By: Ashley Rovner<\/p>\n
<\/u>Copyright infringement in the digital age has become increasingly difficult to police and avoid. Artists, songwriters, musicians, architects, and other groups of people that own copyrights in the United States and around the world face a world of infinitesimal payments for music based on digital streams. Copyright owners are also struggling to actually create and protect something new, such as computer software, that the law is slow to protect under current copyright laws. The U.S. Copyright Act is expanding the list of works that can be granted copyright protection, including anonymous works, audiovisual works, computer programs, architectural works, musical works, and more.[1]<\/a> However, as one law review article author states, U.S. Copyright Law is paradoxical in nature: U.S. policy is intended to facilitate creativity, growth, and the progress of the arts. But at the same time, the law seeks to limit the use of these creative works by other creators.[2]<\/a> Lawmakers must now ask whether there is a better formation of copyright law that both protects and promotes creativity without stifling creativity at the same time.[3]<\/a> One solution to this issue is the aim of a new licensing structure that can be used together with copyright protection.[4]<\/a> That solution is licensing schemes created by the non-profit organization, Creative Commons.[5]<\/a><\/p>\n Creative Commons (CC) describes itself as helping people \u201clegally share [their] knowledge and creativity to build a more equitable, accessible, and innovative world\u2013 unlocking the full potential for the internet and drive a new era of development, growth and productivity.\u201d[6]<\/a> Founded in 2001, CC describes its purpose as creating a \u201cglobal nonprofit organization that enables sharing and reuse of creativity and knowledge through the provision of free legal tools.\u201d[7]<\/a> In order to facilitate this creativity, CC has created a solution that combines copyright protections and the public domain.[8]<\/a> CC\u2019s system allows the copyright creator to retain his or her copyright while also giving some of his or her rights to the public in order to promote his or her work in place of getting payments.[9]<\/a> Something to keep in mind is that the CC licensing scheme is not a replacement or substitute for copyright; the CC license holder must still have a valid copyright in order to use the supplementary protections enabled by the CC license.[10]<\/a> However, instead of the \u201call rights reserved\u201d system under traditional copyright laws, the CC approach has become a \u201csome rights reserved\u201d system that allows the copyright owner to choose which rights are most important to protect, and giving up the less important rights to the public in order to promote their work.[11]<\/a>.<\/p>\n In order for the CC licensing scheme to work, CC offers several copyright licenses to copyright owners for free.[12]<\/a> These licenses, used by Wikipedia and Flickr for example, replace individual negotiations for rights between the owners and the licensee of those rights.[13]<\/a> As of January 2016, there are over 1.1 billion works licensed under one of the CC schemes.[14]<\/a> CC has stepped in as an intermediary in the midst of rapidly changing copyright laws, clearly evidenced by the vast numbers of individuals, entities, and companies have used the CC licensing structure.[15]<\/a> Given the \u201ccopyright explosion\u201d that has disrupted industries and laid new ways of thinking for copyrights in the digital world, there has grown \u201ca number of understandings\u201d that surround digital technologies, and \u201cthese understanding have led to norms and implied licenses that serve important coordinating functions.\u201d[16]<\/a> However, even with those forms of informal licenses, copyright owners still crave clearer, more organized ways of handling copyrights in the digital era in order to be able to protect their works.[17]<\/a> That clarity and organization ultimately led to the creation of the CC license structure.[18]<\/a><\/p>\n The licensing structure granted by CC allows copyright owners to choose between several different types of licenses.[19]<\/a> CC licenses grant basic copyright protection, including distribution without change for non-commercial use.[20]<\/a> The copyright owner can choose which license fits their needs, including choosing which rights to keep and which to grant to the public.[21]<\/a> CC uses four different criteria to describe its licenses, including 1) attribution, 2) share-alike, 3) non-commercial, and 4) no derivative works.[22]<\/a> Each of the four licensing criteria are represented by a code and an icon, listed below:<\/p>\n Attribution<\/strong>: Code = BY, Icon=<\/p>\n Share-Alike<\/strong>: Code=SA, Icon=<\/p>\n Non-Commercial<\/strong>: Code=NC, Icon=<\/p>\n No Derivative Works<\/strong>: Code= ND, Icon= [23]<\/a><\/p>\n \u201cAttribution\u201d gives the licensee(s) the rights to copy, distribute, display, perform, and make derivative works based on the original work if they give the author appropriate credit.[24]<\/a> \u201cShare-alike\u201d grant the licensee(s) the rights to distribute derivative works only under an identical license to that of the original work, so that is not more restrictive than the original work\u2019s license.[25]<\/a> Without the share-alike protection, derivative works could be licensed out to other parties with less restrictive licensing clauses.[26]<\/a> \u201cNon-commercial\u201d licenses grant the licensee(s) the rights to copy, distribute, display, perform, and make derivative works based on the original, but only for non-commercial uses.[27]<\/a> The non-commercial license has created interesting legal implications for copyright owners, specifically in trying to control sublicenses that may stem from the non-commercial CC license and actually defining what \u201cnon-commercial\u201d means in the world of copyright.[28]<\/a> Finally, \u201cno derivative works\u201d enable the licensee(s) to copy, distribute, display, and perform only verbatim copies of the work.[29]<\/a> Derivative works and remixes are not permitted under this licensing scheme.[30]<\/a><\/p>\n Using the language of the four criteria to determine licenses granted by CC, there are six main licenses that CC offers to copyright owners.[31]<\/a> The first is the least restrictive license under the \u201cattribution\u201d category, allowing the copyright holder to grant others the rights to distribute, remix, and create commercial or noncommercial derivative works from the original works and in return, the artist asks for attribution in the new works created.[32]<\/a> Second, under \u201cattribution and share-alike\u201d categories, an artist can allow others to distribute, remix, and create non-commercial and commercial derivative works of the original, and in return, the artist asks for both attribution in the new works and that the licensee give the artist a license to use the derivative works under the same terms as the original license.[33]<\/a> Therefore, derivative works under this license have to allow for commercial uses.[34]<\/a> Third, under an \u201cattribution with no derivatives\u201d CC license, the author can allow others to redistribute the original works commercially or non-commercially if the artist gets attribution. But, the artist in this license does not grant others the right to remix or change the original work in order to create derivative works.[35]<\/a><\/p>\n Fourth, under an \u201cattribution and non-commercial use\u201d, an artist allows other to distribute, remix, and create non-commercial derivative works of the original, and the artist asks for attribution in derivative or other distributed works based on the original.[36]<\/a> Also, non-commercial derivative works do not need to be licensed under the same license as the original work, unlike the attribution with no derivative license.[37]<\/a> Fifth, under a \u201cnon-commercial attribution and share-alike\u201d license, the artist grants the licensee(s) the rights to distribute, remix, and create non-commercial derivate works from the original work.[38]<\/a> In return, the artists ask for attribution, that derivative works be licensed under the same scheme as the original work, and that derivative works will be non-commercial.[39]<\/a> Finally, the sixth license involves \u201cnon-commercial attribution and no derivatives\u201d, where the artist may grant others the rights to download or redistribute the original work, but does not allow any commercial uses or any changes to the original work that result in derivative works.[40]<\/a> In return, the artist only asks for attribution in the original work.[41]<\/a> The creation of all of these licenses demonstrates how artists can pick and choose the rights that they wish to keep for themselves as the copyright owner, while simultaneously allowing other people to exploit other copyrights in the original work, so long as the original artist gets credit for that original work.[42]<\/a><\/p>\n Even though the CC licensing system is highly innovative and beneficial to copyright owners, such as rising artists seeking to protect their works and gain exposure at the same time, the system is still heavily criticized.[43]<\/a> The CC licensing structure has no enforcement policies or mechanisms and some critics say that the new licensing structure does not actually solve any problems with the current, rigid copyright legal structure.[44]<\/a> One of the most potent criticisms of the structure is whether or not a copyright holder could even recover damages under copyright law for injuries suffered as a result of a failed CC license.[45]<\/a> Technically, the copyright owner has to show that another person infringed on their copyright, but allowing others to use some of the rights granted under the Copyright Act within one of the CC licenses means that the owner willfully allowed others to exploit those rights.[46]<\/a> Since the artist would have granted to the public certain rights in exchange for promoting their works, it would be virtually impossible to legally prove copyright infringement.[47]<\/a><\/p>\n In addition, many online music distribution companies, like CD Baby, DistroKid, OneRPM, TuneCore, and others, either reject or reluctantly host CC licensed audio.[48]<\/a> One artist\u2019s account of the trouble he faced with online distributors stemmed from his attempts to release his material on YouTube to gain exposure over income, since payouts for YouTube streams are so small.[49]<\/a> Jeremy Wray found the CC licensing scheme helpful in gaining exposure and so he opted for putting his music on the Free Music Archive (FMA), which is an online forum for sharing CC licensed audio. Once his music had gotten good exposure, Wray moved to try and monetize his audio on online distribution databases, but most of them said they would reject the audio because it had been licensed under Creative Commons.[50]<\/a> However, Wray did note that even though these distribution companies said<\/em> they would not accept CC audio, which did not mean that they would not actually<\/em> accept the audio because it would be too difficult for these companies to actually turn away content that makes their businesses run.[51]<\/a><\/p>\n Even though Wray is unsure as to why these \u201cdistros\u201d are not keen on accepting CC audio, he suspects that these companies are still tied to the current \u201call rights reserved\u201d copyright system.[52]<\/a> As such, they are not ready to accept CC licensed audio that has been parceled out between the original owner and other people allowed to exploit certain parts of the copyright, but not others.[53]<\/a> Wray here concludes that, \u201cthe people that hold the keys to the distribution of content- YouTube (i.e. Google) etc.- need to give the creators of that content the tools to be able to get their share of revenue from in a fair and transparent way.\u201d[54]<\/a><\/p>\n CC licensed material may be causing significant upheaval in the traditional copyright regime, but one key conclusion remains: the digital world is changing and current laws do not adequately represent and protect the rights of copyright holders.[55]<\/a> As Jeremy Wray states, distribution companies and other companies that are at the forefront of the digital world need to be more open to accepting CC material.[56]<\/a> Once they do, there is less chance of conflict and the copyright system can be reformed to better protect the people who matter most to copyright law: the authors.[57]<\/a> CC allows the authors freedom and success in ways the current system does not adequately give.[58]<\/a> If there is a large enough group of people who accept the system offered by CC, the key is to exploit the CC method, enhance it, and better enforce it so that copyright law can offer truly protective means for authors to fully utilize the fruits of their creative labors.[59]<\/a><\/p>\n [1]<\/a> 17 U.S.C. \u00a7 106 (1976).<\/p>\n [2]<\/a> Ashley West, The Enforcement of Creative Commons Attribution and Share-Alike Licenses<\/em>, 26 Fla. St. U. L. Rev. 903, 903 (2009) (describing the solution to copyright protection presented by Creative Commons).<\/p>\n [3]<\/a> Id.<\/em><\/p>\n [4]<\/a> Id.<\/em><\/p>\n [5]<\/a> Id.<\/em><\/p>\n [6]<\/a> Creative Commons, https:\/\/creativecommons.org\/about\/<\/a> (last visited Oct. 5, 2016).<\/p>\n [7]<\/a> Peter L. Skolnik, Navigating Social Media Copyright<\/em>s, 284 N.J. Law. 5, 7 (Oct. 2013) (describing the purpose of Creative Commons).<\/p>\n [8]<\/a> West, supra <\/em>note 2, at 904.<\/p>\n [9]<\/a> Id.<\/em><\/p>\n [10]<\/a> Id.<\/em> at 907.<\/p>\n [11]<\/a> Id.<\/em><\/p>\n [12]<\/a> Wikipedia, Creative Commons<\/em>, https:\/\/en.wikipedia.org\/wiki\/Creative_Commons<\/a> (last visited Oct. 6, 2016).<\/p>\n [13]<\/a> Id.<\/em><\/p>\n [14]<\/a> Id.<\/em><\/p>\n [15]<\/a> Michael W. Carroll, Creative Commons and the New Intermediaries<\/em>, 2006 Mich. St. L. Rev. 45, 46 (describing the rise of Creative Commons).<\/p>\n [16]<\/a> Id.<\/em><\/p>\n [17]<\/a> Id.<\/em><\/p>\n [18]<\/a> Id.<\/em><\/p>\n [19]<\/a> Wikipedia, Creative Commons License<\/em>, https:\/\/en.wikipedia.org\/wiki\/Creative_Commons_license<\/a> (last visited Oct. 6, 2016).<\/p>\n [20]<\/a> Id.<\/em><\/p>\n [21]<\/a> West, supra<\/em> note 2, at 907-08.<\/p>\n [22]<\/a> License<\/em>, supra<\/em> note 19.<\/p>\n [23]<\/a> Id.<\/em><\/p>\n [24]<\/a> Id.<\/em><\/p>\n [25]<\/a> Id.<\/em><\/p>\n [26]<\/a> Id.<\/em><\/p>\n [27]<\/a> Id.<\/em><\/p>\n [28]<\/a> See<\/em> David Kravets, Creative<\/em> Commons licenses under scrutiny: What does \u201cnoncommercial\u201d mean?<\/em>, ArsTechnica UK (Sept. 19, 2016), http:\/\/arstechnica.co.uk\/tech-policy\/2016\/09\/creative-commons-licences-nocommercial\/<\/a>.<\/p>\n [29]<\/a> License<\/em>, supra<\/em> note 19.<\/p>\n [30]<\/a> Id.<\/em><\/p>\n [31]<\/a> West, supra<\/em> note 2, at 908.<\/p>\n [32]<\/a> Id.<\/em><\/p>\n [33]<\/a> Id.<\/em><\/p>\n [34]<\/a> Id.<\/em><\/p>\n [35]<\/a> Id.<\/em><\/p>\n [36]<\/a> Id.<\/em><\/p>\n [37]<\/a> Id.<\/em><\/p>\n [38]<\/a> Id.<\/em> at 909.<\/p>\n [39]<\/a> Id.<\/em><\/p>\n [40]<\/a> Id.<\/em><\/p>\n [41]<\/a> Id.<\/em><\/p>\n [42]<\/a> Id.<\/em><\/p>\n [43]<\/a> Id.<\/em> at 905.<\/p>\n [44]<\/a> Id.<\/em><\/p>\n [45]<\/a> Id.<\/em><\/p>\n [46]<\/a> Id.<\/em><\/p>\n [47]<\/a> Id.<\/em><\/p>\n [48]<\/a> Jeremy Wray, The Distros Don\u2019t Want Your Creative Commons Music* (*maybe),<\/em> Jelsonic_royalty free music (Sept. 2016), http:\/\/jelsonic.com\/royalty-free\/the-distros-dont-want-your-creative-commons-music\/<\/a>.<\/p>\n [49]<\/a> Id.<\/em><\/p>\n [50]<\/a> Id.<\/em><\/p>\n [51]<\/a> Id.<\/em> (emphasis added).<\/p>\n [52]<\/a> Id.<\/em><\/p>\n [53]<\/a> Id.<\/em><\/p>\n [54]<\/a> Id.<\/em><\/p>\n [55]<\/a> Id.<\/em><\/p>\n [56]<\/a> Id.<\/em><\/p>\n [57]<\/a> Id.<\/em><\/p>\n