"We speak of the importance of 'freedom,' yet we embrace a wildly protectionist view of copyright law."
by Jane Ruddick
SLIS Alumni Magazine, Spring 2002
Americans have to find a balance between intellectual property and the public domain, says Stanford Law Professor Lawrence Lessig, who's working on a project designed to find that middle ground.
"We are a house divided, we Americans, when it comes to our views about how culture gets built and creativity gets encouraged," he says. "We speak of the importance of 'freedom,' yet we embrace a wildly protectionist view of copyright law."
Lessig's new venture, Creative Commons, seeks to offset such extremism by offering an alternative to traditional copyrights and a compromise between full copyright control and the unprotected public domain. The nonprofit corporation plans to provide flexible intellectual-property licenses that can be customized, allowing writers, artists, and others to define the legally acceptable uses of their work.
As their work moves into the public domain, creators of intellectual property could establish some protections, such as specifying that their work cannot be altered or used for commercial purposes. It's merely a matter of these innovators' selecting their options online and receiving made-to-order licenses without having to pay legal fees.
That's not to say Creative Commons will settle problems with copyright law, which are most likely to be resolved through legal and legislative actions, according to SLIS assistant professor Howard Rosenbaum.
"Creative Commons will co-exist, probably with some degree of tension, alongside the copyright and patent regime," he says. "The nature of this co-existence is murky at the moment."
One issue the proposal raises is the nature of the public domain, typically considered a realm in which property rights belong to the community at large, meaning intellectual property is subject to appropriation by anyone.
"If these licenses stand up in court," says Rosenbaum, "it would seem to set a precedent for redefining the public domain as a space within which limited sets of rights may be attached to intellectual property."
"Librarians will have to learn about these licenses and treat works accordingly," he adds. "This will probably become more difficult and take more time as they encounter the wide range of customizable licenses that owners of intellectual property will be able to create."
Yet he also calls Creative Commons a "reasoned response" to recent developments in the realm of copyright and patent laws.
"Commentators assert that the pendulum is swinging back in the direction of copyright holders as their protections are extended seven decades beyond the life of the copyright holder," Rosenbaum says. "Lessig and others argue this has a chilling effect on innovation and that Creative Commons is one way to offer what may turn out to be a practical alternative to existing laws."
At the same time, Lessig and his colleagues plan to establish a conservancy as part of Creative Commons, along the lines of the Nature Conservancy. Its purpose is to preserve intellectual property and, like SLIS professor Rob Kling's Guild Publishing Model (see related article), to make it more accessible. Both the conservancy and the customizable licenses for intellectual property are based on the paradigm of the commons - the idea that society benefits from protecting some resources and making them freely available.
It's not yet known whether the proposal will actually work. "This is hard to say," says Rosenbaum, "since the organization has not yet made public the details of the plan. The concept is intriguing, but its implementation is a challenge whose resolution we will not be privy to for several months."
Related SLIS News Article:
Posted May 03, 2002