By-Seble G. Baraki
Balancing in an Internet era: the Creative Commons way
In today’s day and age, thanks to the Internet, copyrightable works are easily accessible. With just a click of a button, we can access wide variety of works from anywhere in the world. Of course there are barriers to access imposed by laws, owners or depending on where you come from even by infrastructure such technology induced ones. Restrictions imposed by law are usually backed by copyright and related rights regulations in force in the particular jurisdiction. However, here, I want to highlight online sharing and accessing of copyrightable works by users and the role of Creative Commons (“CC”) suit of licenses in mitigating the challenges faced. In the interest of space and time, I will only be focusing on copyright. Related rights will be discussed in future discourses. Whether through the fastest connection there is or through the slowest dial-up connection (assuming that this still exists, at least in Ethiopia), users have the means to access works shared online. Unless permission is given from the outset, accessing these works can often times create copyright issues. Sharing a picture found on social media outlets such as Facebook or Twitter can be a potential infringement as this is one way of distributing the work, a right exclusively reserved for the copyright owner.
Copyright and its Exploitation
Copyright is bundle of exclusive rights granted to owners of works in literary, artistic and scientific fields. Subject matters (a.k.a works) covered by copyright include books, music, speeches, paintings, sculpture, films, computer programs, drawings, databases, compositions, choreography, advertisements, maps, technical drawings etc. The law protects any expression of idea(s) in these fields. There is no limitation as to which expressions can be protected. In other words, as long as the work fulfills the requirements stipulated by a particular copyright law and is not considered un-copyrightable or falls under the exceptions and limitations clause of a given law, the owner will enjoy copyright no matter how small and insignificant the creation might seem to others. It is important to note that copyright law does not give emphasis to the quality or significance of the work in question. In most jurisdictions, including Ethiopia, the substantive preconditions for protection are originality and fixation. It’s also important to note that under most copyright laws, protection arises automatically upon creation and the fixation of such on physical form. Registration are however, given as an option to owners. For instance, in Ethiopia, voluntary registration of copyrightable works has commenced a little over a year ago. This is with the intent to provide an owner ”prima facie” evidence as to her ownership. This is could of course be rebutted in court when not accurate.
Most copyright laws provide standard stack of economic and moral rights to owners. Where her work is eligible for protection; an owner has rights to use, authorize others via different modes and/or prohibit or exclude others over her creations. The economic rights granted include; reproduction, publication, public performance, public display of the work adaptation rights. However, the “monopoly” granted by this law is limited only to expressions and does not extend to the underlying idea being conveyed. Likewise, in Ethiopia, Copyright and Neighboring Rights Protection Proclamation No.410/2004 (“Proclamation No.410/2014”) provides for list of these two categories of rights (see article 7). Initially, ownership of these rights rests with the author, i.e. the one who created/originated the work. However, ownership of economic rights might be transferred to another person. Ownership of economic rights entails exploitation of the work in the market. These rights can be carried out by the owner and/or licensed or assigned to another. In Ethiopia this is done pursuant to stipulations of article 23-25 of Proclamation No. 410/2004. Accordingly, the owner can license one or more of her economic rights in whole or in part to as many persons as possible. If the license is give solely to one person only, it will be an exclusive license and cannot be licensed by the owner to another. Where the license is non-exclusive, the licensor could grant permission to more than one person. This can be done for consideration or gratis. On the same note, the author can transfer the whole of her economic rights and retain only of her moral rights. Again, for consideration or gratis. The second category or rights, moral rights, on the other hand focus on the noneconomic interest an author has over her work. They include: the right to be recognized as the author, the right to oppose any mutilation or distortion, the right to publish the work and the right to remain anonymous or use a pseudonym (see article 8). Unlike their economic counterparts, moral rights are not transferrable during the lifetime of the author. They can only be transferred to her heirs afterwards.
So what happens when you encroach on one of these exclusive rights reserved for an owner? Simply, you commit an infringement. Infringement is any act committed on the work outside the limitations and exceptions and done so without acquiring prior permission form the author/owner. There are remedies available for the owner in this regard. In the Ethiopian case; there are provisional, civil, criminal and boarder (administrative) measures available to the owner (for more detail see articles 33-36 of Proclamation No. 410/2004 as amended). Despite these stipulations, are a number of Facebook pages and websites, operated by Ethiopians or for Ethiopians, which allow their followers or any person on Facebook or with an Internet access to listen to or watch copyrighted music and films or other audiovisual works for free. The copyright notice on these pages is very simple and more or less reads as, “If you think there is a copyright infringement, please contact us” (see here, here & here). I also see designers, companies and individuals, download and use images shared online for different purposes, including for commercial use such as advertising their respective companies or works. There seems to be a general misunderstanding that whatever is shared online is free or open for use. Unless there is clear permission from owner(s), these acts constitute copyright infringements and could potentially lead to lawsuits. Incorporating a notice as mentioned above might not save one from the “wrath” of the law, if and when invoked. In an ideal world where copyright is well protected and enforced, acquiring permission from the owner will come first to sharing the work on a website or social media outlets.
The law’s inherent balancing nature
Essentially, copyright law serves two functions. First, it gives an owner limited monopoly in the process of benefiting from her creations. It allows her to recover (in monetary terms) the energy, time, creative ingenuity and/ or money spent in the creation of the original work. This is achieved by giving her the above-mentioned exclusive rights for a limited period of time. Usually the term of protection is life of the author plus 50 or 70 years depending on the Jurisdiction in question. In Ethiopia, for instance, the duration of copyright for most original works is life of the original author plus the subsequent 50 years. By granting this monopoly for a specific period of time, copyright law aims to encourage creativity and promote progress and learning in a given jurisdiction. Second, by incorporating exceptions and limitations to what can be protected or to what extent users are allowed to access protected works without the permission of the author, the law attempts to serve the public interest (refer to here & here to get basic understanding of these limitations in the Ethiopian context).
Generally copyright law attempts to balance these two interests, the author/owner’s and that of the public’s. However, the balance has been tilting in one direction for decades. This is due to the advocacy works done by authors groups, developed country governments and international organizations. The aim of this advocacy work is to maximize copyright. Because the public interest issue rarely generates economic motive, it is less likely to be the center of attention. However, in the past two decades a number of initiatives have been working on balancing the interests again. Stringent copyright laws affect every inch of ones life and one might commit infringement, knowingly or not, on a daily basis. Unless one is a Mormon, creative works form part of our lives. Hence, maintain the inherent balance of the law is of essence.
The Creative Commons Way
Creative Commons is a not for profit organization working on fixing the problems of copyright law exhibited in the digital era. It realizes its goals by using affiliates networks in over 70 jurisdictions through out the world. A team in Ethiopia commenced its voluntary work in 2014. The CC movement is based on the belief that “societies grow, cultures develop, and innovation exists through sharing”. Use of CC licenses allows creators and/or copyright-holders share their materials more freely, while still retaining some of the rights granted by laws. It advocates for “some rights reserved” rather than “all rights reserved”. In light of this, by applying one of the CC licenses to her work, an owner can allow users to perform one or more of several possible uses on a permission-free basis. Using the licenses by copyright owner entails the provision of permission to future uses. In other words, by giving the permission beforehand, she can allow uses such as copying and re-distribution of the work (provided the rights-holder is attributed); and adaptation of the work (provided the rights-holder is attributed). CC licenses also allow the licensor to specify whether the work can be used for commercial gain and whether derivation works are permitted. If so, whether or not adapted versions of the work must be distributed on a “share alike” basis (i.e., under the same CC license). These preset conditions, which can be inferred from icons used to designate each CC licenses, allow one to identify to what extent a work found online can be used freely.
In 2014, there were 882 million online works carrying one of the six CC licenses. The number of works shared via CC has reached 1 billion in 2015. To date, various organizations from content platforms (Wikimedia or Europeana collections) to governments (White House) are utilizing CC. Hence, CC and its six suite of licenses are gradually becoming the global standard for sharing legally. In general, the CC licenses take a flexible approach to copyright and allow users to, among other things, engage in permission-free copying and re-distribution of the works. CC licenses also allow creators to contribute to the growth of the Commons. The Commons is the place online or offline where anyone can access, use, share and/or remix. The licenses give a new dynamics to the traditional role copyright has been playing. It’s essential to understand that, CC licenses work under the umbrella of copyright laws of a given jurisdiction and are not an alternative to the law itself. The suit of licenses are envisioned to make access to information and/or knowledge manageable online.
CC licenses in Ethiopia
As stated above, economic rights granted by Proclamation No. 410/2004 can be exploited directly by the owner and/or licensed or transferred to another. According to its article 23(2), any licensing of a work by a copyright-holder “shall be made in writing”. How the relevant court in Ethiopia interprets the requirement of “in writing” – a requirement typically associated with signed documents – is a point to consider in relation to CC licensing in the country, i.e., a question arises: would the modalities of online CC licensing, which consist of applying the license through use of an online notice and not via a signed document, suffice in the Ethiopian context? In my opinion, this question can be answered in the affirmative, i.e., it can be presumed that CC licenses fulfill the requirement of enforceability under Proclamation No. 410/2004, as long as both parties are informed and are aware of the terms and conditions. Due to the increased number of electronic interactions and transactions the courts have begun to transition to the digital age and are prudent enough to consider such transactions legitimate. As can be seen in the legal code of the CC licenses, the terms and conditions are clearly incorporated. But it is not possible to make a firm determination on this unless the competent judiciary gives its interpretation on the matter. Also, CC licenses do not specify duration (in terms of years), and thus, some might argue that the effect of article 24(3) is that the maximum duration of a CC license in Ethiopia would be five years. However, if one takes the CC BY (Attribution) license as an example, the license states that it “applies for the term of the Copyright and Similar Rights licensed here”. Thus, it can be presumed that rights assigned by a CC license would be valid for the full duration of the economic rights as specified under article 20 of proclamation No 410/2004.
Its very important to note that the aim of CC is not to deny an owner of her copyright or diminish the role copyright has played in promoting and encouraging progress in these fields. In one of his Ted talks, Lawrence Lessig, one of the founders of CC, spoke about the need to fairly compensate owners and spoke against outdated and insensitive copyright laws that choke creativity. As stated above, the core value of CC is making digital sharing and accessing of information and knowledge easy. We live in a globalized and digital world where information is mostly a click of a button away. In this kind of environment, hoarding creativity will benefit neither the author nor the society. As can be imagined, not every copyrightable work is commercializable. Managing one’s works according to their potential is of essence. An owner could retain copyright for those of works she thinks are core to her business or career or on those which will have real value soon and share those that are more benefiting when shared than put behind a pay wall or under the umbrella of “all rights reserved”. By doing this, an owner promotes herself in her field. At the same time, she helps promote learning and creativity by contributing to the commons. At the end of the day, she is a creator as well as consumer of creative works. Because of this, CC can be considered a socially sustainable business model. When used, it can allow an owner to; promote herself, contribute to the commons, and help develop & advance creativity.
Finally, I believe, we are not feeling the potency of copyright law for two particular reasons: a) Ethiopia is not party to any “serious” international agreement on copyright and b) copyright owners in Ethiopia are not exploiting their statutory rights to the fullest. Author/owners in Ethiopia seldom utilize civil remedies incorporated by law but are usually found clamoring to government bodies and focused on the criminal aspect of infringement. Due to these, we have not fully seen or experienced how aggressive and dedicated lawyers (both foreign and local) could be when the need arises. Once Ethiopia becomes a member of international agreements on copyright, lawsuits and restrictions will undoubtedly increase (this is good for those of us who have set career paths in IP consultancy and at the same time bad for us because our ability to access creative works will unquestionably be limited unless at the same time our financial ability increased). Then and only then can we actually feel the pain of barriers to access, uTorrent might not be there forever. In the near future when access is restricted, how many of us are willing or able to pay for each and every work we consume? I say very few. Due to that, we have to build a strong case for the need to never put the public interest aside. We also have to focus on rebuilding a culture based on sharing & collaboration. To achieve this, we need activists who work on this. We need a society that realizes the importance of balance in copyright law. We need legislatures who will not be influenced by international organizations, developed countries or authors groups. We need enforcing bodies that consider both interests equally.