Too Busy For Words - the PaulWay Blog

Thanks to Kim Weatherall's pointer, I read Ian McDonald's paper on Creative Commons licensing in Australia. My overall impression is that he still doesn't get the principles behind Creative Commons, and as such really acts only as a piece of promotional material for Copyright Australia and its agencies. It comes across as a frightener piece intended to make anyone creating new things run away from the Creative Commons license and pay APRA, the Copyright Council and the various other interested bodies lots of money to 'protect' copyright.

The key disconnect is embodied in the sentence "Creators who apply CC licences to their material are likely to rob themselves of potential income in pursuit of what could be nebulous returns." (on what appears to be page 225 of the document. This is presented as some kind of hidden flaw in the CC licenses, something that they didn't tell you about. "Ooooh, those naughty people with their fiendish CC licenses, they were nearly about to rob me of my potential income!".

One the one hand, this is actually topsy-turvy. The 'potential income' is what is nebulous: there is no guarantee that any creator is going to get paid for their creation. Amusingly, McDonald quotes figures at the end of the document to show how much all those benevolent copyright organisations are paying out: $70 million in the case of the Australian Performing Rights Agency, who handles music and live performance. This is disingenuous: they don't say what proportion of that made its way to the artists (i.e. bugger all), how much they got paid originally, what their take was, and how it was judged. The reality is that most artists don't get diddly squat, even if they are a fee-paying member of APRA - most of the money goes to Michael Jackson, the Beatles, and the other big copyright holders. The ordinary performer gets nothing from APRA.

And, as we've seen in many cases on TV and in newspapers, the big media companies feel quite free to rip off legitimately copyrighted photos and videos without getting permission from the copyright owners. And even if you do strike it lucky and get someone writing a cheque for your nature photographs, soundscapes or mixed media collages, this is hardly likely to be anywhere near supporting you. It's increasingly hard for professional photographers (to pick an example) to earn an income, partly because there's now a glut of professional photographers and their products on the market and partly because it's increasingly easy to find work that's free or cheap and use that instead of paying the Steve Parrish wannabes of the world. Creative Commons licenses won't stop, or exacerbate, this situation.

On the other hand, the whole point of Creative Commons licenses is to create a new forum for sharing licensed media, in the same way that we share common land such as parks and out-of-copyright works such as Shakespeare's plays. Creative Commons licenses provide the necessary tools to people who are happy to give their work away so long as it isn't exploited (and sometimes even if it is). The one fundamental constant in the Creative Commons licenses is attribution; the one right they all withhold is the right for someone else to claim your work as their own. This is fundamental to copyright, of course. But it's also a tool for getting your name out there. In the past, bands waited for talent scouts and Triple J Unearthed competitions for their chance at the big time - now they do it by putting tracks on their websites and giving CDs away to friends. The Creative Commons licenses ensure that people can do that and not have Britney Spears singing their song in six months as if it were her own property (or, at least, the legal right to take her to court if she does so).

McDonald does have one point to make: that Creative Commons is for creators, not users. In other words, the only person that can put a work under a Creative Commons license is the creator of that work; no amount of will or energy can take a copyrighted work and make it available under the Creative Commons. McDonald sees this as a critical flaw in people's expectations of Creative Commons - that the things that 'culture jammers' like billboard defacers and the people who want to mash-up Mickey Mouse (obviously numbering in the myriads according to McDonald) want to see in the public domain are the least likely to ever be. This is a straw man: it lumps all the mash-up creators into the 'culture jammer' bag, calls them copyright vandals, and throws them out with the trash.

This is where I find McDonald's choice of title amusing. "Just Say CC's" was a trademarked phrase advertising CC's, a brand of corn chips in Australia. Now, according to this page, at least, a trademark gives you the exclusive right to use that phrase - according to the law, no-one else can use it. Now I'm not sure how far that extends, so I'd appreciate hearing from a lawyer or someone that can impersonate one on whether this theoretically prohibits use of the trademarked phrase or anything calculatedly similar to it in ordinary conversation, or as a title of an article. But my point here is that it came perfectly naturally to McDonald to choose an amusing, slightly 'hip' title by playing off a cultural reference known to most Australians as his article's title. The fact that this was a trademarked phrase was irrelevant to him. In his own article criticising the sharing of copyrighted works as creative, cultural common material, he uses someone else's trademarked words to promote his own article.

OK, this is not shock and horror and satellites raining on our heads. But it seems to me to be a bit unconsciously hypocritical. And it gets right to the heart of the reason Creative Commons exists. Theoretically, Snack Foods Australia has to sue anyone using its trademarked phrases in public to defend its trademark; otherwise it's diluted and unenforceable. Creative Commons was invented so that if you see the CC logo, you have a fairly good idea that you can use it (for certain uses) and you won't be automatically liable for impending lawsuits. The whole point of marketing is to get these trademarked, copyrighted, proprietary, all rights reserved phrases out into everyone's minds and on everyone's lips; just as 'xerox', 'hoover' and 'google' have gone from trademarked title to common term. Using 'Just Say CC' is a reflection on the fact that trademarks and copyrights become public domain through natural usage: the laws regulating this process are merely a formalisation of what we instinctively, intrinsically believe should occur.

Creative people are rebelling against a world where you have to ask permission for using things that we see every day. A world where you can face criminal charges for singing Happy Birthday in a restaurant or take a photo of a Starbucks cafe is a world gone mad with control. Creative Commons is a process of giving, not a process of taking; it is for this reason that people like McDonald and the Copyright Council of Australia still fundamentally fail to understand it. The people who use and want to use Creative Commons license extend far beyond the scapegoat 'culture jammers' that McDonald mentions; they are legitimate artists of all types. And the uses they want to put this new licensed media to are far beyond what the Copyright Council understands. Until it can come to terms with sharing, it will be forever stuck in the past.

This post is licensed under the CC-BY-NC license. Of course. And I've now updated my blog to list this on the bottom of the page.