The Iron Cage of Copyright

Interesting article over at the icommons.org site called CC Licensing Practice Reviewed Alek Tarkowski, ccPoland  It mentions an experiment in a dutch town where they removed the traffic signs or the rules.   As noted in the article,

Once rules are removed, people become considerate. Lacking formal guidelines, they establish order intuitively - through gestures or eye contact.

It goes to point to some alternative viewpoints on cc licensing:

A similar argument is made by Niva Elkin-Koren in “Creative Commons: A Skeptical View of a Worthy Pursuit”, in which she argues that Creative Commons licensing, even if introducing an alternative and open licensing model, nevertheless “strengthens the hold of copyright in our everyday life.” The concept and mechanisms of licensing are introduced to people who would not previously consider copyrighting their works, and thus possibly commodify their creations. Creative Commons, writes Elkin-Koren, “may actually strengthen the rights discourse and the hold of property as a conceptual framework and regulatory scheme for creative works.”

He goes on to explain how creative commons works differently in theory and in practice:

If there is an “iron cage of copyright” clamping down culture, as the criticism goes, then schemes like Creative Commons, piggy-backing on top of the copyright system, are inadvertently helping to build that cage. There is truth to this argument - but only as long as we look at the Creative Commons licensing model as an abstract design. This picture changes, in my belief, once we look at actual licensing practices.

The truth is, we know very little about this, as there have been no rigorous studies of open licensing practice. All evidence we have at the moment is anecdotal. Yet even a quick look at the way content is licenced shows that licensors approach licensing in a much looser manner than intended. Looking at some random CC licenced examples, I’ve found content licenced without referring to the particular terms of the licence, as if a simple “Creative Commons licence” existed. I’ve found copies and derivative works used without proper attribution, sites with community-built content using the CC licensing scheme, but only partially, and the use of a different licence than the one providing intended freedoms and limitations, and so on.

To some extent these are mistakes, probably due to insignificant knowledge, and these errors that can be corrected with a bit of effort. But this is also a sign that licensors use CC licences in their own fuzzy ways - almost everything on the internet becomes appropriated by the users and it would be surprising if things were different with CC licences. What this ‘sloppiness’ suggests is that people using the licences are not the rational, calculating licensors that the above-mentioned critics assume they are, and the licences are used only to some extent, as the legal tools that they are designed to be.

The alternative licensing scheme in the form of Creative Commons licences is confusing even to many lawyers who specialise in intellectual property law. No wonder that it is an arcane matter for the average content creator – even though six CC licences doesn’t seem like a big number. People still get confused by licensing choices and often the decisions they make might not be rational. What’s left is the Creative Commons logo and name - and these are treated as symbols of certain values, such as openness and sharing. For many people the phrase “CC licenced” is more of a badge of affiliation to a social and cultural movement, than a label for a legal licensing scheme.