“Original art by illustrator Freya C. Morgan”. Internet Archive.

Join Creative Commons, Internet Archive, and many other leaders from the open world to celebrate Public Domain Day 2024. The mouse that became Mickey will finally be free of his corporate captivity as the copyright term of the 1928 animated Disney film, Steamboat Willie, expires along with that of thousands of other cultural works on the first day of 2024.

The year 1928 brought us a host of still relevant, oft-revived and remixed culture, from H.P. Lovecraft’s classic horror story, “Call of Cthulhu” (originally published in Weird Tales; now currently a popular video game), to the Threepenny Opera, a critique of income inequality and the excesses of capitalism that is surprisingly on point for our current era.

And further, classic works of literature such as Orlando by Virginia Woolfe, Well of Loneliness by Radclyffe Hall, and Black Magic by Paul Mourad; children’s literature like House on Pooh Corner by A. A. Milne, which introduced the character Tigger, and Millions of Cats by Wanda Gág; movies like Charlie Chaplin’s The Circus, and Buster Keaton’s The Cameraman; and music like Dorothy Field’s “I Can’t Give You Anything But Love, Baby” and Cole Porter’s “Let’s Do It, Let’s Fall in Love” will grow the rich set of materials that are freely available to all of us as part of the public domain.

Join us for a virtual celebration at 10am PT / 1pm ET on 25 January, 2024, with an amazing lineup of academics, librarians, musicians, artists and advocates coming together to help illuminate the significance of this new class of works entering the public domain!

Of course our program wouldn’t be complete without a discussion of Generative AI, which to some has become a new kind of Eldritch God unleashed upon humanity—a Chtulhu of sorts—out to alter or control human reality. New AI technologies have raised all kinds of questions about human creativity, and the various monsters we must vanquish in order to preserve it. We’ll get into all that and more in our panel discussion of AI, Creativity and the Public Domain.

REGISTER NOW

This event is co-hosted by Internet Archive, Creative Commons, Authors Alliance, Public Knowledge, Library Futures, SPARC and the Duke Center for the Study of the Public Domain.

The post Celebrate Public Domain Day 2024 with us: Weird Tales from the Public Domain appeared first on Creative Commons.

As in previous sessions, our main objective was to drive copyright reform towards better sharing of copyright content in the public interest and in tune with the sharing possibilities of the digital environment. In this short session, we addressed the proposed broadcasting treaty and exceptions and limitations in our opening statement, as reported in the​​ “Statements” information document (SCCR/44/INF/STATEMENTS).

We also offered views on exceptions and limitations for cultural heritage institutions, i.e. libraries, archives and museums; you can watch our intervention on the WIPO webcast. These views are in line with our Open Culture Program’s recently launched initiative Towards a Recommendation on Open Culture (TAROC) which aims to develop policy to recognize the role of open culture to reach wider policy goals notably in relation to copyright and access and use of cultural heritage — see our TAROC Two-Pager in English, Shqip, français, Español, 日本語, Türkçe, italiano, عربي.

Overall, we are rather satisfied with the session’s outcomes. On broadcasting, we remain concerned that discussions on the draft broadcasting treaty are being maintained on the agenda despite evidence of a clear stalemate in the discussions; we are nonetheless heartened by the acknowledged need to work towards a balanced approach on exceptions and limitations in the draft treaty.

On exceptions and limitations, we are pleased that the SCCR Secretariat has undertaken to prepare a detailed implementation plan for the Work Program on Exceptions and Limitations; in CC’s views, this plan should provide for open and transparent engagement opportunities and wide participation from civil society of which CC is a leading voice. It should notably allow for real progress on substantive issues to support meaningful access and use of cultural heritage for preservation and other legitimate purposes.

We also welcome the organization of a virtual panel discussion on cross-border uses of copyright works in the educational and research sectors open to all member states as well as observers. As an accredited observer, CC places high value on broad and inclusive participation to ensure balanced and diverse perspectives can be brought to the table for a constructive debate. We recall that licensing falls short of addressing the problems that libraries, museums, archives, educational and research institutions, as well as persons with disabilities, face on a daily basis. Licensing is not a substitute for robust, flexible, mandatory exceptions and limitations to empower those who teach, learn and research, those who share in and build upon cultural heritage, and people with disabilities.

We note Group B’s Proposal Information Session on Generative AI and Copyright (SCCR/44/8) and look forward to the Secretariat organizing an open, inclusive, and balanced session at the next SCCR under the item of Copyright in the Digital Environment. As we have stated at the WIPO Conversation on Generative AI and Intellectual Property last September, generative AI raises important issues and is having an enormous impact on creativity, the commons, and better sharing, i.e., sharing that is inclusive, equitable, reciprocal, and sustainable. Our consultations on the matter have revealed a wide variety of views among creators, AI developers, and other stakeholders in the commons. They have also shed light on the fact that copyright is but one lens through which to consider generative AI; what is more, it is a rather blunt tool that often leads to black-and-white solutions that fall short of harnessing all the diverse possibilities that generative AI offers for human creativity. Our interventions on copyright and generative AI in the United States and the European Union contexts attest to those nuanced views. We thus call on the Secretariat to ensure the session will offer a balanced and representative set of perspectives.

We look forward to participating in the Committee’s next session, to take place from April 15 to 19, 2024, and to bring our expertise on copyright, better sharing of cultural heritage, and generative AI in order to help create a fairer and more balanced international copyright system in the public interest.

→ To stay informed about our policy and open culture work:

• Visit our blog for regular updates on our work on AI
• Sign up for our open culture mailing list
• Join the open culture platform
• Join the copyright platform
• Visit our website on open culture

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The post CC’s Key Insights from WIPO’s Meeting on Copyright appeared first on Creative Commons.

Since our founding, we have sought out ways that new technologies can serve the public good, and we believe that generative AI can be a powerful tool to enhance human creativity and to benefit the commons. At the same time, we also recognize that it carries with it the risk of bringing about significant harm. We used this opportunity to explain to the Copyright Office why we believe that the proper application of copyright law can guide the development and use of generative AI in ways that serve the public and to highlight what we have learned from our community through the consultations we have held throughout 2023 and at our recent Global Summit about both the risks and opportunities that generative AI holds.

In this post we summarize the key point of our submission, namely:

• AI training generally constitutes fair use
• Copyright should protect AI outputs with significant human creative input
• The substantial standard similarity should apply to Infringement by AI outputs
• Creators should be able to express their preferences
• Copyright cannot solve everything related to generative AI

AI training generally constitutes fair use

We believe that, in general, training generative AI constitutes fair use under current U.S. law. Using creative works to train generative AI fits with the long line of cases that has found that non-consumptive, technological uses of creative works in ways that are unrelated to the expressive content of those works are transformative fair uses, such as Authors Guild v. Google and Kelly v. Arriba Soft. Moreover, the most recent Supreme Court ruling on fair use, Andy Warhol Foundation v. Goldsmith, supports this conclusion. As we commented upon the decision’s release, the Warhol case focus on the specific way a follow-on use compares with the original use of a work indicates that training generative AI on creative works is transformative and should be fair use. This is because the use of copyrighted works for AI training has a fundamentally different purpose from the original aesthetic purposes of those works.

Copyright protection for AI outputs subject to significant human creative input

We believe that creative works produced with the assistance of generative AI tools should only be eligible for protection where they contain a significant enough degree of human creative input to justify protection, just like when creators use any other mechanical tools in the production of their works. The Supreme Court considered the relationship between artists and their tools vis-a-vis copyright over 100 years ago in Burrow-Giles v. Sarony, holding that copyright protects the creativity that human artists’ incorporate into their works, not the work of machines. While determining which parts of a work are authored by a human when using generative AI will not always be clear, this issue is not fundamentally different from any other situation where we have to determine the authorship of individual parts of works that are created without AI assistance.

Additionally, we believe that developers of generative AI tools should not receive copyright protection over the outputs of those tools. Copyright law already provides enough incentives to encourage development of these tools by protecting code, and extending protection to their outputs is unnecessary to encourage innovation and investment in this space.

Infringement should be determined using the substantial similarity test

We believe that the substantial similarity standard that already exists in copyright law is sufficient to address where AI outputs infringe on other works. The debate about how copyright should apply to generative AI has often been cast in all-or-nothing terms — does something infringe on pre-existing copyrights or not? The answer to this question is certainly that generative AI can infringe on other works, but just as easily it may not. As with any other question about the substantial similarity between two works, these issues will be highly fact specific, and we cannot automatically say whether works produced by generative AI tools infringe or not.

Creators should be able to express their preferences

In general, we believe there is value in methods that enable individuals to to signal their preferences for how their works are shared in the context of generative AI. In our community consultations, we heard general support for preference signals, but there was no consensus in how best to do this. Opt-ins and opt-outs may be one way, but we do not believe they need to be required by US copyright law; instead, we would like to see voluntary schemes, similar to approaches to web scraping, which allow for standardized expression of these preferences without creating strict barriers to usage in cases where it may be appropriate.

Transparency is necessary to build trust — Copyright is only one lens through which to consider AI regulation

We urge caution and flexibility in any approach to regulating generative AI through copyright. We believe that copyright policy can guide the development of generative AI in ways that benefit all, but that overregulation or inappropriate regulation can hurt both the technology and the public. For example, measures that improve transparency into AI models can build trust in AI models by allowing outside observers to “look under the hood” to investigate how they work. But these measures should not be rooted in copyright law. Copyright is just one lens through which we can view generative AI, and it is ill equipped to deal with many of the social harms that concern us and many others. Attempting to use copyright to solve all of these issues may have unintended consequences and ultimately do more harm than good.

We are happy to see the Copyright Office seeking out guidance on these many difficult questions. We will have to wait to see what comes from this, but we will hope for the best, and continue to engage our community so we can more fully understand what role generative AI should play in building the commons and serving the public good.

Read CC’s full submission to the Copyright Office >

The post CC Responds to the United States Copyright Office Notice of Inquiry on Copyright and Artificial Intelligence appeared first on Creative Commons.

“This modified screen capture of video from WIPO Conversation on Intellectual Property (IP) and Frontier Technologies Eighth Session” by WIPO is licensed via CC BY 4.0.

Today Creative Commons (CC) delivered a statement to the World Intellectual Property Organization (WIPO) Conversation on Generative AI and Intellectual Property, as part of our engagement in global policy discussions around the important issues raised by these new technologies and their impact on creativity, the commons, and better sharing, i.e. sharing that is inclusive, equitable, reciprocal, and sustainable. In this blog post, we share the statement as delivered by Brigitte Vézina, CC’s Director of Policy and Open Culture.

Watch the video of CC’s remarks >

Thank you Chair for giving me the floor on behalf of Creative Commons, the organization behind the eponymous copyright licenses that have released more than 2,5 billion works into the commons to date.

At CC we know generative AI, without proper guardrails, runs the risk of being exploitative and damaging the commons, yet it also has the potential to enhance it like never before. This conundrum leaves us with many hard questions:

• How can creators be fairly rewarded for building our shared commons?
• How can we support the new forms of creativity enabled by AI?
• How do we support creators through these unprecedented technological developments?

In search of answers we held community consultations over the past months (including a symposium in New York City last week). As one would expect, we garnered a wide variety of views:

• Some creators are very concerned about AI and perceive it as a serious threat to their livelihood — at the same time many artists are relishing the new possibilities offered by AI as it pushes the boundaries of human creative expression and can make creativity more equitably accessible, for example, for people with disabilities. We just published an open letter from over 70 artists* who use generative AI to help surface their experiences and views.
• Some developers want unbridled freedom to build their model — but some are looking forward to working with opt-outs, i.e. respecting the wishes of creators who do not want to have their content trained upon, or to train on openly licensed content. We are already seeing efforts to help creators signal their preferences and norms and standards are emerging through community practice and portend fresh and innovative approaches.

In this context, WIPO should help develop norms and practices that are flexible and that will work to increase transparency and empower creators with choices that reflect their values and aspirations. WIPO should approach this with fairness and sustainability in mind — instead of promoting an expansion of copyright, it should ascertain its intrinsic balance and promote the commons on which all creativity depends. In particular, since all creativity builds on the past, copyright needs to continue to leave room for people to study, analyze and learn from previous works to create new ones, including by analyzing past works using automated means.

Mr. Chair, copyright is only one lens through which to consider generative AI. Copyright is a rather blunt tool that often leads to black-and-white solutions that fall short of harnessing all the diverse possibilities that generative AI offers for human creativity. Copyright is not a social safety net, an ethical framework, or a community governance mechanism — and yet we know that regulating generative AI needs to account for these important considerations if we want to support our large community of creators who want to contribute to enriching a commons that truly reflects the world’s diversity of creative expressions.

Thank you, Mr. Chair and to WIPO for hosting this important conversation.

Subscribe to CC’s email newsletter to stay informed about all our work with AI, culture and creativity, and more, and continue the discussion on AI and the commons at the CC Global Summit during 3–6 Oct 2023 in Mexico City.

* The Open Letter: Artists Using Generative AI Demand Seat at Table from US Congress is currently signed by over 180 artists and continues to add more.

The post CC Defends Better Sharing and the Commons in WIPO Conversation on Generative AI appeared first on Creative Commons.

“EU Pixelated” by Creative Commons was cropped from an image generated by the DALL-E 2 AI platform with the text prompt “pixel art of computer code streaming across an EU flag.” CC dedicates any rights it holds to the image to the public domain via CC0.

As a part of CC’s continuing engagement in policy to shape generative artificial intelligence (AI), Brigitte Vézina, our Director of Policy and Open Culture, participated in a June session hosted by the European Internet Forum: Generative AI, Art & copyright: from creative machines to human-powered tools. The panel was held in the framework of EU negotiations on the development of the Artificial Intelligence Act, one of the world’s first regulations dedicated to AI.

The panel was chaired by MEP Dragos Tudorache, Rapporteur on the AI Act, and brought together speakers representing rightholders in the creative industries, an AI developer, and CC as the only representative of civil society present to defend the public interest. The debate touched on several copyright-related issues related to AI training, transparency and safeguards, AI-generated outputs, and more.

In our panel remarks, we emphasized how, for many years, we have been examining the interplay between copyright and AI — exploring ways in which these technologies and practices could help people build on and contribute to the commons, stimulate new creativity, and foster better sharing, i.e. sharing that is inclusive, equitable, reciprocal and sustainable.

Going forward, it is clear that a diverse, global community must be involved in guiding the regulation of generative AI, with expertise spanning the fields of copyright, certainly, but also ethics, privacy and data protection, and fundamental human rights, so that AI’s promises are fulfilled and its perils, averted.

CC will continue our work to represent the public interest in negotiations around AI policy, as well as continue to engage and grow our broad, global community to refine and share understanding of AI’s impact on the commons. Join us at our Global Summit in Mexico City during 3–6 October 2023 where our theme is AI & the Commons.

The post CC Joins Key AI Panel in Brussels appeared first on Creative Commons.

In a rare move, the EP, European Commission, and European Council agreed to start three-way negotiations — the so-called trilogues — immediately after the vote at 9pm CET today. This need for speed underscores the political imperative of reaching a deal before next year’s EP elections on the high-stakes, hot-button draft AI Act, which is the regulation that will set the rules around AI in the EU space. In fact, the Act is bound to shape how policymakers approach regulating AI in many other jurisdictions and at the international level.

Creative Commons (CC) has actively engaged in the AI Act process (see here and here) and welcomes the EU’s leadership on defining a regulatory framework around this impactful technology. In this blog post, we highlight the issues most likely to impact the topics we focus on: growing the commons and better sharing of knowledge and culture.

Background and key issues for CC

The AI Act process started in 2021 with a proposal by the Commission and has since been debated in Parliament and Council, whose approaches will need to converge in order for an agreement to be reached and the Act adopted.

In its initial conception, the Act focused on regulating certain uses of AI. In particular, it seeks to ban certain uses of AI, such as broad-based real-time biometric identification for law enforcement in public places. It also seeks to ensure that certain precautions are taken before deployment of uses deemed “high-risk,” such as the use of AI for access to education, employment, financial credit, or other essential services.

However, in the last year, the focus expanded. The Council incorporated provisions with respect to “general purpose AI” (GPAI), and the Parliament subsequently created requirements specifically for “foundation models.” Rather than addressing specific high-risk uses, these provisions impact technologies that have a wide range of uses, both potentially beneficial and harmful, and of varying degrees of risk. Moreover, the Parliament added specific requirements for generative AI, including requirements related to transparency of copyright works used to train these models.

At CC, we support the overall aims of the draft legislation, but we want to ensure that these new points of focus are handled in a careful, narrowly-tailored way. Specifically, here is what we will be focusing on as we engage policymakers going forward.

CC comments on specific issues

For many years, CC has focused on the interplay between copyright and AI, because of the way this technology can foster better sharing, helping people build on and contribute to the commons, spurring on new creativity and knowledge sharing. The Act poses several challenges to these aims, and we address them in turn below.

Free and open source software (FOSS)

FOSS provides important benefits, including by improving transparency and auditability of AI systems and by making it easier for a wide variety of players, including nonprofits, start-ups, researchers/academics and SMEs, to innovate, test and compete in the market. As such, CC’s views are that collaborative development of FOSS and merely making FOSS available in public repositories should not subject developers to the AI Act’s requirements.

GPAI, foundation models, and FOSS

We appreciate the concerns policymakers have about how general purpose tools can be used “downstream” by other actors in harmful ways. It is particularly important that downstream users have sufficient information about the underlying model in order to address possible risks.

At the same time, it is important to treat general purpose tools distinctly from tools aimed for a particular, high-risk use. For multi-purpose tools, it can be impractical for developers to implement risk management in ways suited for narrowly defined, “high risk” AI uses. In turn, imposing the same rules on GPAI creators may create significant barriers to innovation and drive market concentration, leading the development of AI to only occur within a small number of large, well-resourced commercial operators. With that in mind, we also want to ensure there are proportional requirements for FOSS “foundation models” that are “put on the market” or “put into service,” tailored to different services and providers.

In particular, we have concerns when it comes to FOSS developers. As above, merely developing and making available in a repository a FOSS “foundation model” or other general purpose tool should not subject developers to the Act’s requirements.

Transparency of training data and copyright

At CC, we are convinced that greater openness and transparency in the development of AI models can serve the public interest and facilitate better sharing by building trust among creators and users. As such, we generally support more transparency around the training data for regulated AI systems.

The Parliament version of the text includes specific provisions with respect to generative AI models, requiring providers to “document and make publicly available a sufficiently detailed summary of the use of training data protected under copyright law.” On the one hand, this can be a sensible way to ensure transparency, particularly for rightsholders who wish to exercise their right to “opt-out” of exceptions to copyright pertaining to AI training pursuant to Article 4 of the EU Copyright Directive in the Digital Single Market. On the other hand, it is important that this requirement is applied proportionately; developers should not be expected to literally list out every item in the training data, but rather provide useful summaries, such as use of a particular dataset like Common Crawl or LAOIN-5B, which rightsholders can then use to determine whether their works were used or not.

Generative AI and copyright generally

The Parliament’s text also requires that generative AI model providers take “adequate safeguards against the generation of content in breach of Union law, in line with the generally acknowledged state of the art, and without prejudice to fundamental rights, including the freedom of expression.” While perhaps to reaffirm that developers should comply with copyright law, this is likely to create much more uncertainty; at worst, it could be read to suggest a more sweeping requirement for developers to implement copyright filtering tools that could address perfectly lawful uses. We encourage policymakers to take steps to ensure this does not become a backdoor expansion of copyright law; to the extent policymakers want to consider this broader topic, they should do it separately, rather than tacked on to the AI Act at the eleventh hour.

Looking ahead

Regarding the start of the trilogues, Creative Commons CEO Catherine Stihler said: “Creative Commons remains committed to finding fair and lasting solutions to ensure AI can support creators and grow the commons, in line with our strategy of better sharing and our values of openness, transparency, fairness, and creativity. At CC, we will continue to proactively engage with EU institutions as the trilogues commence, in order to achieve our mission to empower individuals and communities around the world by equipping them with technical, legal and policy solutions to enable sharing of knowledge and culture in the public interest.”

If you are in Brussels on 28 June, 2023, do not miss Creative Commons’ Brigitte Vézina speaking at the European Internet Forum’s Generative AI, art & copyright: from creative machines to human-powered tools event, an in-person panel organized by EIF with opening remarks by MEP Dragos Tudorache, Parliament co-rapporteur on the AI Act — you can find more information on the program and register on the EIF’s website.

The post European Parliament Gives Green Light to AI Act, Moving EU Toward Finalizing the World’s Leading Regulation of AI appeared first on Creative Commons.

“Orange Prince” by Andy Warhol.

The United States Supreme Court released its opinion today in Andy Warhol Foundation v. Goldsmith. While it’s hard to predict the full ramifications of this decision at this point, our initial opinion is that this decision is not ideal, but also not the death knell for transformative fair use that many feared it could have been. We address three points below.

What use is fair?

First, the Court’s focus on Warhol’s specific “use” of Lynn Goldsmith’s photograph of Prince provides clarification on what the word “use” means as part of the fair use analysis, and narrows the scope of the opinion in ways that will allow for many future fair uses.

Fair use analysis in the United States depends on a four-factor test, where courts must consider all four factors and decide how to balance each one. The Goldsmith case focuses entirely on factor 1: the “purpose and character of the use.” (In particular, it was argued that Warhol’s Orange Prince was a “transformative” use: where the original work served one function, but has a different purpose and character because it has been “transformed” by changing the context of the use.) The copyright statute does not specify what “use” means in this context, and indeed there are many different ways to interpret it. For example, in this case, “use” could mean:

• Andy Warhol’s use of Lynn Goldsmith’s photograph of Prince Rogers Nelson to create a series of silk screen prints called The Prince Series;
• Warhol’s use of the photograph to create Orange Prince without it ever appearing on a magazine cover;
• The use of Orange Prince as a portrait of Prince for a magazine cover/profile piece.

Here, the Court narrowly focuses on this third meaning: The commercial “use” of Orange Prince as a published magazine portrait of Prince. The Court found the “purpose” of these two images of Prince to be identical: Both featured in magazines as portraits of the same musician. This narrow similarity will enable later would-be transformative users to distinguish their use from the original in a way that makes it different from the fact pattern in this case, suggesting that the fair use analysis of this factor would be different. That is, if a use does not serve the exact same function as the original, then this decision leaves the door open to argue that it has a different “purpose” from the original. The decision’s distinctions between these different kinds of uses suggest that a case over this very same work used for another purpose might have had a different outcome.

Additionally, the Court’s particular focus on the commerciality of this use is not ideal. While commercial purpose is part of the analysis of this factor, it is common for commercial uses to still be fair uses. As the Court itself notes, Campbell v. Acuff-Rose (perhaps the most famous fair use case) found an explicitly commercial use to be fair, and was clear about commercial use not barring a finding of fair use. We hope that this case is not read to walk back those statements, harming users who want to make transformative commercial uses of a work.

Derivative v. transformative

Second, the Court’s attempt to draw a line between a derivative work and a fair use does not provide much clarity to guide future uses.

Much of the confusion over distinguishing a derivative work and a fair use involves what it means to “transform” a work, and the degree of that transformation. Under U.S. law, one of the rights that authors have over their works is the right to create or authorize the creation of “derivative works.” As defined by statute, a derivative work is “a work based upon one or more preexisting works” that is “recast, transformed or adapted.” (emphasis added). At the same time, however, since Campbell, one of the most important parts of the fair use analysis has been whether a secondary work is “transformative.” Because of this, there is a tension between what is a transformation in the context of a derivative work and what is a transformative fair use. (This is often one of the most difficult points for users of CC-licensed works to navigate, as well, especially where the license is one that places conditions upon derivative works.)

Unfortunately, the Court does not successfully relieve this tension. While we agree with the Court that “overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works” and that “the degree of transformation required to make ‘transformative’ use of an original must go beyond that required to qualify as a derivative,” the decision does not provide clear guidance on what this actually means.

Fair use: An engine of creativity

Third, as Justice Kagan writes in a dissent joined by Chief Justice Roberts, the majority seems to undervalue the importance of transformation in the fair use inquiry, and indeed, may undervalue fair use more broadly. Justice Kagan writes: “Why do we have ‘fair use’ anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their ‘public availability.’ … But that description sells fair use far short. Beyond promoting ‘availability,’ fair use itself advances creativity and artistic progress.” Moreover, “when a transformation of the original work has occurred, the user of the work has made the kind of creative contribution that copyright law has as its object.” By failing to focus on how Warhol’s piece transformed the original photograph and added a new meaning and message to the original, the Court’s opinion may influence future decisions to also undervalue this point and undermine the purpose of fair use itself.

Ultimately, this decision is disappointing to champions of fair use, but does not appear to change much about judgments on fair use from what we’ve seen before. Transformative fair use has always been difficult to rely on, with the possibility of a court’s judgment differing from the artist’s as to when a fair use was made. It is promising to note how much of what we believe to be fair use the Court also holds up as examples to distinguish — Warhol’s own soup cans, for example, which don’t occupy the same place in the market as the product on supermarket shelves. Moreover, the Court’s narrow focus on a single, very specific, use — the commercial use of one portrait to serve as another portrait — continues to leave a lot of room for more easily distinguished transformative uses like remixes and other forms of appropriation art.

“Campbell’s Soup Cans” by Andy Warhol.

CC continues to believe that fair use is essential to creativity and culture. Justice Kagan’s dissent aligns well with CC’s views on transformation and creativity; in particular, that “artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others.” All art incorporates and transforms what came before it, and depends on the ability to reuse and reinterpret previous works, and the exclusivity of copyright should block that only as far as necessary to support an environment where artists can continue to create. This was a case with a particularly challenging set of facts, where there was a great deal of similarity to consider in the fair use analysis, and we believe that even after this decision, fair use continues to be alive and well in the United States, and that the Court’s narrow decision changes little about that.

The post Everything might be OK! <i>Warhol v. Goldsmith</i> appeared first on Creative Commons.

“The EU Flag and Castor and Pollux” by waldopics is licensed under CC BY 2.0 .

Earlier this year, the European Commission started a new consultation on “The future of the electronic communications sector and its infrastructure.” On the one hand, it’s good that policymakers are examining how to expand broadband access and ensure the capacity of networks continues to expand and support helpful innovation. On the other hand, the consultation is anchored on one particular, problematic policy idea — a new legal right for telecom companies to require bonus payments from content and application providers, imposing new tolls for sending and “generating” traffic. Content and application providers would not just pay for their connection to the Internet (as they already do today), but then have to pay again in order to reach a consumer when the consumer requests data from them.

This sort of approach has long been advanced by incumbent telecom companies, opposed by virtually every other relevant constituency, and rejected repeatedly around the world. It would undermine open Internet access — sometimes called “net neutrality” — and replace today’s well-functioning system of payments with a regulated morass, where consumers will ultimately pay the price. Content and application providers (in particular smaller players) will either be impeded from delivering their traffic at all due to costs, or will pass the costs on to consumers themselves.

CC was pleased to join with the International Federation of Library Associations and Institutions and Europeana Foundation in a submission opposing this misguided approach (read the full submission). We highlight the particular the impacts on knowledge and cultural heritage institutions:

“For the institutions and communities we support, these new tolls pose particular concerns. Knowledge and cultural institutions act as repositories for large amounts of data — we are responsible for collecting, storing, and making available all sorts of media and information to Europeans, often under public mandates. While an individual user may not make use of the entire catalog of information, collectively serving our communities can mean serving large amounts of data. Moreover, knowledge and cultural institutions serve academics and researchers who do require access to large amounts of the corpus for their public-interest activities.

We fear that, under this proposal, such institutions could be considered “large traffic generators” and forced to pay new fees. As public serving institutions, they already face significant budget strains, and new fees would inevitably mean limiting the services we provide, and using our resources to bolster the turnover of telecom operators rather than to deliver on our missions.

Yet it is important to note here that a simple carve-out for such institutions would not be sufficient. For one thing, the fees would still frustrate knowledge and cultural production and dissemination in ways that would run counter to the goal of encouraging artistic and expressive freedom, as well as having knock-on effects on us. What’s more, knowledge and cultural institutions may rely on commercial services to host and serve our traffic, and thus to the extent those providers would face new fees and pass those costs on, we would still be impacted.”

As we note in our submission, there are a wide variety of other ways to support open, robust, affordable internet access, including expanding access to spectrum for wireless services and community networks, modernization of universal service funding, and collaborating with knowledge and cultural institutions, which in some cases already work to provide Internet access to surrounding residents. We hope these and other ideas will become the focus as this consultation moves forward.

The post Knowledge & Cultural Institutions Defend Net Neutrality in EU appeared first on Creative Commons.

Excited to be @WIPO in Geneva to attend the #SCCR on behalf of @creativecommons #copyright #publicdomain #exceptions #culturalheritage #bettersharing pic.twitter.com/bW6F6ynVsW

— Brigitte Vézina (@Brigitte_Vezina) March 15, 2023

Wikimedia denied observer status…again

We once again support the Wikimedia Foundation, who have yet again been denied accreditation as an observer to WIPO’s standing committee on copyright and related rights (SCCR).

CC’s policy agenda at WIPO

We generally drive copyright reform towards better sharing of copyright content in the public interest and in tune with the sharing possibilities of the digital environment. We promote better sharing and open culture, and recently published a Call to Action to policymakers that offers a basis for a shared vision on better sharing in the cultural context. We also share many of the views co-developed by our partners in the A2K coalition, including Communia, Centrum Cyfrowe and Intellectual Property Institution. 

Our views on the draft broadcasting treaty

Regarding the discussions on a draft broadcasting treaty, we voiced our opposition to the Second Revised Draft Text of the Broadcasting Treaty. While we agree that broadcast content plays a key role in today’s society, the Draft would deal a severe blow to the public domain, threaten to unduly curtail the possibilities offered by open licensing, and is antithetical to people’s freedom to share and right to equitable access to knowledge. 

Our two main concerns were that the Draft (1) lacks robust, mandatory exceptions and limitations to guarantee access to broadcast content for purposes of research, education, journalism, cultural preservation and creativity; (2) threatens to unduly curtail the possibilities offered by open licensing and restrict access to or distribution of works already licensed under a Creative Commons license, as noted in the past. 

This is particularly concerning, given the way that open licenses like Creative Commons licenses are one way to improve distribution, allow for remix creativity, and enrich the resources available on popular free knowledge platforms such as Wikipedia. For example, in 2020, German public broadcaster ZDF released dozens of videos of its documentary series Terra X under CC licenses, leading to a massive increase in the amount of content available under open licenses for the benefit of users across the world. The videos on climate change published in 2019 soon found their way into prominent Wikipedia articles, leading to hundreds of thousands of views. 

Our views on exceptions and limitations

Preservation, access, sharing, use, and reuse of cultural heritage are essential ingredients of thriving and resilient societies and are demonstrated contributors to sustainable development. Alas, overly restrictive or outdated copyright laws continue to raise unnecessary barriers around cultural heritage. CC stewards legal tools to enhance the sharing of a wide variety of creative content, including cultural heritage. But while they advance global sharing, they are not designed to establish a general, permissive framework for everyone — that is the role of clear, effective, and consistent limitations and exceptions.

We welcomed the Toolkit on Preservation (SCCR/43/4); it is a valuable resource that provides important guidance. However, this document fails to consider the crucial aspect of access in preservation efforts. Preservation is not just about storage, it is about how our heritage lives on in the interpretations of researchers, in the recreations of creators, and in the minds and hearts of every member of the public enjoying their fundamental right to access cultural heritage. Access is a precondition for preservation that is meaningful, inclusive and sustainable. Moreover, this document is not a substitute for an international normative instrument that would guarantee clear and certain exceptions for preservation at the international level. 

Conclusions and next steps

Overall, we are pleased with the many steps forward taken by the Committee at this session. First, on exceptions and limitations, we welcome the SCCR’s adoption of a work program based on the Proposal by the African Group for a Draft Work Program on Exceptions and Limitations (SCCR/43/8), which we supported. The program calls on the Committee to discuss “priority issues” including:

1. to promote the adaptation of exceptions to ensure that laws at the national level enable the preservation activities of libraries, archives, and museums, including the use of preserved materials;
2. to promote the adaptation of exceptions to the online environment, such as by permitting teaching, learning and research through digital and online tools; and
3. to review implementation of the Marrakesh Treaty and how to ensure that people with other disabilities (also covered by the Convention on the Rights of Persons with Disabilities) can benefit from similar protections, in particular in order to benefit from new technologies.

The program also proposes that discussions be facilitated by the Committee on the UNESCO Recommendation on Open Science (2021) and its implications for international copyright laws and policies, an initiative that we support, given CC’s involvement in the development of this important UNESCO instrument. 

We are also pleased with its decision to start negotiations with a view to “preparing objectives and principles and options for implementation” on exceptions and limitations. 

Second, regarding the draft broadcasting treaty (SCCR/43/3), we commend the Committee for its decision to revise the document, including its limitations and exceptions provisions, and look forward to the Chair’s Third Revised Draft Text, which will be used as a basis for discussion at the next SCCR session. 

Third, the Committee agreed that there should be a three-day session of the SCCR (SCCR/44) during the week of November 6, 2023. We welcome this opportunity to intensify substantive discussions and look forward to actively participating in shaping a fairer and more balanced copyright system that supports better sharing in the public interest. 

Read our full statement →

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The post CC at WIPO SCCR 43: Progress Made on Exceptions and Limitations and Draft appeared first on Creative Commons.

The Creative Commons Copyright Platform is a collaborative space for people who are interested in copyright policy issues. We work in a transparent, professional, ethical and public manner to undertake projects and activities aimed at fulfilling agreed-upon, collaboratively developed goals and principles. 

In 2023, we have a fund of $20,000 to support copyright advocates and practitioners to identify, plan and coordinate copyright law and policy-related activities. We are especially excited about receiving community proposals for funded-activities this year, because it is the first year since 2020 that we are able to support in-person activities. To submit a proposal, please request to join the CC Policy Mailing List, and fill out the proposal form by March 20.

In addition to the funded activities, the Copyright Platform hosts monthly meetings where guest speakers are invited to lead discussions on topics of interest, and Platform members share copyright-related news/announcements from across the globe.

Do you also want to get involved? Don’t hesitate!

• • Sign up to the CC Policy mailing list
  • Join the #cc-copyrightreform Slack channel
  • Participate in CC Copyright Platform calls—they are announced in the Slack channel and on the mailing list

The post Calling All Copyright Advocates: CC Copyright Platform Now Accepting Funding Proposals appeared first on Creative Commons.