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Free Culture un mash-up de LESSIG pour fêter ces 10 ans de Creative Commons

Creative Commons, l’organisation créee en 2001 par le juriste américain Lawrence Lessig pour faciliter la diffusion et le partage des contenus, tout en participant à la réflexion sur les nouvelles pratiques de création à l’heure du numérique, fête ses 10 ans.

Nous profitons de cette occasion et des récentes propositions faites à la Commission Lescure afin d’envisager la légalisation du partage non-marchand pour vous proposer un mashup écrit du livre, aujourd’hui encore, fondamental de Lawrence Lessig « Free Culture : How Big Media uses Technology and the Law to lock down culture and control creativity » (dont vous trouverez un lien légal et téléchargeable ici)

Des photos Flickr, aux articles de Wikipédia, en passant par les contenus éducatif du MIT OpenCourseWare, La liste des acteurs utilisant aujourd’hui ces licences est grande. Comme le souligne Lionel Maurel, « les Creative Commons ont apporté la preuve qu’il était possible de penser le droit d’auteur autrement, sans attendre que les lois soient modifiées ».

Plutôt que d’analyser les utilisations actuelles de ces licences (comme l’utilisation ou non de la clause non-commerciale dans la version 4), nous reviendrons ici à l’étude même de l’origine des Creative Commons en résumant les concepts essentiels du livre de Lessig depuis sa version anglaise.

Introduction

Free Culture :

  • A free culture is not a culture without property, just as a free market is not a market in which everything is free. A culture without property, or in which creators can’t get paid, is anarchy, not freedom. The opposite of a free culture is a “permission culture”a culture in which creators get to create only with the permission of the powerful, or of creators from the past.
  • The law is changing; that change is altering the way our culture gets made; that change should worry you. Free Culture is a book written by Lawrence Lessig, who was then teaching Law at Stanford University and who is now professor at Harvard University. His book is about an effect of the Internet beyond the Internet itself: an effect upon how culture is made, mainly because the Internet has induced an important and unrecognized change in that process.
  • The Question is Not whether creative property should be protected, but how.

Not whether we will enforce the rights the law gives to creative-property owners, but what the particular mix of rights ought to be.

Not whether artists should be paid, but whether institutions designed to assure that artists get paid need also control how culture develops.

Lessig doesn’t say that Property on Creative Works should not exist. He says we need to rethink about the ways we want to regulate these creations, since the internet has introduced a major breakthrough.

Part I-              The Facts : Copyrights ownerships last too long, and are unadapted 

A-   Creative Works have different live cycles

We should differentiate 2 cycles:

-A commercial one

-A non-commercial one. In this second life, the content can continue to inform even if that information is no longer sold.

E.g.: A newspaper delivers the news every day to the doorsteps of America. The very next day, it is used to wrap fish or to fill boxes with fragile gifts or to build an archive of knowledge about our history.

Or it could be sold without any relation with the primary copyrights owners.

E.g. After it is out of print, a book can be sold in used book stores without the copyright owner getting anything.

à It can be stored in libraries, where many get to read the book, also for free. Used book stores and libraries are thus the second life of a book. That second life is extremely important to the spread and stability of culture.

B-    Internet created the possibility of noncommercial publications of public domain works.

Hundreds of thousands from across the world have discovered this platform of expression and now use it to share works that are, by law, free for the taking. This has produced what we might call the “non-commercial publishing industry”. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally.

Digital technologies now make it possible to preserve and give access to all sorts of knowledge. Once a book goes out of print, we can now imagine digitizing it and making it available to everyone, forever.

Once a film goes out of distribution, we could digitize it and make it available to everyone, forever. Digital technologies give new life to copyrighted material after it passes out of its commercial life. It is now possible to preserve and assure universal access to this knowledge and culture, whereas before it was not.

Most books fall out of print after one year. When that happens, the used books are traded free of copyright regulation. Thus the books are no longer effectively controlled by copyright. The only practical commercial use of the books at that time is to sell the books as used books; that use—because it does not involve publication—is effectively free.

The framers established a two-part copyright regime, requiring a copyright owner to renew his copyright after an initial term. The requirement of renewal meant that works that no longer needed copyright protection would pass more quickly into the public domain.

The works remaining under protection would be those that had some continuing commercial value. The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term—the maximum term.

For “natural” authors, that term was life plus fifty years. For corporations, the term was seventy-five years. Then, in 1992, Congress abandoned the renewal requirement for all works created before 1978. All works still under copyright would be accorded the maximum term then available. After the Sonny Bono Act, that term was ninety-five years.

Lessig’s claim is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies.

The consequences we have described here are derived from example of the US. Still Free Culture should be considered as an international issue. Intangible goods are becoming more and more important every day. So even though the intellectual property code aren’t exactly the same (for instance the French one and the American one), the sources of the problem are overall the same, and everyone should be aware of this.

Nota Bene, Lawrence Lessig still follows this fight against absurd copyright terms, but he now focuses his publications on Institutional Corruption since he is convinced that the problem must be tackled upstream. By that he doesn’t mean that the government is corrupted nor that bribery thrives in the country, however he wants to promote transparency and accountability in the way we govern and lead in politics.

II-            Consequences

A-    The danger of concentration of media

The content of any show developed for a network is increasingly owned by the network.

While the number of channels has increased dramatically, the ownership of those channels has narrowed to an ever smaller and smaller few.

(E.g. Norman Lear was about to be fired when he proposed to develop All in the Family, because the show was too edgy).

Given the power of technology to supplement the law’s control, and the power of concentrated markets to weaken the opportunity for dissent, if strictly enforcing the massively expanded “property” rights granted by copyright fundamentally changes the freedom within this culture to cultivate and build upon our past, then we have to ask whether this property should be redefined.

Never in our history have fewer had a legal right to control more of the development of our culture than now. Obviously, copyright law is not the enemy.The enemy is regulation that does no good.

So the question that we should be asking just now is whether extending the regulations of copyright law into each of these domains actually does any good. No doubt that it does well in regulating commercial copying. But no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation.

B-    Consequence

The law adjusts to the technologies of our time. 

E.g.: Property law originally granted property owners the right to control their property from the ground to the heavens. Then airplanes came along. The scope of property rights quickly changed. It made no sense anymore to grant that much control, given the emergence of that new technology.

Remark : If “piracy” means using the creative property of others without their permission—if “if value, then right” is true—then the history of the content industry is a history of piracy.

In 1900’s filmmakers flew from east coast to California to avoid Thomas Edison, Motion Patent Picture Commercialized monopoly (creative property patent’s).

Consequently, we ought to make a distinction between “commercial culture” : that part of our culture that is produced and sold or produced to be sold. “Noncommercial culture” I mean all the rest. Historically essentially unregulated.

This rough divide between the free and the controlled has now been erased.

NB : Understand “free” as “free in speech, meaning “libre” ; ant not as “free in beer” meaning “gratuity”.

For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before.

Corporations threatened by the potential of the Internet to change the way both commercial and noncommercial culture are made and shared have united to induce lawmakers to use the law to protect them.

These modern-day equivalents of the early twentieth-century radio or nineteenth-century railroads (against the appetence of trucks) are using their power to get the law to protect them against this new, more efficient, more vibrant technology for building culture.

To know which side to take, most think that we need only decide whether we’re for property or against it. I, too, am a believer in property, and especially in the importance of what Mr.Valenti nicely calls “creative property.” I believe that “piracy” is wrong, and that the law, properly tuned, should punish “piracy,” whether on or off the Internet.

III-          A Frame for solutions

A-   Creative Commons (CC)

Today, there is no simple way to know who owns what, or with whom one must deal in order to use or build upon the creative work of others.

There are no records, there is no system to trace— there is no simple way to know how to get permissio

Yet given the massive increase in the scope of copyright’s rule, getting permission is a necessary step for any work that builds upon our past.

Consequences :

  1. Thus, the lack of formalities forces many into silence where they otherwise could speak.
  2. Copyright laws restrict access to the past; and restrict access to your work. With CC you control the restrictions you want on your work.

Creative Commons:

The creator can choose a license that permits any use, so long as attribution is given.

Choose a license that permits only noncommercial use.

Choose a license that permits any use so long as the same freedoms are given to other uses (“share and share alike”).

Or any use so long as no derivative use is made. Or any use at all within developing nations. Or any sampling use, so long as full copies are not made.  Or lastly, any educational use.

And most importantly, they express these freedoms in a way that subsequent users can use and rely upon without the need to hire a lawyer.

New Possibilities Offer to Everyone

The aim is not to fight the “All Rights Reserved” sorts. The aim is to complement them.

 Tell the world in what ways their work can be used and fostering collaboration between artists.

 Even collaboration between artist that haven’t met.”

The Internet is in transition. We should not be regulating a technology in transition. We should instead be regulating to minimize the harm to interests affected by this technological change, while enabling, and encouraging, the most efficient technology we can create.

Keep it short: The term should be as long as necessary to give incentives to create, but no longer

Keep it alive: Copyright should have to be renewed. Especially if the maximum term is long, the copyright owner should be required to signal periodically.

Par Adrien Basdevant

NB : A cette occasion, le chapitre français de Creative Commons organise un évenement à la Gaité Lyrique Samedi 15 Décembre de 14h à 20h

 

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