The Creative Commons

The Creative Commons is an organization born of the effort to rethink the rules and values around the production and dissemination of creative (creativecommons.org). The Creative Commons offers creators multiple options for retaining some control over the use of their work. Protecting financial return is important, but the monetary concerns need to be balanced with “fair use” and the right of the public to engage with cultural phenomena.

The Creative Commons’s array of licenses can be seen at “Choose License” link at creativecommons.org/license. An artist can check off the particular areas that apply for a real or hypothetical work, and the tool will suggest a license tuned to their desired aims. The custom licensing tool has an excellent interface and is an effective way to educate artists and other users on the intricacies of rights management issues, as well as proposing concrete solutions at the end of a short process. The Creative Commons could easily partner with other organizations to design the best possible internet-based system for the independent media arts field.

Nicole Betancourt said that MediaRights.org was one of the first groups to offer Creative Commons licenses. MediaRights.orgs uses an online toolkit with various functions to connect their base of 8,000 members. Once a program is listed on the site, it notes whether or not it is covered by a Creative Commons license. When asked about whether any of their members had problems with the ideas of the Creative Commons, she replied that there were very few, in part because their constituency is younger and more activist-oriented, and consequently the copyright battles aren’t so intense.

The Creative Commons doesn’t actually house the digitized programs. Rather, it provides permutations of legal rights scenarios on how work can be used, according to the wishes of the owners/creators. Therefore, any work with the Creative Commons would need to be in relation to work with archives and other relevant areas for the arts fields. At the very least, connecting the arts fields to the insights of the Creative Commons would be a service to those fields.

Underpinning the thinking and work of the Creative Commons and others is a sense of a public commons that can be fed and used by a community of many people willing to participate. It is a fine effort toward real interdependence and provides some tangible and useful tools.

Alternative Payment Systems

One way to break the logjam over intellectual property rights and to get away from the false accusations reducing opposing positions to piracy and greed is to alter the system for how talent and work are compensated. Rather than assume that the current industry norms will forever be the case, a new generation of radical thinkers is proposing alternatives.

One such thinker is William Fisher, director of the Berkman Center at Harvard. He has spent several years devising an alternative compensation system that would enable the entertainment industry to restructure its business model. Fisher has lamented the energy that has gone into “interpreting or changing legal rules in hopes of defending older business models against the threats posed by the new technologies. These efforts to plug the multiplying holes in the legal dikes are failing and the entertainment industry has fallen into crisis.” His book, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford University Press), provides ample food for thought concerning the opportunities presented by the new technological innovations.

Fisher has proposed an administrative compensation system that would provide an alternative to the current copyright regime. To paraphrase his text, the owner of the copyright in an audio or video recording who wished to be compensated for its use would register it with the Copyright Office and would receive, in return, a unique file name that would be used to track its distribution, consumption and modification. The government would raise the money necessary to compensate copyright owners through a tax — most likely, a tax on the devices and services that consumers use to gain access to digital entertainment. Using techniques pioneered by television rating services and performing rights organizations, a government agency would estimate the frequency with which each song and film was listened to or watched. The tax revenues would then be distributed to copyright owners in proportion to the rates with which their registered works were being consumed.

The BBC’s Creative Archive

Rethinking intellectual property issues need not be pipedreams or anomalous experiments that don’t have much weight in the marketplace. Larger commercial concerns are realizing that they have to try options other than litigation to handle their dilemma with new technologies that facilitate access to programming. David F. Poltrack, CBS Television’s executive vice president for research and planning, was recently quoted on the subject, saying, “We have to try as an industry to get ahead of this and give the audience an attractive model before the illegal file-sharer providers meet their needs.” Many corporate leaders are coming to the conclusion that they can make money and suffer far less from the deployment of new technological innovations if they create the opportunity to access content freely.

One major player doing just this is the BBC, which decided in 2004 to launch the Creative Archive project and its Flexible TV initiative. The Creative Archive will make huge amounts of audio and video clips available to the public for noncommercial viewing, sharing and editing. For now, the BBC archive would only be available to British citizens who pay the yearly TV license fee, but at least the BBC is following through on its mandate and opening up access to its programming archive. The BBC has become a leader in deploying new delivery tools like BitTorrent through its Flexible TV initiative. (Sidebar # 5: BitTorrent.)

The BBC plans to license its materials using a system similar to Creative Commons. Lawrence Lessig, a Stanford law professor and founder of Creative Commons, said the BBC’s plan would help the world understand that there is more at stake in the copyright war than “piracy.” “If the archive succeeds... then that will drive demand for computers, broadband and software to enable that creativity,” he said. “Businesses — beyond the content industry — will recognize just what’s at stake.” He went on to say “The announcement by the BBC of its intent to develop a Creative Archive has been the single most important event in getting people to understand the potential for digital creativity, and to see how such potential actually supports artists and artistic creativity,… If the vision proves a reality, Britain will become a centre for digital creativity, and will drive the many markets — in broadband deployment and technology — that digital creativity will support.”

The directors of the Creative Archive plan to release a wider array of programming over time. They will have to advance carefully, as there are many preexisting legal impediments to making programming available via the Internet, even if for non-commercial uses only.

The BBC experiment is very interesting, even though for now only those already paying the annual BBC license fee can use it. It is a good example of how a major institution can help the media field advance by taking a chance on different and more generous approaches for access to knowledge and creative output. Having a major player like the BBC do an experiment like this speaks well for future possibilities, as well as the benefits that can be accrued from a system where the public invests in public media and gets benefits as a result.

Conclusion

The digital domain has been and will remain in flux as multiple new transitional media delivery technologies are deployed. The rapid proliferation of DVD players and discs has followed a pattern akin to that of videocassette recorders and tapes in previous years, but has advanced with even greater speed. DVD culture has helped connect independent works to larger audiences than have been possible in previous years and can even approach the numbers of audiences for television programs. Additionally, DVD culture has helped to reclaim a space for those works that generate very little demand and that have often fallen off of the radar due to the traditional norms of the media marketplace. The recent “Long Tail” article, by Wired Magazine’s editor Chris Anderson, makes a compelling case that digital media such as DVDs means no program need ever be out of print.

DVD culture faces many challenges in the future, primarily from online and wireless delivery technologies. It remains to be seen how DVD culture meets these challenges in the future. For now, there are encouraging examples of DVD culture adapting to the competitive challenges keeping inventories low, with on-demand publishing strategies such as those proposed by Custom Flix. Already, Netflix has demonstrated how the smart use of reputation-based systems and matching technologies can greatly increase demand for their DVDs.

Connecting DVD culture with new developments in online peer-to-peer delivery, such as BitTorrent, Kontiki and others will take some time. However, there is every reason to believe that a helpful synthesis can occur. For example, the delivery of programs via online sources can reduce the need for shipping costs and inventories of independent media. But the pleasures of enabling online downloads run up against the capacity of home and office computers, and most P2P enthusiasts envision some kind of external storage device to handle large quantities of downloads. The DVD is poised to be a simple and available storage device to do just that, even before the deployment of new HD DVDs with exponentially more storage capacity.

What “digital” can give with one hand, it can take away with the other. It’s important to stay away from binary thinking when analyzing all things digital. For example, digital technologies and the Internet can compress space, connecting people in new and effective ways. Digital technologies can also capture and process high quality images at a very low cost. But the complexity of digital technologies increases the costs for connecting works to meaningful audiences. And the plethora of delivery options afforded by digital technologies vastly increases the marketing and promotional costs for launching new work into the public domain. New media theorist Clay Shirky points out the need to be aware of the dynamic balance of the pleasures and pains of digital technologies when he said, “So the web can paradoxically enhance our ability to communicate and further isolate us. The real danger, it seems to me, is in believing that it can only do one or the other.”

The blessing and the curse of digital technology is that the digital aspect makes everything connect with everything. Boundaries blur — and producers, consumers and others in the broader media terrain need to track more than the intrinsic properties of one particular new platform or technology. This is especially true of a DVD culture that overlaps with many other concerns. The independent media field has a reputation for maintaining a mission-based focus, even while balancing technical needs, creative fundraising efforts, and finding elusive audiences. This shared sense of mission and community will be crucial aids when navigating the delirium of data, information, knowledge, and wisdom that accompanies the onset of multiple media delivery systems.

Neil Sieling is a New York-based consultant for strategic partnerships and new digital media delivery for Link TV and The Interra Project.