On Creative Commons

I’m thinking about Creative Commons these days, prompted only partly by Larry Lessig’s struggle to understand why some in the entertainment and publishing industries are so hostile to the notion that authors and creators should have real authority and power over what becomes of their works.

I’m just starting out with this, but here are two thoughts.

The first one has to do with the concept that Creative Commons licensing builds on the tools that the existing copyright system provides. That’s not quite right. In at least a couple of ways — giving the creator the power over “attribution” rights, and in attaching the license to the work so that it arguably binds downstream users even in the absence of assent to the license — CC licenses go beyond the norms of conventional copyright law. CC licensing isn’t just building with copyright tools; in some respects it provides a better set of tools. That shouldn’t make CC licenses bad or evil or harmful (CC tools are market-oriented tools, for example), but I think it explains some of the hostility to CC. Established players may think that they’re being told that they’ve built businesses on the wrong normative framework! Who wouldn’t feel threatened by that message (even if it isn’t the message that CC is trying to send)? The fact that CC licenses use a different set of tools also means that supporters of CC need to continue to think hard about the legitimacy of CC licenses, and to respond thoughtfully (as Larry typically does) to challenges.

The second one has to do with the internationalization of Creative Commons. It’s one thing to set up a information rights regime that, in a lot of ways, substitutes for domestic copyright law. But does internationalizing CC, even with country-specific adaptation, lead us toward a private international law of information? Is international copyright policy emerging internationally at two levels simultaneously — one the public environments in which the U.S. hectors its trading partners about piracy, and the other the private environments in which CC licenses and open source licenses percolate? If that’s true, do we need to be thinking about whether and how those two levels are compatible?

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