Imagine that this is a Panglossian best of all possible worlds and that any piece of intellectual property would carry a machine-readable license. Imagine that writers, artists, programmers, and musicians would be able to create these terms of use licenses with a sort of a software black box, without lawyers, and free of charge. Call it an intellectual property license vending machine. Ask Stanford law professor Lawrence Lessig and he’ll call it the Creative Commons.
According to Hal Plotkin’s SF Gate story, the Creative Commons will allow creators of intellectual property to structure customized licenses for their projects, defining precisely how their work can be used. Think of it as occupying the broad middle ground between public domain on one extreme and full copyright control at the opposite extreme, a sort of electronic intellectual property licensing dial with an almost infinite range of settings between the two poles. Best of all, these customized licenses will be available at no charge. A writer would be able, for example, to create a custom license that would allow the redistribution of his work in unaltered form for noncommercial purposes. Any commercial use of the work would have to be negotiated with the author, or better yet, terms for commercial use of the work can be included in the Creative Commons license.
One of the more interesting aspects of the Creative Commons is that Lessig intends to make the licenses machine-readable. This will likely be accomplished by adding a machine-readable tag, similar to the ID3 tags associated with .mp3 files, to each licensed document or collection of bits. The license tag will specify the licensing terms for the material and should make the work searchable by license type.
Creative Commons also plans an electronic conservancy for intellectual property. Owners of orphaned software, for example, could donate it to the conservancy (and probably obtain a tax break) where other developers could maintain and enhance it. Lessig insists that this will contribute to and enhance innovation. Such a development might go a long way toward getting large organizations to use open source software. Not only would the sometimes unclear licensing and ownership issues be clearly resolved, at least marginal assurance would be provided that the software would continue to be updated and supported if the original developer abandons it. Clear licensing and ownership statements will also likely increase the level of developer participation in some open source projects.
Intellectual property law has outlived its usefulness. Originally intended to balance the interests of innovators while simultaneously ensuring that those innovations were available for practical use, intellectual property law has transmogrified into a corporate annuity, something that was never intended by the framers of the Constitution. Lessig articulates the problem in his latest book, The Future of Ideas: The Fate of the Commons in a Connected World.
Some questions regarding the Creative Commons are inevitable. These questions were posed to the Creative Commons executive director, who did not respond (which in itself raises a whole other set of interesting questions).
I’m not clear how a Creative Commons license would provide an alternative to copyright. If copyright attaches to any work at the time it is created, wouldn’t the Creative Commons license be merely that, a license to a copyrighted work?
As a writer, the last thing I want is for my work to fall into the public domain. Yet, that’s one of the things that Creative Commons is proposing. My understanding is that any work that is in the public domain cannot be licensed, nor can distribution or use be governed in any way.
The technical nature of the machine-readable language has not been disclosed. Will the underlying protocols be open to third parties? Is any sort of digital rights management or license enforcement functionality planned?
If creators of intellectual property can create Creative Commons licenses at no charge, and, presumably, consumers of intellectual property covered by Creative Commons licenses aren’t charged for their use, how will Creative Commons be sustainable as a business?
Serious questions all, but the last two are the most compelling. I don’t have the technical abilities to address the former, but I have some pretty good ideas about the latter.
Freelance writers have been screaming for years for some sort of rights and royalties clearinghouse similar to what songwriters and composers have in ASCAP. Creative Commons could easily serve this function, becoming sustainable by taking a percentage of rights and royalties it clears for creators of intellectual property.
I’m very interested in the Creative Commons idea, but it’s vitally important that the business model for such an endeavor be sustainable. If it’s not, the damage left when it inevitably fails will be far worse than the terrible situation we have now. It’s early—reports indicate that Lessig doesn’t intend to launch until May—and hopefully these and other issues will be fully and openly addressed by then.
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