Creative Commons was conceived in a conversation I had with Eric
Eldred. I was representing Eric in his case challenging the United
States Congress’ Copyright Term Extension Act. Eric was enthusiastic
about the case, but not optimistic about the results. Early on, he
asked me whether there was a way that we could translate the energy
that was building around his case into something positive. Not an
attack on copyright, but a way of using copyright to support, in
effect, the public domain.
I readily agreed, not so much because I had a plan, but because,
naive lawyer that I was, I thought we’d win the case, and Eric would
forget the dream. But nonetheless, long before the Supreme Court
decided to hear Eldred’s plea, a bunch of us had put together the
plan to build the Creative Commons.
We stole the basic idea from the Free Software Foundation — give
away free copyright licenses. Because copyright is property, the law
requires that you get permission before you “use” a copyrighted work,
unless that use is a “fair use.” The particular kind of “use” that
requires permission is any use within the reach of the exclusive
rights that copyright grants. In the physical world, these “exclusive
rights” leave lots unregulated by copyright. For example, in the real
world, if you read a book, that’s not a “fair use” of the book. It is
an unregulated use of the book, as reading does not produce a copy
(except in the brain, but don’t tell the lawyers).
But in cyberspace, there’s no way to “use” a work without
simultaneously making a “copy.” In principle, and again, subject to
fair use, any use of a work in cyberspace could be said to require
permission first. And it is that feature (or bug, depending upon your
perspective) that was the hook we used to get Creative Commons going.
The idea (again, stolen from the FSF) was to produce copyright
licenses that artists, authors, educators, and researchers could use
to announce to the world the freedoms that they want their creative
work to carry. If the default rule of copyright is “all rights
reserved,” the express meaning of a Creative Commons license is that
only “some rights [are] reserved.” For example, copyright law gives
the copyright holder the exclusive right to make “copies” of his or
her work. A Creative Commons license could, in effect, announce that
this exclusive right was given to the public.
Which freedoms the licenses offer is determined both by us (deciding
which freedoms are important to secure through CC licenses) and by
the creator who selects from the options we make available on our
website. The basic components have historically been four: (1)
Attribution (meaning the creator requires attribution as a condition
of using his or her creative work), (2) NonCommercial (meaning the
creator allows only noncommercial uses of his or her work), (3) No
Derivatives (meaning the creator asks that the work be used as is,
and not as the basis for something else), and (4) Share Alike
(meaning any derivative you make using the licensed work must also be
released under a Share Alike license).
These four options — when each is an option — produce 11 possible
licenses. But when we saw that 98% of our adopters chose the
“attribution” requirement, we decided to drop attribution as an
option. That means we now offer 6 core licenses:
(1) Attribution (use the work however you like, but give me attribution)
(2) Attribution-ShareAlike (use the work however you like, but give
me attribution, and license any derivative under a Share Alike license)
(3) Attribution-NoDerivatives (use the work as is, and give me
attribution)
(4) Attribution-NonCommercial (use the work for noncommercial
purposes, and give me attribution)
(5) Attribution-NonCommercial-NoDerivatives (use the work for
noncommercial purposes, as is, and with attribution)
(6) Attribution-NonCommercial-ShareAlike (use the work for
noncommercial purposes, give me attribution, and license any
derivative under a ShareAlike license)
(We also offer a couple of other specialty licenses that I’ll
describe in a later post).
These options get added to a basic template license. That template
assures that the creator (1) retains his or her copyright, (2)
affirms that any fair use, first sale, or free expression rights are
not affected by the CC license, and (3) so long as the adopter
respects the conditions the creator has imposed, the license gives
anyone in the world four freedoms: (i) to copy the work, (ii) to
distribute the work, (iii) to display or publicly perform the work,
and (iv) to make a digital public performance of the work (i.e.,
webcasting). Finally, the license also requires the adopter to (1)
get permission for any uses outside of those granted, (2) keep any
copyright notices intact, (3) link to the license, (4) not alter the
license terms, and (5) not use technology (i.e., DRM) to restrict a
licensee’s rights under the license.
The licenses give creators a simple way to mark their creativity with
the freedoms they want it to carry by default. The license is an
invitation to others to ask for permission for uses beyond those
given by default. A “Noncommercial” license does not mean the creator
would never take money for his or her creativity. It means simply,
“Ask if you want to make a commercial use. No need to ask if you want
to make just a noncommercial use.”
We launched Creative Commons in December, 2002. Within a year, we
counted over 1,000,000 link-backs to our licenses. At a year and a
half, that number was over 1,800,000. At two, the number was just
about 5,000,000. At two and a half years (last June), the number was
just over 12,000,000. And today — three months later — Yahoo!
reports over 50,000,000 link-backs to our licenses. “Link-backs” are
not really a count of how many objects are licensed under Creative
Commons licenses – a single license could cover 100,000 songs in a
music database for example, or a single blog might have multiple
instances of the license. But the growth does measure something: The
uptake of Creative Commons licenses is growing fast, and indeed, far
faster than I ever dreamed.