1. CILT 24 November 2004 1 Towards Creative Education: Lessons from the CC-UK experience Prodromos Tsiavos CC-UK Legal Project Lead

2. CILT 24 November 2004 2 Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

3. CILT 24 November 2004 3 Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

4. CILT 24 November 2004 4 Acknowledging the institutional ecology of Copyright Law Copyright Sources: international treaties, regional economic organisations (EU), national laws Licensing Schemes Collecting Societies Major Rights-holders and bottlenecks Mutliplicity of roles and Challenges for the Education Sector Property vs. Intellectual Property

5. CILT 24 November 2004 5 Relevant EU Legislation (I) Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (the Software Directive) Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (the Rental Right Directive) Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights (the Term Directive)

6. CILT 24 November 2004 6 Relevant EU Legislation (II) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (the Database Directive) Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the Satellite and Cable Directive) Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society

7. CILT 24 November 2004 7 Relevant National Legislation (examples): UK: Copyright Act 1988 Germany: Urheberrechtsgesetz von 1965

8. CILT 24 November 2004 8 Tracing the flow of rights Content Creators Disseminators Containers Collectors Entrepreneurs Public Institutions Archives Displays Users Licensing Schemes Compulsory Licensing Employment Contracts Mass Licensing Rights Markets Digital Rights Management Systems Educational Software Access Control Systems Institutional Information Infrastructures Tracing/ Searching Technologies

9. CILT 24 November 2004 9 Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

10. CILT 24 November 2004 10 Creative Commons: making digital content more widely available CC addresses legal problems in the area of global copyright law It is an NGO run by international lawyers and academics It is generously supported by the Center for the Public Domain and various other charitable foundations Its objective is to establish a viable middle ground between stringent copyright controls and the completely unfettered use of content in the digital age

11. CILT 24 November 2004 11 Creative Commons: pursuing a viable middle ground in copyright law providing a set of user-friendly online licenses combined with a sophisticated search technology authors, musicians and other creators of content can use these licenses to protect some of their ownership rights, while giving others away the result is a new global standard or layer of copyright law promoting the dissemination of digital content and the free exchange of ideas

12. CILT 24 November 2004 12 © All rights reserved; stringent copyright laws No rights reserved Some rights reserved Contributing to high- quality digital content online

13. CILT 24 November 2004 13 Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

14. CILT 24 November 2004 14 Three Expressions: Human-Readable: Commons Deed

15. CILT 24 November 2004 15 Three Expressions: Human-Readable: Commons Deed Lawyer-Readable: Legal Code

16. CILT 24 November 2004 16 Three Expressions: Human-Readable: Commons Deed Lawyer-Readable: Legal Code Machine-Readable: Metadata

17. CILT 24 November 2004 17 Three Expressions: Human-Readable: Commons Deed Lawyer-Readable: Legal Code Machine-Readable: Metadata Logo + Link

18. CILT 24 November 2004 18

19. CILT 24 November 2004 19 Licenses: Attribution No Commercial Use No Derivative Works Share Alike

20. CILT 24 November 2004 20 Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

21. CILT 24 November 2004 21 Jurisdictional origins and future perspectives The original licences were drafted under US-law and in English Local legal versions today exist for Japan, Brazil, Finland, Holland and Germany CC is collaborating with local project leads (ie mostly academic institutions) in the various target countries The porting process / guidelines

22. CILT 24 November 2004 22 Think Glocal The Creative Commons project is global in scope: seeking to reform intellectual property law in all major jurisdictions The project‘s success ultimately depends (i) on acceptance and use of the licences by consumers / end-users in many different localities and (ii) on the licences‘s enforceability in the courts Hence, the licences must be transposed into different jurisdictions and languages

23. CILT 24 November 2004 23 Why is it legally necessary to offer international versions of the licences? [consumer protection] (I) The problem of language According to the case law of the German BGH, standard terms and conditions for consumer contracts (AGBs) have to be phrased in German The French Loi Toubon required all contracts to be drafted in French; though the law is revised by now, free software licences such as the GPL are still regarded as invalid because they are in English The principal reason for these difficulties is the European Directive on unfair terms in consumer contracts

24. CILT 24 November 2004 24 Why is it legally necessary to offer international versions of the licences? [moral rights] (II) The problem of waiving moral rights Differences between Anglo-Saxon copyright law and continental droit-d‘auteur systems Pace article 6 Berne Convention a global waiver of moral rights is not possible under (eg) German law This gives rise to complex questions in the case of derivative works and the Sharealike licence

25. CILT 24 November 2004 25 Why is it legally necessary to offer international versions of the licences? [liabilities and warranties] (III) The problem of liablities and warranties Global disclaimers exempting licensor from any warranty or liability (eg sec. 5 and 6 CC) whatsoever are considered invalid under German law This is the case for both consumer contracts (AGBs) and non-consumer contracts (eg cases of grave negligence) Mandatory provisions of the BGB

26. CILT 24 November 2004 26 Internationalizing the licences gives rise to important legal questions In international private law Copyright issues are governed by the principle of territoriality as set out in the Berne Convention Contractual issues encompass such questions as formation of contract, the consequences of non- performance, interpretation, warranty and contractual liability; refer to article 4 of the Rome Convention 1980

27. CILT 24 November 2004 27 So how should we deal with these questions? Is it legally possible to have one generic legal text in English that is globally enforceable? Licencing under a multiplicity of different licences Interoperability clauses

28. CILT 24 November 2004 28 Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

29. CILT 24 November 2004 29 The UK CC licence draft The CC UK licence currently under discussion was drafted in collaboration with the BBC The draft is much more readable than its US counterpart (and indeed than most other national versions) as it uses plain and simple language The draft is also laudable in its intent to constitute a generic license for global use (rendering unnessecary the effort of manifold translation)

30. CILT 24 November 2004 30 The UK CC licence draft: process (I) CC-UK organisational structure (a): Hosting Institution Project Coordinator Legal Project Lead Legal Advisory Board Licence Drafting Team CC-UK mailing list

31. CILT 24 November 2004 31 The UK CC licence draft: process (II) CC-UK organisational structure (b): Public Project Lead Public Advisory Board Public Interest Organisations Creative Commons Network

32. CILT 24 November 2004 32 The UK CC licence draft: process (III) Open Sourcing the drafting process: Original draft by Law Firm Peer review by LAB and CC-UK mailing list Draft by the Oxford drafting team Peer review by CC-UK mailing list + Public organisations Focus groups/ interviews with artists Co-drafting with the BBC/ other public interest orgs Peer review by CC-UK mailing list/ LAB/ iCC Final draft

33. CILT 24 November 2004 33 The UK CC licence draft: synergy The role of the public sector in the UK: Re-inventing the public sector Creative Citizens Involved public interest organisations include: BBC Tate British Library British Academy Channel 4 Collecting societies

34. CILT 24 November 2004 34 The UK CC licence draft: creativity Input from focus groups: Arts Council Collaboration 12 artists focus group Narratives Real life use of the CC web interface Developing new forms of licences

35. CILT 24 November 2004 35 The UK CC licence draft: Issues Legal: Interoperability (BBC/ Europe) Black holes Moral Rights Collecting Societies Bare Licence? Strategy: Community building Bring the content out Beyond Licensing?

36. CILT 24 November 2004 36 CC-UK in the educational context I: Actors - Commercial Educational Content Providers vs Open Content -The role of Collecting Societies/ Trade Unions -The role of (public) broadcasters (BBC/ Channel Four) -The role of Museums (Tate) -The role of Public Libraries (British Library) -The role of Regulators (OfCom) -The role of Public Service (The Arts Council) -The role of Academic Institutions (JISC, Oxford, The London School of Economics)

37. CILT 24 November 2004 37 CC-UK in the educational context II: Tensions Content Creators/ Collecting Societies vs. Content Repositories/ Broadcasters: Different revenue models and their implications (commissioned vs self-standing works) Publishers vs. Content Repositories Questioning the role of public broadcasters Commercial vs. non-Commercial educational material providers (content vs. Service)

38. CILT 24 November 2004 38 CC-UK in the educational context III: finding and creating content The changing concept of authorship/ incouraging initative Copyright Education Find Available Material Searches Repositories Minimising costs Sharing Resources Encouraging Content Production

39. CILT 24 November 2004 39 CC-UK in the educational context IV: The Future Translation Issues CC-Europe Synergy Creative Licensing (CC-UK) Meta-Commons (CC-UK)

40. CILT 24 November 2004 40 Contact Information: Creative Commons Creative Commons UK Centre for Socio-Legal Studies Wolfson College OX2 6UD, Oxford Unitied Kingdom Prodromos Tsiavos: +44.7812.581.864 Prodromos.tsiavos@socio-legal-studies.oxford.ac.uk