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.
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:
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.
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.”
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.
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.