identify content that patrons might want to use in a podcast, a mash-up, a collage, a video contribution to a blog, a document, a presentation, or whatever. It’s called Creative Commons and, with the vertical search opportunities provided by Yahoo! Search and Creative Commons’ own Nutch-powered search engine, we can assist end users in finding new content that allows them copyright flexibility. Use it. Promote it. Share it. It’s all good.

Endnotes

¹ There are some exceptions to federal government information and copyright. If you are a government contractor and you produce a report or presentation, the contract will determine if that information, even though paid for by the taxpayers, could be copyrighted. It is best to look and see if the information holds a copyright symbol.

² U.S. Copyright Office — Copyright Basics [http://www.copyright.gov/circs/circ1.html] (accessed April 30, 2005).

³ Timeline: A History of Copyright in the United States — Association of Research Libraries [http://arl.cni.org/info/frn/copy/timeline.html].

⁴ Creative Commons — About The Sampling Licenses [http://creativecommons.org/projects/sampling].

⁵ Music — Sampling Licenses [http://creativecommons.org/about/sampling].

⁶ Timeline: A History of Copyright in the United States — Association of Research Libraries [http://arl.cni.org/info/frn/copy/timeline.html].

⁷ Timeline: A History of Copyright in the United States — Association of Research Libraries [http://arl.cni.org/info/frn/copy/timeline.html] and Digital Law Online,
Professor Lee A. Hollaar, School of Computing, University of Utah [http://digital-law-online.info/lpdi1.0/treatise4.html].

⁸ Timeline: A History of Copyright in the United States — Association of Research Libraries [http://arl.cni.org/info/frn/copy/timeline.html].

⁹ Robert S. Boynton, “The Tyranny of Copyright?” The New York Times Magazine, January 25, 2005 [http://query.nytimes.com/gst/abstract.html?
res=F70B1EFB3F5D0C768EDDA80894DC404482], or [http://www.cepr.net/Economic_Reporting_Review/
nytimesarticles/tyrannycopyright.htm].

¹⁰ Timeline: A History of Copyright in the United States — Association of Research Libraries [http://arl.cni.org/info/frn/copy/timeline.html].

¹¹ Wikipedia, The Sonny Bono Copyright Term Extension Act of 1998, [http://en.wikipedia.org/wiki/
Sonny_Bono_Copyright_Term_Extension_Act] (accessed on April 29, 2005).

¹² Timeline: A History of Copyright in the United States — Association of Research Libraries [http://arl.cni.org/info/frn/copy/timeline.html].

¹³ Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, New York: The Penguin Press, 2004, pp. 133–134.

¹⁴ Free Culture, p. 134.

¹⁵ Free Culture, pp. 134–135.

¹⁶ Robert S. Boynton, “The Tyranny of Copyright?,” The New York Times Magazine, January 25, 2005 [http://query.nytimes.com/gst/abstract.html?
res= F70B1EFB3F5D0C768EDDA80894DC404482], or [http://www.cepr.net/Economic_Reporting_Review/
nytimesarticles/tyrannycopyright.htm].

¹⁷ Creative Commons — About Us [http://creativecommons.org/about/history]  (accessed on April 30, 2005).

¹⁸ Framasoft — Creative Commons: Let’s Be Creative Together (May 27, 2004) [http://www.framasoft.net/article2389.html#nb2] (accessed April 30, 2005).

¹⁹ Creative Commons FAQ — So what, exactly, does Creative Commons plan to do? [http://creativecommons.org/faq#faq_3310].

²⁰ Take a look at the page “How to Tag Works.” This page gives useful suggestions and examples of how authors and bloggers are tagging their pages with Creative Commons Licenses [http://creativecommons.org/technology/web].

²¹ Flickr — Creative Commons licensing options [http://www.flickr.com/creativecommons/].