Some rights reserved.
That’s the watchword of Creative Commons, a non-profit organization dedicated to building an alternative framework for copyright protection. A Creative Commons license, which allows the creator of original work to specify how it can be used, is both more faithful to the purpose of copyright than current law and better suited to the realities of a digital age.
Creative Commons, established in 2001, is based at Stanford University, where it shares “space, staff and inspiration” with the Stanford Law School Center for Internet and Society. Its first project, released in December 2002, was a set of free copyright licenses. Copyright holders — since 1978, copyright in the United States has been automatic — choose what uses of their work they want to allow and then issue their work under a Creative Commons license spelling out those uses.
As the Frequently Asked Questions (FAQ) puts it, the licenses “will help people tell the world that their copyrighted works are free for sharing — but only under certain conditions.”
For example, one photographer might opt for “attribution” — do anything you like with my pictures, just credit them to me. A professor might choose “non-commercial” for a paper he hopes will be widely used in course packs. A songwriter may be happy to have her work performed as she wrote it but not want it used in derivative works.
Or, as the Web site explains, people can choose the “share alike” option, which allows others “to distribute derivative works only under a license identical to the license that governs [the original] work.”
Anyone familiar with the Free Software Foundation’s General Public License will recognize the model and also knows how powerful it can be when a large number of creative people freely contribute to a commons. Creative Commons designed its licenses for people “who understand that innovation and new ideas come from building off existing ones,” it says in one of the Web site’s instructional cartoons.
The purpose of copyright, according to the Constitution, is to “promote the Progress of Science and useful Arts.” To that end, the first copyright law in 1790 set the term of copyright at 14 years with the possibility of one 14-year extension.
Authors who believe that’s sufficient can make use of another Creative Commons project, the Founders’ copyright, available since 2003. Within existing law, it mimics the state of affairs at the country’s birth. One of the first publishers to sign on was the technical publisher O’Reilly and Associates. The decision was both “pragmatic and symbolic,” said founder and CEO Tim O’Reilly. “It lets publishers like us free up great books after they’ve lost profitability. And it lets us cast a virtual vote for a more reasonable, moderate form of copyright.”
But Congress has been moving in exactly the opposite direction. Lawrence Lessig, Creative Commons chairman of the board and law professor at Stanford, wrote in his January column for Wired magazine that in the last 40 years, Congress has extended the term of copyright for existing works 11 times. The most recent extension, the 1998 Sonny Bono Copyright Term Extension Act, tacked on an extra 20 years so that some copyrights in the United States reach back as far as 1923 and won’t expire before 2019.
Most copyright work is long forgotten by the time the copyright expires. “Any wealth [that extension] creates for copyright holders is swamped by the wealth the public loses” because it is denied lower costs and wider access, Lessig said.
He suggests that if Congress is determined to keep extending copyright terms, it should limit the extensions to future works. Or, require a small fee for the extension — not to raise money, but to weed out work that no one is paying attention to any longer.
In another column, an op-ed that appeared in the Los Angeles Times Jan. 12, Lessig explained that in 1930 there were 10,027 books published in the United States, and by 2001 only 174 of them were still in print. The other 9,853 could still be under copyright, but there is essentially no way to find out. First, a book had to be registered to be copyrighted, and then the copyright had to be renewed. “At least half of all works published historically never took the first step; almost 90 percent never took the second,” Lessig said.
It is largely the owners of huge blocks of copyright material — record companies, movie studios — that push for ever longer periods of protection. Maybe most of what they own is worthless, but the few gems that remain valuable are motivation enough.
But the combination of digital reproduction and the Internet has doomed that way of doing business. The entertainment industry’s business model consists of persuading Congress to pass harsh laws like the Digital Millennium Copyright Act of 1998 and then suing a few of their best customers in hopes of terrifying the rest. That doesn’t sound like a plan with a future.
It would be much more public-spirited, and ultimately more profitable as well, to figure out new ways to sell people what they want to buy.
Songs, for example. In 2004, more than 140 million individual songs were sold by iTunes and similar services, according to Nielsen SoundScan. A year earlier, it was less than 20 million, and given how many people unwrapped iPods or their cousins this holiday season, the number will undoubtedly rise. If the song you want costs 99 cents or less, it’s hardly worth the trouble of stealing it.
Full CDs? That might be more of a problem, but it has always been possible to borrow recordings from the library or from your friends and copy them. Digital copying offers better quality, and file-sharing offers more convenience, but it also saves money throughout the distribution chain. More than five million albums were sold through downloads in 2004, a category that wasn’t even tracked in 2003.
There’s no way to estimate how many sales are lost when people share files of copyright material. Even if pirating copies is wrong, it doesn’t follow that every pirated copy represents a legitimate copy that would have been sold but wasn’t. Maybe the theoretical purchaser has already maxed out her credit card or her music budget for the month. Or another is checking out an unfamiliar artist whose work he might buy in the future if he discovers he likes it.
In addition to asking, “What would people buy if we offered it for sale?” the owners of intellectual property should also ask, “What could we give away that would increase sales of what we sell?” If you think that’s a silly question, consider the alternative weeklies that flourish in most cities. They give away the tangible product, the newspaper, to create an audience that their real customers, advertisers, will pay for.
How will it work for movies, or Web logs, or genre fiction or … whatever? Maybe differently for each, because the economic fundamentals of production are different, too. But it is what the producers of intellectual property should be thinking about, rather than trying to hold back the tide, as movie studios tried to do with videotapes. You can sell videotapes, or now DVDs, and even if it reduces income from movie tickets sold — and it’s not clear whether this is the case — it is an entirely new revenue stream with a set of customers who watch movies, but don’t go to see them in theaters.
As it happens, there are pioneers trying to find workable models for different kinds of creative work. One is the science-fiction publisher Baen Books, which established the Baen Free Library in 2000. As First Librarian Eric Flint, himself an author, explains it, “Losses any author suffers from piracy are almost certainly offset by the additional publicity which, in practice, any kind of free copies of a book usually engender.”
Think about it. If you’re a voracious reader — and most people who buy books at all are at least hungry readers — you probably read many more books than you buy, if for no other reason than adding four or five books a week to your bookshelves is impossible over time even if you don’t care how much it costs.
But if you are buying a book, for the beach, maybe (don’t want to get sand in the laptop, do you?) or because you’re stuck at an airport, what book will you buy? One by an author you already know you like is a more likely choice than one by someone you’ve never heard of.
Flint volunteered his own first novel, “Mother of Demons,” as a proof of concept, but within a few days he and Baen had decided the Free Library ought to be a policy, not just a one-time demonstration. In April 2002, in an essay titled “Prime Palaver #6” Flint discussed the effects of giving his books away.
At the time Flint put “Mother of Demons” online for free, it had sold just under 9,700 copies. After he gave it away for a year and half, it had sold nearly twice that many. Other titles also show increasing sales after they’re put online.
It’s true, as Flint acknowledges, that he’s much better known now. But one of the reasons he’s better known now is that he let people find out about him for free.
That’s books, but there is evidence from the music world as well, not all of it from the digital era. Lots of people used to tape the Metropolitan Opera Saturday broadcasts at a time when taping at home was not for sissies. The question before us today is, were the people who made those tapes, and probably shared them, more or less likely to attend the Met if they ever found themselves in New York City? You know the answer to that one.
Or, if opera is not your thing, consider whether the Grateful Dead suffered financially by allowing their fans to tape concerts. No; they turned occasional but enthusiastic concertgoers into Deadheads, people who spent a big chunk of their lives trailing the group from concert to concert in order to have bragging rights to the biggest collection of the best tapes.
Another musician who believes downloading is good for performers is singer-songwriter Janis Ian. She expressed this view in an article for Performing Songwriter Magazine in May 2002 and my word, were people in the industry upset with her. But experience tells. Ian says her site gets about 75,000 hits a year — “not bad for someone whose last hit record was in 1975.”
When Napster was running full tilt, Ian says, she heard from about 100 people a month who had downloaded one of her hit songs, “Society’s Child” or “At Seventeen,” for instance, and 15 of them bought CDs. That doesn’t even count people who bought CDs somewhere else or just decided to buy a ticket to a Janis Ian show they wouldn’t otherwise have attended.
Ian also quoted Mercedes Lackey, a first-rank Baen author who has put some of her books in the Free Library. The first thing she noticed was that royalty checks from a different publisher tripled. “I tell you what, I’m sold. Free works,” Lackey said.
The challenge for the owners of intellectual property is how to make “free” work for them.
