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Creative Commons Network: Copyright reform platform

Background

Creative Commons has a broad vision that imagines a world that is substantially different from the current situation:

Our vision is nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.

CC’s organisational mission is focused on providing tools for sharing:

Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.

It is evident that the activities covered by the mission statement can only be a partial contribution to realizing the overarching vision of the organisation. But Creative Commons’ updated strategy (January 2016) identifies advocacy as one of the three main pillars of its work over the next five years. CC’s organisational strategy explicitly ties advocacy efforts to the Creative Commons Global Network:

Advocacy is about CC’s vital role in advocacy and policymaking. Creative Commons has a powerful and respected voice which can be used to advocate for positive reforms. We are frequently called upon to lend our voice to important open policy debates, and to explain the impacts for the public good of particular policies, while identifying areas where new or existing policy impacts the ability of users to apply or rely upon CC licenses. However, the fight for copyright reform is a global one, and will only be won if we activate the power of many interconnected global communities. CC does not have the capacity or expertise to manage copyright reform campaigns globally, but the CC affiliate network can, if properly supported and engaged. CC will put collaboration at the centre of our approach, as we have been successful at supporting and collaborating with connected communities that advocate for policies that strengthen the commons, like the Open Policy Network and Communia.

Creative Commons is committed to copyright policy advocacy, and it makes sense that advocacy efforts rely on collaboration with the members of the Creative Commons Global Network.

This means that the Creative Commons Global Network should include a platform for copyright reform. CC affiliates have been vocal in their desire to engage within copyright policy discussions to influence law reform in the area. The Creative Commons copyright reform statement was initiated by affiliate network members and adopted by Creative Commons in 2013 at the Global summit in Buenos Aires. And several individuals and organisations are already actively involved in copyright reform activities.

Rationale

There are three main reasons why copyright reform is an issue that Creative Commons should focus on:

  1. Copyright provides the legal basis for the tools offered by Creative Commons, and changes to copyright can affect how these tools function,
  2. Copyright is the most important regulative framework that shapes the digital commons, and thus directly influences the ability to realize our vision, and
  3. Creative Commons is perceived to be a stakeholder in discussions about copyright policy (both by our friends as well as our enemies).

Goals and Objectives

The primary mechanism for achieving the Creative Commons vision is growing and strengthening the commons. As discussed above, copyright is the primary regulatory structure affecting the digital commons.

Over the past decades there has been an extension of copyright both in duration and scope. This expansion of copyright has taken place to protect the interests of a minority of copyright holders and to the detriment of users and the commons. The CC copyright reform platform recognizes the positions and legitimacy of both authors' and users' rights. We support copyright system that better balances the rights of creators and the rights of users and the general public.

The Creative Commons Global Network should advocate for changes to international and national copyright frameworks that ensure that copyright does not needlessly limits access to culture and information, that strengthens the rights of users and that preserve the ability of authors and creators to control the exploitation of their works within a system that balances these varied interests.

The CC copyright reform platform concerns itself primarily with advocacy efforts that attempt to bring about legislative and/or regulatory change in the field of copyright law. This means that advocacy aimed at promoting open licensing policies, while clearly an important area of engagement for Creative Commons, is not a primary activity for this platform.

Derived from this general principle we can identify a number of concrete objectives that can guide the copyright policy advocacy of the members of the Creative Commons Global Network:

  1. The sharing of works under Creative Commons licenses—or dedicating works to the public domain—is a legitimate exercise of copyright, and should be the norm for all publicly funded resources such as research, educational materials, government-collected data, and cultural works. Legal changes that interfere with this rule should be resisted; changes that facilitate it should be supported.
  2. The existence of CC licenses does not eliminate the value of or need for exceptions and limitations that permit socially beneficial uses without permission of the copyright owner. Limitations and exceptions ensure that copyright law fulfills its ultimate purpose of promoting essential aspects of the public interest. Flexible limitations and exceptions to copyright are required because they facilitate cumulative creativity—e.g. production of effective open educational resources.
  3. The term and scope of copyright protection should not be extended. Extremely long copyright terms prevent works from entering the public domain, where they may be used by CC licensors without restriction as the raw material for additional creative works. And increases in the scope of copyright and copyright-like protections can interfere with the operation and use of CC licenses.
  4. Contracts, technical protection measures, and automated content filters must not restrict access to and re-use of works in the public domain, the exercise of rights granted by CC or similar licenses, or otherwise override uses permitted under exceptions and limitations to copyright.
  5. Works that have entered the public domain must remain in the public domain. The digitization of public domain works does not create new rights over them.
  6. A healthy commons requires a healthy ecosystem of platforms and infrastructure for sharing. CC licensors rely on the availability of large and small online platforms on the open web to share and distribute their works. Platforms require reasonable protection against intermediary liability in order to ensure ongoing access to CC-licensed, public domain, and other openly licensed creative works.
  7. International copyright agreements should be reviewed to reintroduce commonsense formalities to mitigate the unintended negative consequences of automatic copyright protection. Countries should explore options under existing obligations to do the same. The growth of CC demonstrates that many authors and creators do not require nor desire automatic, one-size-fits-all copyright protection.
  8. Copyright policymaking must be conducted transparently and with participation from all stakeholders, especially the public.

With regard to some or all of these issues we can imagine defensive and offensive advocacy efforts. If we want to achieve our overall goals it is imperative that the copyright policy advocacy efforts of the Creative Commons Global Network are not limited to defensive efforts alone. Preventing legislative changes that would damage the commons is a priority, but we must also develop credible offensive efforts that push for positive legislative changes to strengthen and expand the commons.

Areas of Engagement

Copyright policy is formulated and implemented on a number of different levels. We can distinguish the following (sometimes overlapping) policy arenas:

  • Global (e.g., WIPO)
  • Supranational (e.g., the European Union)
  • Multilateral / multi-regional (e.g., trade agreements such as TPP)
  • National

Considering the above areas of engagement, we can identify several potential copyright reform platform activities that could be explored.

Educational materials for copyright reform

Create and maintain educational resources on CC’s role in copyright reform and commons policy advocacy. The platform should be able to explain in easily understandable writing, infographics, videos, toolkits, etc. how copyright law reform intersects with the commons and why CCGN is central to this ongoing work. It should showcase the work and products of the platform itself, including policy interventions, analyses, digital campaigns, blog posts, social media, slide decks, and other outputs. The resources should be translated, organised, and maintained on the Creative Commons website. There is also the option to explore building resources to include in the CC Certificate program.

Lightweight policy think tank

Develop a structure to highlight, research, and act on contemporary legal, technological, social/cultural trends that affect CC in relation to copyright reform and commons policy advocacy. There are a variety of specific issues that could be worked on, including both reactionary and proactively, that would benefit from diverse input from the CCGN. Through a lightweight policy think tank, these issues could be analysed, discussed, debated, with the idea to establish an improved understanding of new legal and policy challenges, and better informed CC organisation and movement overall.

An example of an issue to be tackled by the group would be mandatory remuneration schemes being floated within various national copyright laws—with the idea to clarify the effect of this on CC licensing, and also explore the implications for creators and authors. Another could be to analyse and develop a CC policy position or similar with regard to traditional knowledge and open licensing. The think tank could also investigate and participate in related policy work that affects the commons, which could include intervening in processes of a non-copyright nature, such as issues around contracts and technological protection measures and their effect on the exercise of rights under CC or limitations and exceptions, or even things like net neutrality, platform regulation, and other laws/regulations which may affect the operation of CC licenses, and affect sharing and the commons more generally. Written outputs such as policy analyses/positions would be added to the educational materials on the CC website described above.

Participation at WIPO

The Creative Commons organisation is a registered observer at WIPO, but over the years has only been minimally involved in the copyright discussions in Geneva. This role could be filled by members of the CCGN who use the observer status as a conduit to actively participate in the work at WIPO, especially the Standing Committee on Copyright and Related Rights (SCCR), which continues to focus on a possible treaty for broadcasters, as well as work related to limitations and exceptions in education and the GLAM sector. Both of these threads have relevance to the operation of CC licensing, and the work of the copyright reform platform in general. WIPO also presents a good opportunity to coordinate with other global NGOs that work towards strengthening the commons.

National level copyright reform efforts

As demonstrated again at the most recent CC global summit, there are several countries engaged in copyright reform processes, and CC network members are actively participating in providing guidance and recommendations for productive law reform that promotes users’ rights and protects the commons. The platform should continue to track these efforts, share information, and activate CCGN members where relevant. The platform should identify opportunities for cross-chapter engagement, including joint legal/policy interventions and collaborations on issue-based campaigns.

Trade agreement organising and intervention

Since copyright policymaking is taking place increasingly within regional and multilateral trade agreements (CPTPP, NAFTA, TTIP, RCEP, etc.), the platform should track and identify opportunities for intervention and education around protecting user rights, expanding the commons, and promoting transparency and public participation in negotiations. The platform members could draft and publish joint statements, coordinate with other civil society organisations on actions, and participate in events. We’ve already been engaging in this type of action, such as the joint policy analyses and communications around the Mercosur-EU FTA.

Other

Provide mentorship/fellowship opportunities for copyright reform and commons advocates

Communications