Creative Commons Licences, the Copyright Regime and the Online Community: Is there a Fatal Disconnect?
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00858.x |
| Author | Susan Corbett |
| Date | 01 July 2011 |
| Published date | 01 July 2011 |
THE
MODERN LAW REVIEW
Vo l u me 7 4 J u ly 2 0 1 1 No 4
Creative Commons Licences, the Copyright Regime and
the Online Community: Is there a Fatal Disconnect?
Susan Corbett
n
Creative works on the Internet (online works) present challenges to the traditional copyright
model. Creative Commons licences are one responseto these challenges. Despite the many posi-
tive features of Creative Commons licences, certain aspects have attracted criticism.The £aws in
Creative Commons licences are a symptom of abroader failure of the copyright system itself to
engagewith the community.CreativeCommons licences operatewithin the traditional copyright
model,despite having some resonance with a developing copyrightparadigm.Yet manyconcepts
of copyright are not understood by the wider community; indeed, some remain a source of
ongoing debatewithin the legal academy. Furthermore, there is evidence that community norms
and expectations in relation to online works con£ict with the legal environment provided by
copyrightlaw.The author argues thatuntil these issues are addressed, an attemptto reconceptualise
the legal environment by working withinits constraints is unlikely to be successful.
COPYRIGHTAND CREATIVECOMMONS
Creative Commonslicences were developed as a responseto a challenge presented
by online creativity; how can an author distribute creative material that is
protected bycopyright in a way that adds to, rather than detracts from, the com-
mons?
1
Traditionally copyright law has sought to maintain a balance between
public and private interests by including statutory provisions that allow limited
and speci¢c uses of a copyright work during its term of protection without the
consent of the copyright owner.
2
This balance, although somewhat precarious
n
Senior Lecturer in Commercial Law,Victoria University of Wellington. I am grateful to my two
anonymousreferees for their helpful advice and also to Susy Frankel, AmandaReilly,Alexandra Sims,
Trish Keeperand Nessa Lynch for commentson earlier drafts; any mistakes are the author’s own.
1Where commons is understood to mean ‘content that can be used by the public and potential
future creators’: S. Dusollier,‘The Master’sTools v. The Master’s House:Creative Commons v.
Copyright’(2005- 06) 29 ColumbiaJournal of Law & theArts 271,274.
2For example, in both New Zealand and the UK the permitted uses include fair dealing with a
work for the purpose of criticism, review, reportingcurrent events, research (which must be for
non-commercial purposes in the UK) and privatestudy, as well as certain educationala nd library
uses, adaptationsfor sight-impaired users, etc:s ee the CopyrightAct 1994(NZ), Pt III;Copyright,
Designs and Patents Act1988 (UK), Ch III. In US copyrightlaw,‘fair use’is less speci¢c than fair
dealing and hence has a broaderapplication than fair deal ing,b ut other permitted uses are s imilar
to those i n New Zealand a nd UK copyright law: Copyright Act1976 (US),yy 107^122.
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(4) 503^531
and arti¢cial, is further maintainedby providing a limited term ofcopyright pro-
tection duringwhich the private economic incentive can berealised.
3
The two dominant theories that have divided copyright scholars for some
time, utilitarian theory and natural rights theory, have each justi¢ed this balance,
albeit in contrasting ways.
4
Utilitarian theorists assert that the private economic
incentive forauthors and publishers to create new works that is provided by copy-
right protection mustbe balanced againstthe public interest in accessto creativity,
culture and information works.
5
Conversely, natural rights theorists have more
diverse rationales for supporting the traditional copyright balance.
6
Those most
commonlycited are adherents of John Locke’s labour theoryof property,
7
which
argues that although everyone has a natural property right to the results of their
own labour, nevertheless, all property rights are limited by the rights of others to
the common stock of property.
8
Other natural rights theorists argue from the
perspective of democratic dialogue, contending that if permitted to become a
monopoly, copyright might unduly l imit subsequent dis course on matters ess en-
tial for democracy.
9
Yet another school of thought contests the notio ns of ‘origin-
ality’ and author’ that dominate the copyright paradigm and operate from a
presumption that‘authors createsomething from nothing’.
10
The naturaloutcome
of such reasoning, if correct, would be that authors should be provided with
strong copyright protection, similar to the monopoly protection provided by a
patent. Hence, what Jessica Litman describes as the risk of ‘granting broad and
overlapping property rights in the subject matter of copyright’ is forestalled only
by acknowledging the need for public good uses and the public domain.
11
Nowthat creative works can be readily created in digital formats and displayed
online, many scholars argue that the traditio nalc opyright balance is i nappropriate.
These scholars appear to be turning away, at least partially, from the dominant
paradigm of two mainstream theories competing for in£uence upon copyright
laws and policies. Instead these scholars embrace a more recent notion, which
argues that engagement with social science literature can provide a nuanced
approach to copyright theory that is more in keeping with modern creativity
and culture than an exclusive adherence to either utilitarian or natural rights
3This has been the case since the ¢rst copyright laws:in England, the Copyright Act1709,8 Anne
c.19 and, in the UnitedStates, Art 1,cl 8 s 8 of the United States Constitution, and the Copyright
Act 1790.
4See J.E. Cohen, ‘Creativity and Culture in CopyrightTheory’(2007)40 UC Davis L Rev 1151,
1155; S. Breyer,‘The Uneasy Case for Copyright:a Study of Copyright in Books, Photocopies
and Computer Programs’(197 0) 8 4 HarvardLaw Review 281, 284^291.
5For a seminal work on the utilitarian theory for copyright, see W. Landes and R. Posner, ‘An
Economic Analysis of Copyright Law’(198 9) 18 JournalofLegalStudies325.
6Some scholars consider that the variety ofmean s employed by natural rights theorists to justify
copyright limitations has a net e¡ect which is somewhat unconvincing: see H. Breakey,‘Natural
Intellectual Property Rights and the PublicDomain’(2010) 73 MLR 208, 209.
7J. Locke,‘Second Treatise of Civil Government’ in P. Laslett (ed),Locke:TwoTreatises of Government
(Cambridge,Cambridge University Press, 3
rd
ed,1968) yy 26, 27
8See for exampleW. J. Gordon,‘A Property Right in Self-Expression:Equality and Individualism
in the Natural Law of Intellectual Property’(1993 ) 12 Yale LawJournal 1533,1544^1545.
9For example,see R. Coombe,‘Objects of Propertya ndSubjects of Politics:Intellectual Property
Laws and DemocraticDialogue’(1991) 6 9 Texas L Rev 1853.
10 J.Litman, ‘ThePublic Domain’’(19 90 ) 39 EmoryLaw Journal 965.
11 ibid10 12.
Creative CommonsLicences, the Copyright Regime and the Online Community
504 r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
(2011) 74(4) 5 03^531
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