Cape Town workshop introduces new ideas for Creative Commons

Filed under: General — Heather Ford @ 11:43 am

One of the most exciting things that came out of the APC’s Tuesday ccSA workshop in Cape Town was a discussion around derivative works. Philipp Schmidt from Bridges.org explained that his organisation used a cc licence that didn’t allow derivatives, but that they still wanted to encourage derivatives like translations and transporting into formats for sensory-disabled people. It seems that there has been a lot of interest in ’splitting’ up derivatives into different types – especially since there is so much value in translation and ‘porting’ to braille and other formats.

We are therefore making a submission to cc HQ that authors can choose which types of derivative works they want to allow. Thanks to Bridges.org for hosting us and for those who participated for the great insights!

An open invitation to culture-jamming with Laugh It Off

Filed under: Featured Content — Heather Ford @ 11:35 am

gilLaugh It Off’s ‘culture-jamming’ ideals reached full circle last week when they released their latest annual under a licence that permits the same kind of copying and re-mixing that has made the small company famous.

The Creative Commons copyright licence allows people to copy, distribute, display, perform and re-mix the annual for non-commercial purposes. Creative Commons is a non-profit started in the United States by internet law guru, Lawrence Lessig that has developed the legal framework for copying, sharing and re-mixing copyrighted works according to conditions set by the author.

LIO now joins publishers like Penguin Press, Tor Books and O’Reilly Publishers, who have all started to experiment with alternative copyright models that work with, rather than against, the internet’s potential to reach new audiences while maintaining (or even increasing) profit levels.

Last year Penguin Press made an unprecedented move to release Lessig’s ‘Free Culture’ under a Creative Commons licence that enabled people to freely download the book from the internet, and make derivatives for non-commercial purposes. LIO will hope that their use of the licence will be as successful as Penguin’s. After 24 hours, the book had been made available under 9 separate formats (txt, pdf etc), after 36 hours, an audio version of the book had been announced, after 48 hours, a wiki had been launched by Aaron Schwartz for others to build on and add to, and after one week, 200 000 copies of the book had been downloaded. Today, non-commercial translation projects have started in Chinese, Catalan, Danish, French, German, Italian, Polish, Portuguese (2) and Spanish (2). There are 3 audio versions of the book as well as versions for the Palm, MobiPocket and Newton.

According to LIO partner, Chris Verrijdt, use of the licence was an obvious move. ‘The annual is all about distribution. It’s about getting exposure for the 100 urgent voices who have contributed to the work.

If people want to use the work as an inspiration or a point of departure for a new work and they give the authors credit, that’s great.’

LIO has used the generic Creative Commons licence for its annual, but it will soon be able to use a South African jurisdiction-specific licence, developed by some of the leading intellectual property lawyers and scholars in the country.

LIO’s decision to use Creative Commons to licence sends a strong statement to their critics about how culture should be open to experimentation, public debate and creative expression. By forgoing some of their copy ‘rights’ and allowing the South African public to publish re-mixes of the annual, LIO wants to show that they, indeed, able to put their money where their mouth is.

Creative Commons workshop in Cape Town!

Filed under: Announcements — Heather Ford @ 3:17 pm

An APC Creative Commons Cape Town Workshop is being held on Tuesday 15 March from 9.30 to 1pm at Bridges.org.

The Creative Commons South Africa Johannesburg workshop was so successful that the APC has decided to conduct a similar workshop in Cape Town.

When? Tuesday, 15 March 2005: 9.30am – 1pm

Where? Bridges.org, 1 Plein Street, Cape Town

Who? Intellectual property lawyers, broadcasters, the media and policy experts

What? Learn about Creative Commons in South Africa and add your responses to
the draft licence found here

RSVP: Heather Ford by Friday, 11 March

Jo’burg workshop helps iron out ccSA licence

Filed under: General — Heather Ford @ 1:49 pm

Friday’s workshop was an enormous success in gathering together leading figures in South Africa’s intellectual property sphere to help draft the local Creative Commons licence.

Anriette Esterhuysen, Executive Director of the Association for Progressive Communications (APC) welcomed participants to the event, noting the centrality of intellectual property rights to international ICT policy debates, such as those evolving at the World Summit on the Information Society. Esterhuysen said that publicly-funded information (such as scientific research and university resources) should be in the public domain, but that this was being hotly contested by rights holders and that this was an area that needed much greater lobbying by civil society.

Heather Ford, public lead for Creative Commons in South Africa, explained that the Creative Commons copyright licence relies on copyright law for enforcement, and that it allows authors to cede some of the bundle of rights that are automatically granted to them under default copyright rules. She explained how collaborative publishing on the internet is reminding us how all culture is derivative and that we need to re-establish the balance between private and public rights in developing more sustainable copyright policies. Ford went on to explain how Creative Commons copyright licences work in harmony with copyright law, announcing to users how they may interact with the work and what are the conditions of re-use.

Professor Coenraad Visser, Head of the Law School at Unisa, spoke about the general trend towards strengthening rights holders at the expense of balancing these private rights with the public’s right to access information after limited terms. Professor Visser discussed growing restrictions for librarians and researchers, how information is being locked up in databases, and a general “creeping overreach” of intellectual property rights in South Africa and around the world.

Andrew Rens, legal lead for ccSA, took participants through the full legal code of the licence, as legal scholars from Unisa, rights holder representatives and civil society debated and reached consensus on how the licence should be adapted.

‘This is a great way of drafting a licence,’ said Rens. ‘Lawyers very rarely have the opportunity to collaborate like this – its great to get such detailed response from some of the leading figures in South African intellectual property law.’

The workshop was so successful that the APC has decided to conduct another workshop in Cape Town, in collaboration with Bridges.org next week Tuesday (15 March). Rens is busy adapting the first draft of the licence to incorporate comments made by participants. The second draft will be available here soon.

Evidence of agreement

Filed under: Legal licences — andrew @ 7:12 pm

One thing that you will have noticed is that there is no place on the licence that parties can sign to show their acceptance.

In the absence of signatures how can we know that the parties have agreed to the licence? If the use of a licenced work is ever in dispute in court one of the parties is going to have to prove that the parties agreed to the licence.

Instead of signatures to show consent it’s a condition of the licence that the licensee should incorporate the licence in the copy or derivative work. So as we discussed on 9 February the draft licence provides

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE (”CCPL” OR “LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT, PERFOMERS PROTECTION AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED.

and then goes on to add:

“BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE.”

This means that agreement to the licence terms stipulated by the licensor is shown by using the work in one of the ways allowed by the licence.

This is not a new concept in South African law. In a case familiar to all South African law students Bloom v American Swiss Watch Co. 1915 (AD) 100, the Appellate Division held that “it is always open to an offeror to indicate any special channel or communication, or any special mode in which acceptance may be manifested.”
The special mode of acceptance stipulated for creative commons licences is the exercise of any of the rights provided in the licence.

One of the terms of the licence is that the licence in its plain language (Creative Commons Deed), legal code and, where applicable machine readable code, forms will accompany the work or derivative work. If someone fails to append the licence then that person has breached the licence terms and the licence is automatically revoked.

But what happens if someone uses the work in a way that is not permitted by the licence? There will there be no agreement and thus the user of the work will not have authority to have used the work. The Copyright Act reserves certain acts for the copyright holder, usually the author or her successors. Once a work is proven to be a copyright work then anyone using the work must justify her use.The user will have infringed the copyright if she commits one of these acts without authority.

How can a user of the work, a licensee, be sure that the licensor will stick to the agreement? Because all works licensed under a creative commons licence have the licence appended by the person offering the work i.e. the licensor. The terms on which the licensor will be bound are already set out, the licensee only needs to accept the terms by using the work in a way permitted by the licence to show acceptance, and bind the licensor.

The Universal licence includes a further phrase that has been struck through in the South Africa draft licence to show our intention to omit it from the final licence:

THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

This is because the Anglo American common law systems require consideration for the formation of a binding agreement. However consideration is not required in Roman Dutch common law to form a binding agreement. It is suffecient that the legal actors evidence the intention to form a legally binding relationship.