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Copyright Doesn’t Have to be All or Nothing: Intellectual Property Rights and Creative Commons

, Monday, February 23rd, 2009

Copyright, according to the US government is:

a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

And it is automatically secured as soon as the work is created in a “fixed form,” whether or not the author formally registers.

Understandably, many people find this a little…confining.

It’s always been possible to quote written works and to use them as inspiration for one’s own writing, with appropriate citation.  If it weren’t, no college student would ever be able to write a research paper, as the very concept requires supporting evidence.

Things get a little murkier in other media, though.  Hip-hop and rap music are founded on sampling beats.  Visual images are used to illustrate points online and in public presentations all the time.  Jazz “standards” are called standards for a reason – every working jazz musician knows and can perform those tunes at the drop of a hat, or of a spontaneous jam session.  Whole communities write fan fiction around existing imaginary universes.

Most of those things don’t meet the official definition of “fair use”:

Section 107 [of the US Code] contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.  Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Which definition, you will note, is very vague (even the US Copyright Office admits this).  Fair use was famously invoked for a reprint of 300 words from President Gerald Ford’s 30,000 word speech pardoning Richard Nixon – and it was not successful.

The whole idea of copyright, fair use, and intellectual property rights exploded into popular consciousness with the release of DJ Danger Mouse’s Grey Album, which was a mashup of the music from the Beatles’ White Album and vocals from Jay Z’s Black Album.  Mashups have been a regular practice of live performances by club DJs for years, but this was actually released as an album.  EMI, holder of copyright to the White Album, went ballistic.

Enter into this morass Creative Commons.  Founded in 2001, the purpose of Creative Commons is to:

[make] it easier for people to share and build upon the work of others, consistent with the rules of copyright.
[Creative Commons provides] free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.

In other words, creators of original works can now reserve SOME rights to their works.

These options can be combined in a variety of ways to allow the author to decide whether and how other people can re-use her original work.

Simple idea – big impact, with over 130 million works currently estimated to be covered by Creative Commons licensing.

So you have no excuse not to get out there and collaborate!

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