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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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It was really great that the CD came out, but we thought we really want people to start interacting with the CD – they have the rights to do it – let us find a way to get people excited about remixing this stuff. We have just launched a contest called ‘The Fine Art of Sampling Contest’ which you can find at CC Mixter (http://ccmixter.org/). If any of you are interested in music mixing or not interested in music mixing you should try it anyway and enter the contest. Basically you download the songs, throw them into a music editing software, mix them up and then upload them back into the system. There are two different categories. In one category the winner will be in the next Chuck D Fine Arts Militia album. In the other category, we will be releasing the CD with Wired CD with the best remixes and just promote it as much as we can.

This is a good segue into talking about Mixter, the new content management system, another software project we have been working on. It is like Fenster and Orchid, which are social networking software programs which show how people are connected to each. Mixter Software is a content management system that basically does the same thing; however, it also shows how content is related to other content. For example, if I am on someone’s homepage and he or she likes, for example, Sound Forge, I can click on a link and see who else likes Sound Forge. This is exactly how Fenster and Orchid work. The more significant feature about Mixter is you can see how music is related to other music. You can listen to samples and you can visit other homepages as well. You can see how this content is related to other content and how people are remixing each other’s stuff.

This is one of the most exciting things about Creative Commons, the whole concept of remixes, that Professor Lessig talked about. But we thought why not facilitate this, why not make this explicit in these kinds of communities, so people can really see how content is built and changed when different people interact with it.

We will be releasing this content management system under an Open Source GPL Licence, and anybody can start their own Mixter communities – blues guitar mixter, video mixter, mystery mixter, education mixter – which I think is one of the most compelling cases for it. With this particular case of Mixter we are going to start a web-stream, like a remix radiostream. You can imagine you are listening to a stream of radio, you like a song, you click on, you download it, remix it and put it back into the queue.

These are some of the technology projects we are working on. There are a

few more in the areas of:

• Business development

• Community development

• Content recruitment Here are some examples of projects using Creative Commons licences.

The Corporation I do not know if any of you have or heard of The Corporation. It is a documentary film that came out of Canada. About 75 percent of their B rolls came from the Prelinger Archives which is hosted on the Internet Archive, it is all public domain footage. There is a very compelling case for a pretty astounding film that made a significant use out of public domain material. It was all free.

Magnatune Thinking a little about some of the commercial value of Creative Commons – what Magnatune (music label) does, is to release MP3 files for free under Creative Commons licences. They make their money by selling wave files and by licensing the music to videogame producers and for commercials. If you are a non-profit filmmaker, you can use it under the Creative Commons licence.

They have a very innovative way of price-discriminating between different uses, and they use Creative Commons as one piece of that.

Public Library of Science This is an Open Access journal that recently started in the San Francisco bay area. It has received a lot of attention. All their publications are under the Creative Commons Attribution Licence.

MIT OpenCourseware Repository This is an open repository full of lesson plans, all under Creative Commons licences. They put all these lessons up and people from Vietnam and Spain and from all over the world are downloading these lesson plans, translating them and using them in their classes, all without any kind of transaction cost.

ACRO Repository Australian Creative Resources Online (ACRO) is the concept of a digital junkyard where some of the footage you take is valuable and you use it, but then 90 percent of it you throw away. This is placed in the repository and people can use it for different things. I was in discussions with Phil Graham for about a year about this. I was glad to hear that it is coming along.

Youth Media Projects Another very compelling case for Creative Commons, where young people want to make news and share content with each other, they can rip stuff off each other, edit it and make new stories in this collaborative way. We talk a lot to different organisations about integrating the licences into their systems. On a popular music community – garageband.com – you can upload your song and as you are uploading your song, you can choose a Creative Commons licence.

Morpheus Another project we have been working on is with Morpheus in the peer-to-peer (P2P) basin. A lot of this is with embedding licence information into MP3s, which the ccPublisher and a few other applications do for you. What you can do is to embed your Creative Commons licence into the MP3 and then if you are on Morpheus and are searching for CC sampling it will show you a group of tracks that are under various Creative Commons licences and then you can download them. This is a very good tool to find non-infringing content on the P2P networks.

Flickr Flickr image site is another positive Creative Commons project which already has over half a million images under the licences.

Sound Click Sound Click music community has about 90,000 songs under Creative Commons licences.

That brings us to the question of how we curate this. We think there is an opportunity there for anybody who wants to go through the Creative Commons pool and find the good stuff and pull the good stuff out.

iCommons is really about the community-building phase, about how to go out in partner with institutions, broadcasting services and artists’ associations to get people thinking about Creative Commons and interested in adopting the licences.

We have also been working on some legal innovations, such as: the Developing Nations Licence; the Sampling Licence; the CC GPL which is not a licence, but it is wrapping our metadata and commons deed model around the GPL; the shared music licence; and the Science Commons, which Professor Lessig also mentioned.

Here are a few statistics to give you a sense of how we have been doing. As I mentioned before, we launched the original suite of licences in December

2002. At the current point in time, around 5 million webpages link back to our licences, and according to Yahoo’s index, one out of 1200 pages has a CC licence on it. This is pretty astounding considering the size of the Web.

Our growth rate has been positive – around a 47-50 percent quarterly growth rate in terms of traffic. If you Google a search under Creative Commons there is a huge spike in the last couple of months – a very high growth rate.

I mentioned a little about the different attributes and we have also been able to see what people are choosing. Before, when you could choose Attribution, which you can no longer do, 97 percent of people chose to require attribution. In the case of Derivative Works about 67 percent of the people chose to allow people to make Derivative uses of their work. About 67 percent also, disallowed commercial use – some interesting statistics about how people think about their content. Most people are very happy that people take their work and do different things with it. They don’t want them to make money off it and they want credit for it.

To close, we also ran a moving-image contest last year where we asked people to make a video that explained our mission better than we could.

We received a lot of different entries and the best one made use of public domain footage. He took a lot of public domain footage, he took Creative Commons licensed music and he mixed it up.


My presentation is decidedly low-tech. In fact it is the most mundane of the presentations here. What I am going to cover is a bit of the background on the iCommons Australia team in terms of where we came from, how we got our act together and how we got to this point, and some of the developments that we will be looking to develop in the near future.

I will preface it by saying that a lot of my material is in an article that Brian Fitzgerald, Tom Cochrane, myself and Vicki Tsamitas drafted for the book International Commons in the Digital Age. 35 The book is put together by our good colleagues at iCommons in France and collates together an excellent collection of materials from Germany, Netherlands, Taiwan, Sweden, Finland and Australia regarding the International Commons project. It is of course licensed under a CC Licence, and you can download it all off the Internet.

The process of iCommons coming together is in a sense crystallised in this book. But, in relation to the Australian aspect, I have to say that my personal involvement in iCommons really crystallised at a symposium of copyright lawyers in November 2001 when I met Brian and Tom. We were talking about Creative Commons and realised that no one to our knowledge was doing anything about implementing this into Australia. It took a while to get our act together, but in the course of doing so we developed a team of interested people, primarily lawyers from around Australia, from Brisbane, Sydney and even some expatriates over in the US. We started by looking at the US generic licence forms and following through the principles of the porting process. There were two kinds of considerations that we had to bear in mind. First, in the porting process, it was very important for us not to lose sight of the overall objective of providing and implementing a coherent, consistent international licensing regime for the Creative Commons licences, so that the same licensing elements (and the same things that we thought we were licensing in Australia) would be licensed in the same way anywhere else in the world. Of course, our US colleagues would say the objective was the other way around. Our perspective was that if you are an Australian licensor and you are using Australian licences you should have the same certainty around the world as you would in Australia, and the same effect.

Secondly, we also needed to ensure that particular aspects of Australian law that might not be present in the US or other jurisdictions were properly reflected so that you did get that same effect in general in those other jurisdictions. Even if the letter of the licence was not exactly the same, you would have the same effect, and you would not necessarily need a lawyer to interpret the licence to tell you that it had the same effect. You could simply look up the human readable code for that licence and be pretty certain that the same effect was carried out.

International Commons at the Digital Age, ed Danièle Bourcier and Mélanie Dulong de Rosnay (2004) Rommilat, 33 http://fr.creativecommons.org/iCommonsAtTheDigitalAge.pdf at 1 February 2007 Arising from that, there were a couple of drafting things that we went through – three or four different things that were unique to Australia that we had to take into account. Sometimes the Australian law made itself into the drafting. At other times, we took the Australian law into account but said ‘no, we do not need to do anything with the licence, but we may need to follow this up’. One of those things was GST (Goods and Sales Tax) law, which has a very broad statutory definition of what is a supply and what the tax might possibly apply to. We had to consider whether we had deal with this in the licences. At the end of the day, we decided we do not have to deal with this in the licence, but what we will do as a follow-up activity is to provide some commentary to ensure that people who are using Creative Commons licences do not inadvertently fall into a situation where they will be subject to an Australian law regarding a particular tax that they did not realise would be imposed in that situation.

Another category of things we considered was liability provisions. The generic Creative Commons licences have a provision, drafted based on US law, that says ‘OK, no responsibility is taken, these materials are provided as is’ and if you want any more assurance, you need to obtain that assurance outside the licence. To make that effective in Australian law, we have to accommodate particular laws such as the Trade Practices Act, which make it very difficult to have a disclaimer of liability in certain kinds of transactions unless it is in a particular form. We drafted some wording in there, some legalese to deal with that. Consequently the net effect is the same as under US law, but the wording is slightly different because it accommodates Australian legal peculiarities.

There are two other areas which are a little bit more interesting. One of them is to do with commercial royalties in Australia, particularly as those royalties are collected by collecting societies. The second issue is moral rights. We have in Australia a statutory regime that is comprehensive regarding the moral rights of creators and authors and it has implications for the licences which we had to decide how to deal with.

Dealing with the commercial royalties issue, the generic form of the licence reserves to the licensor the exclusive right to collect royalties for any public performance of the licensed work or any cover version that may be created from that licensed work, if the performance or subsequent distribution of a cover version is intended for commercial purposes, effectively commercial advantage or monetary compensation.

There are a couple of things about the Australian environment that, we noted, make it a little bit different to the US. The first is, in relation to musical works and music that is going to be performed and communicated, that under Australian law, the performance rights collecting society (that is Australasian Performing Right Association (APRA)) cannot legally collect royalties for the exercise of the performance right of musical works – to perform a music work – unless APRA has first been assigned the rights.

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