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Whitehouse.gov Adopts Creative Commons License

| Nov 20, 2009 | IP and Technology

The Obama Administration wasted no time in signaling that its new era of openness and transparency extends to its presence on the Web.  A redesigned Whitehouse.gov was launched at 12:01 p.m. on January 20th.  With the stipulation that all third-party content on the site is licensed under a Creative Commons “Attribution License,” the Administration also signaled its recognition of the benefits of collaboration.  The Creative Commons license permits anyone in the world to legally copy, distribute, use, adapt, and otherwise exploit the web site’s user-generated content in any way — for free — as long as proper attribution is given.

Creative Commons Outreach Manager Fred Benenson pointed out that while federal works are not themselves eligible for copyright protection, what’s significant about the White House move is that visitors to the web site agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov.  “Obama’s far-sighted choice should serve as an example for other governments around the world: now is the time to start sharing,” Benenson added.

Many in the creative rights and arts community applauded the White House move for the visibility and support it gave to Creative Commons — a charitable corporation whose mission is to promote the use of copyright licensing to foster collaboration and creativity.  Although some artists may not yet be familiar with Creative Commons, anyone currently using or considering using the Internet to distribute or promote their work or to collaborate with other artists should note the name.  The ready-to-use copyright licenses developed by Creative Commons can be a simple and effective way for artists to protect their copyrighted work while also permitting others to duplicate, modify, and otherwise interact with their work in ways the artist decides are appropriate.

U.S. copyright law affords any creator of an expressive work several exclusive rights, known generally as copyright, with respect to that work.  Copyright in an expressive work vests automatically at the moment the work is created and “fixed in a tangible medium of expression” by the author.  Timely registration of one’s copyrighted work with the U.S. Copyright Office affords the author certain valuable rights, including the right to sue to collect statutory damages for infringement and to stop further infringement.  For example, when a musician records a song, copyright law automatically gives that musician the exclusive right to, among other things, duplicate, distribute, and sell that recording, and timely registration of the musician’s copyright in the recording also would allow the musician to sue in federal court to stop others from doing any of those things without the musician’s permission and to collect damages if they do.

There are times, however, when a copyright holder may want to give up some control over a work and to allow someone else to use it.  The legal term for permission given by a copyright holder to another to exercise some portion of the copyright holder’s exclusive rights is a license.  Ideally, this would take the form of a written license agreement.

For example, a musician might allow a filmmaker to use a piece of music in a movie.  The value of a well-drafted written license agreement is that it affords the person giving permission (the licensor) the ability to sue the person receiving the permission (the licensee) if the licensee either does not comply with the terms of the agreement or attempts to exercise more rights than the terms of the license permit.

While licensing usually occurs when a copyright holder seeks to commercially exploit his or her creation, in some cases an artist may want to distribute work for free, or may want to permit others to modify or adapt the work, also for free, as a way of encouraging further creativity or gaining exposure. Unfortunately, when it comes to disseminating creative work on the Internet, artists may feel that they are faced with an all-or-nothing choice: either to completely restrict all use in order to protect their work, thereby stifling collaboration and further creative use of it; or to sacrifice all control over the work to allow collaboration, which most artists are hesitant to do.

Creative Commons believes that this dilemma can be resolved through the use of simple copyright license agreements that reach a middle ground between the two extremes.  The group has developed a set of ready-to-use, written license agreements that allow creators to permit anyone in the world to exercise certain rights with respect to their work, while also giving the creator control over what those rights are and the rules that will apply.  Creative Commons sees this as a way for artists to take advantage of the tremendous opportunities for collaboration afforded by the Internet and other new technologies, while also retaining an appropriate level of control over their work.  Creative Commons has developed six forms of copyright licenses that anyone can use without charge.

The six licenses use three basic elements in various combinations to offer different ways for creators to control how people interact with their work.  The three basic elements are attribution, commercial use, and the right to use the original work in new creations (these new creations are known in copyright law as “derivative works”).  For example, the least restrictive Creative Commons license (the type used by the Obama transition team) is known as the “Attribution License”–its terms allow any licensee to duplicate, distribute, or create derivative works from the original work, even for commercial purposes, as long as the licensee gives proper attribution to the original creator of the work. On the other end of the restrictiveness spectrum is the “Attribution Non-Commercial No Derivatives License,” which allows others only to duplicate and distribute the original work, with proper attribution, for noncommercial purposes.  It also expressly prohibits the creation of derivative works.  The other four Creative Commons licenses use various combinations of these three basic elements.  Two of the licenses also incorporate a term known as “Share Alike”– this requires people who use an artist’s work for the creation of derivative works to in turn license those derivative works to the public under terms identical to the original license they received.  Finally, one feature all of the Creative Commons licenses have in common is that they do not require any licensee to directly pay the licensor in exchange for the rights given to them.

Many important legal implications result from the use of Creative Commons licenses, so artists and copyright holders should fully understand all the terms of a Creative Commons license before using one in connection with making their creative work available to the public. The Creative Commons licenses are not tailored to the circumstances of each individual user, so, in some cases, use of a Creative Commons license may not be appropriate.  However, for up-and-coming artists or people interested in taking advantage of collaborative opportunities without giving up all control over their copyrighted work, a Creative Commons license may be a good fit.  Plenty of useful information, in addition to the licenses themselves and instructions on how to properly use them, can be found at the Creative Commons web site at www.creativecommons.org.