Professor Brian Fitzgerald
Australian Catholic University
15 June 2012
Copyright
 General rule = You need permission/licence to
“exercise exclusive economic rights of copyright
owner” unless the law provides otherwise
Creative Commons is…
 About copyright
 A copyright licence
 Cannot exist without copyright
Creative Commons is…
 A new way of managing copyright
 “Emblematic” of a freedom to share our own copyright
(Why share? – leads to better outcomes/innovation? –
other motives?)
Creative Commons is not…
 Anti-copyright
 A copyright abolitionist movement
Background
 Based on the “free” software and open source
software (FOSS) “copyright” licences like GNU
GPL and BSD
 Free as in speech not free as in beer
 GNU GPL – Richard Stallman – licence use of and
share source code = human readable - on the
condition that if you use my code and distribute it
– you must share modifications (improvements?)
with the recipient (community?) – called Copyleft
How does CC work?
 CC is a permission to use (reproduce, distribute and
publicly perform) copyright material – literary,
dramatic, musical, artistic works, films, sound
recordings, broadcasts and published editions
 On certain conditions
Key Terms
 Mandatory - Attribution (BY)
 Optional – Noncommercial (NC),
No Derivatives (ND), Share Alike (SA)
 ND and SA cannot be used together
Licences
BY
BY-NC
BY-SA
BY-ND
BY-NC-SA
BY-NC-ND
Licences
Baseline Terms
 Attribution – Name of author and other Attribution
parties, Copyright Notice, Title of the work and
Licence URL, Identify changes made (where
applicable)
 No suggestion of endorsement
 Keep notices that refer to Licence or Disclaimers
Baseline Terms
 No terms limit permitted use of material and No TPM




applied
Need Permission for Acts Beyond the Licence Given
Licence Specific Restrictions – NC, ND, SA
Fair dealing still exists
Moral rights still exist
 Wikipedia
 Flickr
 YouTube
 2010 Federal Budget
Papers licensed under CC
Attribution 2.5
Australia
 2011 and 2012 Federal
Budget Papers under CC
Attribution 3.0 Australia
Attribution
Attribution
 “In a manner reasonable to the medium you are using”
 Copyright Notice, Creator’s Name, Other Attribution
Parties, Licence (URL/hyperlink), Source and Title of
Work (URL/hyperlink)
Noncommercial
Noncommercial
 Clause 1 Attribution-Noncommercial-Share Alike 3.0
Australia – “Commercial” means primarily intended
for or directed towards commercial advantage or
private monetary compensation.
Noncommercial Study
 CC has released guidelines and done a recent study on
the meaning of this term. There are some clear cases of
what is non commercial – private and domestic use –
and some clear cases of commercial use – corporations
using the material to gain revenue.
 Defining “Noncommercial”: A Study of How the Online
Population Understands “Noncommercial Use,
http://wiki.creativecommons.org/Defining_Noncomm
ercial
Adam Curry v Audax (2006)
 Photos from Flickr published in a magazine sold
commercially – Netherlands
 Court said no permission and no licence to use the
photos - as this was commercial use
No Derivative Works
No Derivative Works
 Clause 1 Attribution-No Derivative Works 3.0 Australia
– “Derivative Work" means material in any form that is
created by editing, modifying or adapting the Work, a
substantial part of the Work, or the Work and other
pre-existing works.
No Derivative Works
 Derivative Works may, for example, include a
translation, adaptation, musical arrangement,
dramatisation, motion picture version, sound
recording, art reproduction, abridgment,
condensation, or any other form in which the Work
may be transformed or adapted…
 …except that a Collection will not be considered a
Derivative Work for the purpose of this Licence.
Share Alike
Share Alike
 Clause 4B(a) Attribution-Share Alike 3.0 Australia –
You may only Distribute or publicly perform a
Derivative Work if You apply one of the following
licences to it:
 i) this Licence;
 ii) a later version of this Licence with the same Licence
Elements (such as Attribution-ShareAlike 4.0 Australia);
or
Share Alike
 iii) a Creative Commons Unported licence or a licence
from another jurisdiction (either this or a later version)
that has the same Licence Elements; or
 iv) a Creative Commons Compatible Licence. (* note
this last option is not available in CC BY NC SA 3.0
Australia)
Legal Validity of Licences
Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)
“The District Court interpreted the Artistic License to permit a user to ‘‘modify the material in any
way’’ and did not find that any of the ‘‘provided that’’ limitations in the Artistic License served to
limit this grant. The District Court’s interpretation of the conditions of the Artistic License does not
credit the explicit restrictions in the license that govern a downloader’s right to modify and
distribute the copyrighted work. The copyright holder here expressly stated the terms upon which
the right to modify and distribute the material depended and invited direct contact if a downloader
wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the
objectives of the open source licensing collaboration, including economic benefit. Moreover, the
District Court did not address the other restrictions of the license, such as the requirement that all
modification from the original be clearly shown with a new name and a separate page for any such
modification that shows how it differs from the original.
Copyright holders who engage in open source licensing have the right to control the
modification and distribution of copyrighted material. As the Second Circuit explained in
Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir.1976), the ‘‘unauthorized editing of the underlying work, if
proven, would constitute an infringement of the copyright in that work similar to any other use of a
work that exceeded the license granted by the proprietor of the copyright.’’ Copyright licenses are
designed to support the right to exclude; money damages alone do not support or enforce that right.
The choice to exact consideration in the form of compliance with the open source
requirements of disclosure and explanation of changes, rather than as a dollar
denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of
damages is inherently speculative, these types of license restrictions might well be rendered
meaningless absent the ability to enforce through injunctive relief.”
Who uses CC?
 Many different individuals e.g. Trent Reznor ...
 See search.creativecommons.org
 Advanced functions in search engines (machine
readable)
 Institutional adopters - such as – Flickr (200 million
photos) – Wikipedia – more recently YouTube Education (MIT), research (PLOS), cultural (ABC),
government (Australia, beyond)
How do people use CC?
 Licensing out – distributing your work under a CC
licence - eg Cory Doctorow science fiction book
 Licensing in – use CC as a resource - eg use of CC
licensing scream in Children of Men a Hollywood film;
students in university using CC material in their
projects
Children of Men
 Freesound scream used in the movie
 http://www.freesound.org/people/thanvannispen/soun
ds/9432/
Iron Man
ABC Pool
 http://pool.abc.net.au/
Key Criticisms
 Vague nature of Non Commercial term
 Licence lasts for the term of the copyright? Licensor
may change mind? Take it down – with what effect?
 Can it be revoked by licensor? In practice – even if
possible – not allowable where there is an estoppel?
 Is enough guidance given to users of the licence?
Education and support services?
Permission for Copyright Only
 Do other rights need to be cleared?
 Issue over photos
 See Chang v. Virgin Mobile USA, LLC, 2009 WL 111570
(N.D.Tex. January 16, 2009)
Bio
Professor Brian Fitzgerald BA (Griff) LLB (Hons) (QUT) BCL (Oxon.) LLM (Harv.)
PhD (Griff)
Brian Fitzgerald studied law at the Queensland University of Technology
graduating as University Medallist in Law and holds postgraduate degrees in law
from Oxford University and Harvard University. He is well known in the areas of
Intellectual Property and Internet Law and has worked closely with Australian
governments on facilitating access to public sector information. From 1998-2002
he was Head of the School of Law and Justice at Southern Cross University in New
South Wales, Australia and from January 2002 – January 2007 was appointed as
Head of the School of Law at QUT in Brisbane, Australia. From 2007-2102 he was a
specialist Research Professor in Intellectual Property and Innovation at QUT and
is a Chief Investigator with the ARC Centre of Excellence for Creative Industries
and Innovation. Since March 2012 he has been the Executive Dean of Law at
Australian Catholic University (ACU)
http://www.acu.edu.au/courses/law/deans_welcome/