Creative Commons and the modernization of copyright / Creative Commons i modernizacja praw autorskich

(English below)
Ważnym elementem zakończonego niedawno zjazdu Creative Commons w Buenos Aires była jednodniowa mini-konferencja dotycząca związków Creative Commons i reformy prawa autorskiego. Centrum Cyfrowe Projekt: Polska i nasz polski oddział Creative Commons był współorganizatorem tego wydarzenia, w którym udział wzięło ponad 100 działaczy Creative Commons i organizacji partnerskich z całego świata.
Oto notatki z mojego wystąpienia w trakcie konferencji. (Więcej na temat zjazdu, w tym mini-konferencji i jej kontekstu, można przeczytać na blogu Creative Commons Polska).

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A mini-conference on Creative Commons and copyright reform was an important part of the recent Creative Commons Global Summit in Buenos Aires. Centrum Cyfrowe Projekt: Polska, as the Polish affiliate of CC, was involved in the organization of the mini-conference, which brought together over 100 CC activists and affiliates.
Here are the notes from my presentation at the conference. (You can read our relation from the Summit, in Polish, on the CC Poland blog).

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In order to think about the role that Creative Commons (CC) should play with regard to copyright reform, it is not enough to think about activities that are being conducted or could be conducted by members of the CC community today. We need to think most importantly about the goals and principles of our shared effort – to ask ourself the question, why we are doing it? The answers would probably vary, but most of them would relate either to the concepts of a broadly understood public domain and common good that need to be strengthened, extended and defended; or to a belief in freedom of sharing and reusing or remixing content.
At the same time, another argument can often be heard, which is an argument about CC licenses providing flexibility in the copyright system, and being a trusted and efficient mechanism for creators and rights owners. This is a pragmatic argument that is usually agnostic towards the issue of copyright reform. I think this argument is insufficient as it confuses means with ends and looses track of the greater values and goals mentioned before. Thus I see licensing as an activity that not only achieves a pragmatic goal of making a work more freely available, but also as a signalling method – each use of a license is a vote for copyright that is more flexible, less restrictive, and more supportive of the abovementioned values. This is the vision of CC as not just an individual tool, but a mechanism that proves what Jeremie Zimmermann rightly describes as the „support of millions of people” for openness, but also for reform – support expressed through the use of our licenses.
I believe that the fact that CC licenses have both a „productive” and a „signalling” function makes them unique as a tool for social change. One that is very effective, elegant, and fair. Naturally, users of licenses vary in the extent in which they use them to support reform and some might not care about it at all. But they nevertheless make a statement by supporting a solution that’s more free and open than the baseline legal standard.
The second point I want to make, is that we need to differentiate between providing tools for voluntary use by rights owners and those situations, where we have a normative position and believe CC licenses should be used. It is interesting to note that a lot of the more active communities that make use of our licenses don’t limit themselves to promoting voluntary use of open licensing. Even within the CC community, many of the affiliates follow this approach and our general policy on many issues – such as open education – is also normative. This has been very well described by Paul Keller as an offensive incentive to clarify the relationship between CC licensing and copyright reform.
In Poland, this year the government introduced a proposal, prepared with the support of the CC Poland team, for a Bill that would introduce a general rule of openness for publicly funded resources. Such a rule is in my belief the most strongly expressed „offensive” sentiment within our community – and there seems to be a general consensus that strong open licensing makes a lot of sense for content that is publicly funded. Based on our Polish experiences, I believe that once such a position is expressed, CC advocacy becomes „political” in a way that it is not when limited to „neutral” stewardship of voluntary licensing by others. It is of course a different approach than that based on copyright reform, but is seen – especially by opponents – as a similar type of activity. In such a situation as we face in Poland, I believe that we simply are no longer in a place where we distinguish open advocacy and copyright reform advocacy as different modes of action.
At this point, I want to stress the fact that this does not seem in any way to burden the promotion and stewardship of voluntary open licensing – and I believe that a fear of this happening is one of major reasons for which we have been avoiding involvement of CC in copyright reform activities. In Poland, we still succesfully convict many communities – the educational sector, non-governmental organizations, scientific community and slowly also the cultural sector to voluntarily use CC licensing.
So I believe that CC licensing and advocacy for copyright reform should be seen as two different tools for achieving the same goals: the values I defined initially. I also believe that we can gain a lot from working in parallel with both methods – for example promoting open licensing in education and strengthening user rights by educational exceptions and limitations. Both approaches have their merits and faults, and usually they compliment each other (I think we still don’t have, and do need, a comparison of these two approaches).
I also think there are situations, in which being agnostic to legislative measures and law reform can mean a lost opportunity. To give one example, we have in Poland an ongoing debate on the conditions under which Public Sector Information is made available (also for reuse). There is a strong case to consider much of such content as exempt from copyright law – as this is already the case, based on the Polish Copyright Act, with strictly defined official documents and materials. If we limit ourselves to a licensing-based approach, we will either have to support a solution that offers less rights than the alternative (a no copyright rule for PSI), or we have to avoid becoming involved in this debate. The second solution is available only in principle – in Poland, and I assume the case is similar in other countries, the broadly understood „digital rights” community is so small, that organizations cannot afford to not become involved.
Looking at this example, and thinking about CC’s newer tools – the CC0 mechanism and the Public Domain Mark – one should also realize, that in fact CC is no longer supporting just a license-based approach at the level of legal tools. And to give one more example of the necessity of involvement in copyright reform, in Poland for CC0 to work, we need to allow rights owners to waive copyright – something that is today not allowed by law. Such reform is much needed for CC0 to fully function, and goes quite far beyond stewardship of open licensing – and is immediately perceived as „political”.
Cathy Casserly in her introductory comment mentioned a crucial issue of leadership in copyright reform efforts – there are other organisations and communities more suited to take lead on this matter. I agree with this. But if we shift perspective and focus upon the „open community” (including, among others, WIkipedians, Mozzilians, OKFN and its affiliates, OER or OA advocates, and so on) – CC can play a leading role in making this community understand better the stakes of copyright reform, and in making it involved. The reason for this is that of all the members of the open community, CC to the greatest extent, and one could say almost exclusively, focused on the legal layer of the open movement. If licensing mechanisms are used, these are usually CC licenses. Other members of the community focus to greater extent on other aspects, such as community building or content creation – it would be good to define our role vis a vis these organizations and communities as the ones that explain the stakes and importance of legal activities, including copyright reform.

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