|Volume 61 Number 1
Creative Commons in Higher Education: Its Role in Providing and Maintaining Educational Resources
Nicole H. Carney
Sr. Library Associate, University of Tennessee Libraries
Candidate for Master of Information Sciences, University of Tennessee, Knoxville
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“Get Creative. It’s easy when you skip the intermediaries,” or so concludes the six and a half minute video on the Creative Commons website that introduces a new way to license works (Brown, 2002). Seeking the middle ground of “some rights reserved” in the licensing process, Creative Commons was founded as a non-profit group in 2002 by Lawrence Lessig, Hal Albeson, and Eric Eldred to assist individuals wanting to participate in socially created value that is increasingly competing with conventional markets. It is important to note, however, that Creative Commons serves as a complement rather than a replacement for copyright and can play an important role for colleges and universities seeking new ways to increase their outreach services and participate in a global economy. The purpose of this paper is to describe how Creative Commons gets used in higher education by introducing a brief history of copyright, describing the evolution of Creative Commons, detailing the licensing products offered by the group, mentioning its benefits and disadvantages for users, and concluding with a discussion of future uses for Creative Commons in higher education.
What exactly is copyright, and when did it originate? Perhaps the best source to consult is the United States Copyright Office, which states: Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to authors of original authorship, including literary, dramatic, musical and certain other intellectual works.
Since its creation in 1790, copyright has been extended almost seven times (Gasaway, 2009, p. 453). Interestingly, copyright protection is available to published and unpublished works, regardless of the nationality of the author (United States Copyright Office). Its original intent was to offer incentives to authors to continue creating works and to make these works openly available to the public. In return, authors were offered financial incentives through licensing fees (including licenses to produce derivative works) and royalties from publishers’ sales of copies of an author’s work. Non-economic incentives for authors included the increased acclaim or reputation and the sheer joy of having others read his or her work. Until 1978, works had to be registered in order to receive copyright; in today’s world, a work receives copyright the very moment it is created.
A monumental change to copyright came with the Copyright Act of 1976, when the United States adopted the European definition of copyright and extended the term to the life of the author plus fifty years. A second historic change to United States copyright occurred in 1998 with the Copyright Term Extension Act (CTEA), in which copyright expanded and applied retroactively to all works still under copyright; this act will be discussed later in the paper. The terms “fair use” and “public domain” are key to understanding the evolution of Creative Commons and are discussed in the next section.
Fair Use and the Public Domain
Fair use is a doctrine that allows limited use of copyrighted material without requiring permission from the person who holds the rights (Cornell University Law School). Under the fair use doctrine, exemptions to copyright law (in the form of monetary compensation to owners) are given in cases of commentary, criticism, news reporting, research, teaching, library archiving, and scholarship. The United States Court system has played an instrumental role in defining what constitutes fair use and has offered four factors that can be considered in determining it, including purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market (Patterson, 1998, p. 449).
Lessig and his colleagues at Creative Commons, however, saw little value in the doctrine of fair use and wanted to build a strong infrastructure for cultural freedom on the Internet. During the late 1990s, the legality of sharing works online and downloading them was highly ambiguous. Lessig believed that the public domain provision and the fair use doctrine were “a terrible structure on which to build freedom” (Bollier, 2008, p. 94) and increased unnecessary litigation.
The term “public domain” was first used with a U.S. Supreme Court decision handed down in 1896 (Bollier, 2008, p. 59). Public domain was first mentioned in U.S. Copyright law in 1909 (Bollier, 2008, p. 59) but was seldom mentioned in later legal discussion in the succeeding decades until a significant law review article in 1981, “Recognizing the Public Domain,” written by David Lange (Bollier, 2008, p. 59). At this point, one may ask “What is the public domain?” Works in the public domain are not covered by intellectual property rights, even if the work is forfeited by the owner or owners. Frequently the term “orphan works” is used to describe these situations. In general terms, public domain works refer to ideas, information, and works that are publicly available, but within the discussion of intellectual property law, public domain works, ideas, or information are intangible to private ownership. For decades, the public domain was viewed as a wasteland for old books and boring government documents.
The CTEA and the Founding of Creative Commons
In addition to fair use and public domain, other tenets important to the discussion of copyright law and the formation of Creative Commons are the terms “authorship” and “originality” (Bollier, 2008, p. 61). Proponents of copyright law have long argued that these two standards justified the maintenance and enforcement of copyright provisions. Lessig and other attorneys at Creative Commons believe that the standards of authorship and originality are difficult to recognize in a twenty-first century digital age where technologies enable individuals to share, remix, mashup, collaborate, or adapt any work and make it their own. Before the Internet, an author was self-evident, but now the distinction is less clear. One example of the preceding idea is described in the legal case Ashcroft v. Eldred, in which Lessig served as lead counsel for the plaintiff, Eric Eldred.
Eric Eldred, a book enthusiast and retired computer programmer, developed a free online archive of classical American literature in the late 1990s. The literature in this online database was largely comprised of works from nineteenth-century authors whose works were in the public domain. Eldred viewed his project as a service to the community and believed other book lovers would want to partake in his venture born in the early days of the Internet. The name of Eldred’s book database, Eldritch Press, typified an early prototype of a self-published work meant to be shared with anyone in the world via the Internet. Within a short period of time, Eldred’s web site was receiving more than twenty thousand hits per day (Bollier, 2008, p. 70). On one occasion, the web site received a citation of excellence from the National Endowment for the Humanities as one of their top twenty humanity sites on the web (Bollier, 2008, p. 71).
During Eldred’s experimental project of self-publishing, the Copyright Term Extension Act (CTEA) of 1998, which extended copyright terms in the United States by twenty years, was passed and implemented. The pejorative name for the CTEA of 1998 is the Mickey Mouse Protection Act. The Disney Corporation played a key role in the lobbying effort for passage of the law. The first Mickey Mouse cartoon was nearing the end of its seventy-five year copyright term and was due to enter the public domain in 2003 if no changes had been made to United States copyright law.
Prior to the passage of the Sonny Bono Copyright Term Extension Act (or the Sonny Bono Act), copyright would last for the life of the author plus fifty years, or seventy-five years for a work of corporate authorship (Cornell University Law School). Instead, the Act extended these terms to the life of the author plus seventy years and for works of corporate authorship to one hundred twenty years after creation or ninety-five years after publication, whichever ended first. Copyright for works published prior to January 1, 1978, was increased by twenty years for a total of ninety-five years from their original publication.
What the CTEA did was to privatize many of the public domain works on the Eldritch Press web site, and in protest Eldred closed his site in November 1998 (Bollier, 2008, p. 73). Lessig read about Eldred’s current situation in the newspaper and contacted him about serving as lead plaintiff in a landmark legal case that would challenge the federal government’s most recent expansion of copyright law. Eldred agreed to Lessig’s request and after several rounds in the lower federal courts, Eldred v. Reno (later named Eldred v. Ashcroft) made its way before the U.S. Supreme Court (Bollier, 2008) in October 2002. The plaintiffs in Eldred v. Ashcroft argued that CTEA violated Article 1, section 8, clause 8 of the Constitution, which provides that copyright protection shall be of limited duration (Bollier, 2008, p. 82). In addition, the plaintiffs maintained that the CTEA violated the free speech clause of the First Amendment (Bollier, 2008, p. 82). On January 12, 2003, the Supreme Court announced its ruling: a 7-2 defeat for Eldred. Despite the loss, Lessig’s participation in the Eldred case would energize his career and aid in the growth of the free culture movement. In addition, this particular legal case educated the American people about copyright law and served as a springboard for the founding of the Creative Commons.
Lessig’s side was stunned by their loss in the Eldred case. One day, Lessig received an email from Massachusetts Institute of Technology (MIT) professor Hal Albeson, who proposed that the two of them set up a tax-free charitable foundation to which artists and record label companies could donate the copyright for recorded music (Bollier, 2008, p. 89). Specifically, Albeson was interested in old music for which there was not a current, active market (Bollier, 2008, p. 89). Despite the appeal of a digital archive for donated and public domain works, Lessig and others in the copyright reform movement saw problems with regard to getting the IRS to understand the valuing process of such a project and to accept what they were doing (Bollier, 2008, p. 100). Lessig’s group saw great value in what Richard Stallman had accomplished in the open access software arena of GNU/Linux licenses. Rather than a digital archive of donated copyrighted music, Creative Commons decided to offer a set of free licensing products that would allow any interested individuals to share, remix, and reuse—legally. Creative Commons began offering their licensing products in January 2002. A description of these licenses is detailed below and is followed by a discussion on important considerations for colleges and universities using this new complementary licensing service.
Creative Commons Licensing
The Creative Commons website offers several types of licenses, including Attribution, Non-commercial, Share Alike, and No Derivatives (Creative Commons). Attribution licenses allow others to copy, distribute, display, perform, and remix an author’s copyrighted work as long as they give the author credit in the manner he or she requests; all Creative Commons licensing contains this provision. Non-commercial licenses let others copy, distribute, display, perform, and remix an author’s work for non-commercial purposes only; if an individual decides to use an author’s work for commercial purposes, he or she must contact the author for permission. In Share Alike licenses, the author lets others create remixes and derivative works as long as they distribute them under the same Creative Commons licenses that the original work was published under. With a No Derivatives license, the author lets others copy, distribute, display, and perform only exact copies of the author’s work but not make derivative works based upon it. If alteration, transformation, remixing, or building upon the work is desired, the person must contact the author for permission. It is important to note that a No-Derivatives clause prevents others from revising or remixing another author’s work. In addition to licenses, Creative Commons offers a way to release material into the public domain through CC0 (“no rights reserved”), a legal tool for waiving numerous legal rights worldwide. In 2010, Creative Commons announced a tool for labeling works already in the public domain—the Public Domain Mark, which the Creative Commons website recommends for works “that are free of known copyright around the world…[typically] very old works” (Creative Commons). Creative Commons’ licenses do not change, alter, or modify fair use rights.
Another important consideration to understand in regard to Creative Commons licensing is their use of formats, which are expressed in three different manners—Commons Deed (human readable code), the Legal Code (lawyer-readable code), and metadata (machine readable code). The Commons Deed, which has no legal value, is the user-friendly interface to the Legal Code. It states what others can and cannot do with a work in language that is not included in the actual license (Creative Commons). The Legal Code is the actual license and is designed to be enforced in a court of law. Metadata describes the key license elements in the content of the work that will enable its discovery through Creative Commons-enabled search engines.
The original Creative Commons licenses were written with the United States legal system in mind. This focus on federal law can make some of the wording of these licenses incompatible within different local legislations and render the licenses unenforceable in other parts of the world (Creative Commons). Creative Commons International has addressed this issue by porting the various licenses to accommodate local copyright and private law. In essence, the porting process involves linguistically translating the licenses so that particular jurisdictions will adapt them. The porting of licenses worldwide is a continuing project for the group.
A final consideration with regard to Creative Commons’ licenses is that they are non-exclusive. These licenses allow one to permit the general public to use a work with a Creative Commons license and then enter into a separate and different non-exclusive license with someone else in exchange for money (Creative Commons). Creative Commons does not own or host any content. Rather, its focus is to help authors and artists license their work, offer tools to ease the publishing process, and point to examples of Creative Commons’ licenses content from featured works (Creative Commons).
The Creative Commons website reminds readers that the non-profit group receives much of its funding through numerous foundations and from public donations. Other considerations to ponder with regard to Creative Commons include the following: they do not provide legal advice nor are they involved in digital rights management (DRM), their licenses are non-revocable, and they are not recommended for software. Most importantly, Creative Commons’ licenses and tools do not incur a cost for the user. Creative Commons licensing is available to works created offline but does not include metadata nor can the work be identified via Creative Commons customized search engines (Creative Commons).
Creative Commons and Higher Education
The world of scholarly communication and academic resources is a rapidly changing landscape, and the best resource to guide researchers and students through this twenty-first obstacle course is the library. Academic libraries have long had a dual role on campus—to provide access to materials in compliance with fair use guidelines and to inform teaching faculty about these guidelines and how their decisions regarding which materials to use can impact classroom teaching (Wagner, 2008, p. 247).
A frequent question asked by students and faculty at any college or academic library is whether or not a particular piece of copyrighted material may be used for the purpose they have in mind. What collegiate libraries need to consider in regard to using Creative Commons’ licenses for their educational resources is best demonstrated by describing the advantages and disadvantages of this new licensing service.
The cited advantages of Creative Commons include establishing a clear moral right of “paternity” to U.S. authors who are mostly unprotected by moral rights that are common in other jurisdictions and providing a certain degree of clarity compared to the broad sweep of copyright law in any jurisdiction outside of the U.S. (Morgan, 2010, p. 648). Under current copyright law, moral rights offer authors the noneconomic privileges of “paternity” (the right of the author to be identified as such) and “integrity” (the right to oppose any changes in the work that could harm the honor or reputation of the author).
Molly Kleinman serves as the copyright specialist at the University of Michigan Library in Ann Arbor, Michigan. Based on her professional experience, she finds that the most immediate benefit of Creative Commons licenses to academia is the “wealth of new works that are available for use without permissions or fees” (Kleinman, 2008, p. 595). Faculty and students no longer have to rely solely on public domain materials for repurposing, nor do they face possible copyright infringement for using a work in an incorrect manner. Kleinman describes Creative Commons as a “gift to the academic community” (Kleinman, 2008, p. 597) in an era of stringent licensing restrictions and smaller budgets.
Universities and university libraries making use of Creative Commons licensing include the Berkman Center for Internet and Society (located at Harvard University), the Center for Internet and Society at Stanford University, the University of Michigan Library, Rice University’s Connextions, and MIT’s OpenCourseWare (OCW). A frequent reason cited by these institutions for using Creative Commons as a licensing option is that the service matched their university’s mission to disseminate knowledge and to participate in the global market (d'Oliveira, Carson, James, & Lazarus, 2010 p. 525).
One criticism of Creative Commons involves journal articles and scholarly monographs. Cope argues that these types of publications do not need “free” copyright licenses that can lock free or open source software and its derivatives into community ownership (2009, p. 50). Lessig and his colleagues say that their system allows for digital creativity that can be integral in academics and in other venues. The view is that authors in academic circles have the advantage of being able to link the credibility of their work to themselves and that copyright strengthens the claim to credibility (Cope, 2009, p. 50). In addition, attribution and moral rights are maintained via academic citation systems. Fair use allows “re-users” to quote and paraphrase for the purposes of review and criticism.
One of the disadvantages of Creative Commons is the lack of input by the rights holder, who has no say so as to the development or codification of the licenses. A second Creative Commons disadvantage deals with users who may mistakenly believe that the copyright itself is being waived and that only some of the intellectual property rights are reserved. An academic journal that reiterates these sentiments and chooses not to implement Creative Commons’ licensing products is BioEssays. In a recent “Insights & Perspectives” column, the author reminds readers that their journal prefers to specify the terms and conditions for their work rather than delegating this task to an outside organization in which they have no influence and who has their own agenda (Morgan, 2010, p. 649).
On their website, the creators of Creative Commons state that their services will enable a future in education and learning that includes technical, legal, and social openness (Kozak, 2009). Future projects at MIT’s OCW project include the introduction of course materials designed specifically for use by independent users, a project that faculty and staff at MIT foresee as needing sustainable funding (d'Oliveira, Carson, James, & Lazarus, 2010 p. 526).
Allyson Mower, Scholarly Communications and Copyright Librarian at the University of Utah’s J. Willard Marriott Library, describes her experience with Creative Commons saying, “When I initially mention Creative Commons, there’s not much familiarity and there’s some reluctance, but after talking about the difference between all rights reserved and some rights reserved … there’s a willingness to license one’s work.” She sees a future for Creative Commons in higher education in the realm of course material (email message to author, October 5, 2010). Confirming Mower’s experiences with Creative Commons and its future use are authors John Hilton III and David A. Wiley of Brigham Young University, Provo, Utah. Touting the four “R’s” of reuse, redistribute, revise and remix, they find open educational resources, particularly those resources utilizing a Creative Commons license, playing an important part in “improving pedagogy and increasing access to education” (Hilton & Wiley, 2010, p. 58).
Lessig and his colleagues at Creative Commons are at the forefront of a movement to connect the wisdom of the crowd with the changing needs of higher education in acquiring and maintaining educational resources. Founded on the principle that a growing force in the world economy and society is individuals working with one another via social networks, Creative Commons definitely has a place in higher education. What group is better suited and well-poised to participate in this powerful force and driving innovation than colleges and universities and their libraries?
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