This arti­cle forms part of Wired.co.uk’s Cre­ative Com­mons Week, which sees a range of arti­cles pub­lished on the top­ics of CC licens­ing, as well as the past, present and future of the Cre­ative Com­mons movement.

Copy­right has been with us for a long time, and has changed enor­mously in nature since its ear­li­est days. Cre­ative Com­mons hasn’t been around quite so long, but it has some­what of a sto­ried his­tory in itself.

The con­cept of copy­right may well have begun with King Diar­mait Mac Cerb­haill, in the late sixth cen­tury in Ire­land. He was pre­sid­ing over a dis­pute about the own­er­ship of the Cathach – one of the ear­li­est exam­ples of Irish writ­ing, which con­tains a ver­sion of Psalms 10 to 13. An Irish mis­sion­ary, Saint Columbahad been lent a book of psalms by Saint Fin­ian, and had made a copy. Fin­ian argued that as he owned the orig­i­nal, he should own the copy, but Columba disagreed.

Diar­mait Mac Cerb­haill attempted to resolve the mat­ter with the judge­ment: “To every cow belongs her calf, there­fore to every book belongs its copy”, mark­ing the first doc­u­mented rul­ing with regards to copy­right. It didn’t do much, good, though. The dis­pute escalted, result­ing in the Bat­tle of Cúl Dreimhne (.pdf) in 561, dur­ing which many men were killed. Columba was nearly excom­mu­ni­cated, but took the option of exil­ing him­self from Ire­land instead.

Statute of Anne
1,148 years later, the first fully-fledged copy­right law was enacted in 1709, shortly after the inven­tion of the print­ing press. With this new tech­nol­ogy hav­ing made it far eas­ier to make mul­ti­ple copies of a book, the rapid spread of infor­ma­tion began, and to rem­edy this a sit­u­a­tion was cre­ated where pow­er­ful print­ing houses, under the ban­ner of the Sta­tion­ers’ Com­pany, were awarded a monop­oly on the abil­ity to pub­lish infor­ma­tion. The down­side of this was that only lit­er­a­ture that the group wanted to print could be printed, and as a result, they quickly took own­er­ship of the con­tent — the authors and the pub­lic had no power at all against this pow­er­ful com­mer­cial dis­tor­tion of the mar­ket, and there­fore no rights.

The solu­tion came in the form of “An Act for the Encour­age­ment of Learn­ing, by vest­ing the Copies of Printed Books in the Authors or pur­chasers of such Copies, dur­ing the Times therein men­tioned,” bet­ter known as the Statute of Anne, after Queen Anne, who was the monarch at the time. This granted pub­lish­ers legal pro­tec­tion against copies for a lim­ited time — 14 years — after which any­one was free to reprint the con­tent. It cre­ated the con­cept of a pub­lic domain for the first time, where the gen­eral pub­lic owns a cre­ative work.

Exten­sions
Skip for­ward another 289 years, and the US con­gress has just passed the Sonny Bono Copy­right Term Exten­sion Act, adding 20 more years to the dura­tion of copy­right. The US had passed a series of term exten­sions through­out the 60s, 70s and 80s — usu­ally just as the copy­right on Mickey Mouse was about to expire. As a result, these became known as the “Mickey Mouse Pro­tec­tion Acts”. You can see how the term of copy­right in the United States increased in this graph:

Copyright Term Extension

The prob­lem is that while these acts were put in place to pro­tect com­pa­nies who were build­ing busi­nesses off the back of copy­right, it spelt trou­ble for busi­nesses that took advan­tage of the pub­lic domain. Eric Eldred was one of those peo­ple — he ran a web­site that reprinted works whose copy­right had expired, mak­ing them more widely avail­able in a vari­ety of for­mats. The act was going to destroy his busi­ness for the next twenty years, so he went to court — and even­tu­ally the Supreme Court – to argue that the act was unconstitutional.

Copy­rights Com­mons
Eldred was joined by a selec­tion of other com­mer­cial and non-commercial inter­ests, and his lawyer was Lawrence Lessig, a polit­i­cal activist and pro­fes­sor at Har­vard Law School. On 17 Feb­ru­ary, 1999, Lessig formed a col­lec­tion of peo­ple to help fight the case, which was named the Copy­rights Com­mons. Among them were Eldred and Hal Abel­son, a pro­fes­sor of elec­tri­cal engi­neer­ing and com­puter sci­ence at MIT.

On 28 Octo­ber, 1999, the judge rejected all three of the plantiff’s argu­ments. The group appealed the deci­sion and con­tin­ued build­ing up evi­dence, and on 12 Jan­u­ary, 2001 one of the mem­bers of Copy­rights Com­mons — Eric Saltz­man, who was run­ning Harvard’s Berk­man Cen­ter for Inter­net & Soci­ety — sug­gested that the move­ment be renamed Cre­ative Com­mons. In a vote of the board, four days later, the change was unan­i­mously accepted.

A day later, the appeals court issued its judge­ment, uphold­ing the deci­sion of the dis­trict court in a 2–1 opin­ion. Given the split, Eldred asked for a re-hearing in front of a panel of nine judges, but this too was defeated, 7–2. On 11 Octo­ber, they asked the Supreme Court to con­sider the case. On 19 Feb­ru­ary 2002, the Supreme Court agreed to take it on.

Lessig said in a pre­sen­ta­tion at the iCom­mons Sum­mit in Japan on 30 July, 2008: “It was intended as a grass-roots move­ment of cre­ators, oth­er­wise known as copy­right own­ers, who would look at this default of ‘all rights reserved’ and say ‘I don’t need all rights’, the most they need is some rights.” He added: “Not sup­port­ing steal­ing, but sup­port­ing authors free­ing the part of the rights granted to them by the law that they don’t need.”

Cre­ative Com­mons
The newly-formed Cre­ative Com­mons set about com­ing up with a way of allow­ing authors to exer­cise that option, and the organ­i­sa­tion was first pre­sented to the pub­lic in a press release on 16 Octo­ber, 2002. “The Cre­ative Com­mons will pro­vide a free set of tools to enable cre­ators to share aspects of their copy­righted works with the pub­lic,” it read, adding: “We stand on the shoul­ders of giants by revis­it­ing, reusing, and trans­form­ing the ideas and works of our peers and predecessors.”

The first set of licences, ver­sion 1.0, were issued on 16 Decem­ber, 2002, inspired in part by the GNU Gen­eral Pub­lic Licence. Lessig said at the time: “Peo­ple want to bridge the pub­lic domain with the realm of pri­vate copy­rights. Our licences build upon their cre­ativ­ity, tak­ing the power of dig­i­tal rights descrip­tion to a new level. They deliver on our vision of pro­mot­ing the inno­v­a­tive reuse of all types of intel­lec­tual works, unlock­ing the poten­tial of shar­ing and trans­form­ing oth­ers’ work.”

The licences com­prised of a com­mons deed — a plain-language sum­mary of the licence, the legal code nec­es­sary to fine-tune the per­mis­sions being offered, and a machine-readable trans­la­tion that let search engines dif­fer­en­ti­ate CC-licensed con­tent from those marked “all rights reserved”.

A month later, the Supreme Court announced its deci­sion. In a 7–2 rul­ing, the act was held to be con­sti­tu­tional, rely­ing on prece­dents from pre­vi­ous exten­sion acts and also argu­ing that life expectancy had sig­nif­i­cantly increased since the 18th cen­tury, and so copy­right should be extended to match. The chief argu­ment, how­ever, was that the con­sti­tu­tion only said that con­gress needed to set a limit for copy­right — it didn’t make any demands about the size of that limit.

Rise and rise
By that point, how­ever, Cre­ative Com­mons licences had begun to take on a life of its own. An hour after the court’s deci­sion was announced, the William and Flora Hewlett Foun­da­tion pre­sented Cre­ative Com­mons with $1,000,000 to launch the movement.

By 2003, one mil­lion works had been given a Cre­ative Com­mons licence. By 2004, that had risen to nearly 5 mil­lion, and ver­sion 2.0 of the licences was released – mak­ing a demand for attri­bu­tion stan­dard in licences, demand­ing links back to the orig­i­nal work, and mak­ing share-alike work across borders.

2004 also saw the release of the Grey Album – a mash-up of the Bea­t­les’ White Album and Jay-Z’s Black Album cre­ated by Dan­ger­mouse. Despite build­ing on exist­ing works to cre­ate some­thing entirely new, which Dis­ney did repeat­edly while remak­ing its fairy­tales, EMI sought to block its sale on copy­right grounds. The record label’s heavy-handed approach to the mat­ter sparked intense crit­i­cism on the web, and was an early exam­ple of web users rebelling in an organ­ised wayagainst large media com­pa­nies over copy­right issues — some­thing which is extremely com­mon today.

By 2005, the num­ber of licensed works had risen to 20 mil­lion and by 2006 that had increased to 50 mil­lion, helped in no small part by the growth of the photo-sharing site Flickr, which made avail­able the option of licens­ing under Cre­ative Com­mons to its users and widely pub­li­cised it. By 2007, five years after the licences were first unveiled, 90 mil­lion works were avail­able from Cre­ative Com­mons and ver­sion 3.0 of the licences were released — which is the ver­sion in use today.

Change
2008 saw a period of flux within the organ­i­sa­tion, as Lawrence Lessig stepped down as CEO, to be replaced by Joi Ito. Lessig wanted to shift the focus of his work away from copy­right towards polit­i­cal cor­rup­tion. He said: “Although I have changed my focus, I’m still very much com­mit­ted to Cre­ative Com­mons and the Free Cul­ture cause,” Lessig said. “The work I intend to do with Change Con­gress is in many ways com­ple­men­tary to the work of Cre­ative Com­mons. Both projects are about putting peo­ple in power and enabling them to build a bet­ter sys­tem. I could not be more pleased to hand off the lead­er­ship of Cre­ative Com­mons to the extra­or­di­nar­ily pas­sion­ate and qual­i­fied Joi Ito.”

Ito’s back­ground was as an entre­pre­neur and ven­ture cap­i­tal­ist, and was the chair­man of the Cre­ative Com­mons board. Under his direc­tion, he’s over­seen Wikipedia switch­ing its main con­tent licence away from the GNU GPL to Cre­ative Com­mons Attribution-ShareAlike, bring­ing mil­lions more pieces of con­tent under the organisation’s umbrella. He also over­saw the launch of CC0 — a waiver that may be used by any­one wish­ing to per­ma­nently sur­ren­der the copy­right and data­base rights they may have in a work, thereby plac­ing it as nearly as pos­si­ble into the pub­lic domain.

Today, Cre­ative Com­mons has more than 350 mil­lion CC-licensed pieces of con­tent out in the wild, includ­ing albums by Nine Inch Nails and the web­site of the White House. The organisation’s recent efforts have focused on mak­ing the organ­i­sa­tion more global, edu­cat­ing the World Intel­lec­tual Prop­erty Organ­i­sa­tion about how CC works, and how copy­right should be addressed in a dig­i­tal age, as well as plan­ning ver­sion 4.0 of the licences.

 

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