Interview with Lawrence Lessig

Amid the gathering copyright storm of the early “noughties”, which pitched the established copyright world against new-found digital creators, Lawrence Lessig and his colleagues sought to establish a middle ground by launching the Creative Commons (CC) Project. In this interview, Professor Lessig explains how Creative Commons came about, and why he thinks it is so popular. He also shares his views about what needs to be done to translate copyright’s legal architecture, born in the 19th century analogue world, to the realities of the 21st century digital world.

Lawrence Lessig talks about
Creative Commons.
(Photo: L. Lessig)

What motivated you to set up Creative Commons?

At the turn of the century, we saw a kind of “perfect storm” for culture on the horizon. We had a digital infrastructure that encouraged a wide range of sharing, remixing and publishing that just could not have happened in the 20th century. We also had an architecture that triggered copyright law each time a copy was produced. This put digital creators on a collision course with the law, whether they recognized it or not. For many, especially those operating in what I call the sharing economy, this made no sense. A large percentage of them continued to create on digital platforms irrespective of copyright law, and piracy rates skyrocketed.

We feared that a collision of these two forces would produce either a movement that sought to abolish copyright or a rigid system of enforcement that would shut down all of these great new activities.

At the time, the prevailing view was if you weren’t in the traditional “all rights reserved” camp, you must be anti-copyright or a pirate. We sought to establish some middle ground because we recognized that, in fact, many people believed in copyright but did not believe that their creative works should be as tightly regulated as they were under the all rights reserved model.

We decided to build a voluntary opt-in system whereby creators could mark their works with the freedoms they wanted them to carry. This system affirms a belief in copyright, because it is in essence a copyright license, but it also affirms the values that underpin those creative environments – or ecologies – in which the rules of exchange are not defined by commerce but depend on the ability to share and build on the work of others freely.

In how many countries is Creative Commons present?

Creative Commons has launched projects in around 80 countries. Our influence is constantly expanding as new jurisdictions come on board. CC’s work around the world is largely accomplished through a dedicated network of CC affiliates who undertake a range of promotion and outreach activities in various jurisdictions. These include raising awareness about CC legal tools generally – helping communities use CC licenses for example, to develop open educational resources and supporting would-be adopters in understanding how our licenses work. In 2009, the Creative Commons (CC) Project experienced its strongest burst of growth and now covers at least 350 million objects on the web.

The Middle East has become one of the biggest growth areas. Egypt, Jordan, Lebanon, Qatar and the United Arab Emirates have all begun processing CC licenses. What is very interesting is that, in these countries, CC actually encourages greater respect for copyright. So it seems that, in a context in which copyright is not widely respected, a more moderate claim by copyright owners for rights to be applied in some areas while allowing freedom in others, is more likely to encourage that respect by consumers. CC is a way to build understanding and respect for copyright and that is what we are seeing in the Middle East.

Why do you think it has become such a popular model?

There are political and practical reasons for this. The political reasons are related to what I call the “copyright wars”. Some people want to find a different way to regulate creativity, and do not believe that a narrow and rigid application of copyright law in the digital age makes sense, especially for activities in the areas of education and scientific research and for amateur works. There are also important practical reasons as well. In universities, for example, in the same way that students need to learn to write, they also need to learn how to use digital media, for video, film or remixing music. That is what it means to be literate in the 21st century.

Creative Commons has launched projects in
some 80 countries

CC-licensed material is a safe alternative to the extremely expensive and cumbersome process of obtaining licenses for students to engage in the creative opportunities presented by digital technologies. It is an alternative to just ignoring copyright and to exposing academic institutions to significant liability.

Is a CC license something anybody can use?

If they cannot, it is a failure on our part. Our idea was to create a simple way for authors and copyright owners to make content available with the freedoms they intend it to carry. In sum, it is a “some rights reserved” model whereby certain rights are reserved by the copyright owner and others are released to the public.

The licenses are structured in a way that gives creators choices in the uses and freedoms they would like to allow. The licenses support different ecologies of creativity – those with money1 at the core and others operating in the sharing economy2. By selecting simple freedoms and restrictions, creators can choose to enable others to share their work or remix it, subject to the restriction that this use must be only for non-commercial purposes or that any derivative must be released under a similar “share alike” license.

Different licenses support different creative ecologies. The non-commercial license, for example, supports the amateur ecology of creativity, allowing creators to know that their works will be used by others according to the rules of sharing and not the rules of commerce. When you produce a photo and post it on Flickr, selecting a non-commercial license for its use indicates that you are happy to share it with others for non-commercial purposes. If, however, someone wants to use it to illustrate the cover of a CD they intend to sell, the Creative Commons Plus Protocol offers a simple, cost-free means of licensing that same work for commercial purposes.

The simplest and freest license, the attribution only license, supports the professional, amateur and scientific ecologies of creativity, because it produces free resources that can be drawn on and used at will. The attribution license indicates that licensors are completely open to others making commercial use of their creative works. In 2010, for example, the broadcaster Al Jazeera released a huge archive of its video material under such a license, meaning that anyone can take that raw footage and use it as long as the content is attributed to Al Jazeera. This serves the organization’s commercial objectives, enabling it to spread its brand using infrastructure-free licensing. In 2009, Wikipedia also adopted CC for all its licensed material and happily encourages its commercial use. The only requirement is that if you make changes, you must allow others to use the changed material under the same type of license.

Is there any concrete evidence that businesses are growing up around this model?

Certain businesses could not exist were it not for this kind of licensing. For example, businesses supporting remixed music – sites that encourage people to contribute remixes or to take their music and to remix on top of it. Without CC-licensed music, it would be impossible to do this legally. Music encompasses an extremely complicated suite of rights, and negotiating those related to publishing and recording is extraordinarily complicated. CC licenses radically lower transaction costs for such works. There is now a huge archive of CC- licensed music. I am not saying that illegal versions do not exist, but that legal versions depend essentially upon this kind of licensing.

“Laws for a free society depend on people having an intuitive sense of why they exist” - Lawrence Lessig

If you had a crystal ball, what would it say about how copyright will evolve in the next 10 years?

The crystal ball has a question mark in its center. There are some fundamental choices to be made. We will either choose to continue to wage a hopeless war to preserve the existing architecture for copyright by upping the stakes and using better weapons to make sure that people respect it. If we do this, public support for copyright will continue to weaken, pushing creativity underground and producing a generation that is alienated from the copyright concept.

Alternatively, we can make peace and think about a more sensible architecture for copyright in the digital age, determining what it should look like and how to establish it. WIPO has a key role to play here; for example, in leading the process by establishing a blue-sky commission to come up with simple and clear recommendations for a system that is in tune with the digital age; a system that ensures that incentives are safeguarded while freedoms are assured.

If we design an architecture that makes sense to developing countries; that ensures artists are paid while protecting freedoms for scientific and amateur creativity, then I think we could find that copyright is once again a well-grounded kind of regulation that everybody understands. Laws in a free society depend on people having an intuitive sense of why they exist. The fact is that the current copyright law architecture does not make sense. It is not that copyright is not important – it is critical – but that, in its current form, it fails to ensure adequate incentives and fails to protect necessary freedoms in the digital environment. It was built for a different world so let’s just update it and adapt it to this world so that we can raise a generation that continues to believe in it.

I think if the copyright regime focuses on the people we are supposed to be helping, the artists and creators, and builds a system that gives them the freedom to choose and to protect and to be rewarded for their creativity, then we will have the right focus.

What message would you give to a young artist starting out?

I think the message today is, nobody knows, and experimenting is what we have to encourage. Artists need to recognize that and need to be part of the process. As a lawyer, and a founder of Creative Commons, I do not tell artists that they ought to give away their stuff for free. I tell them that they need to use the tools available and to experiment to find out what works for them.

What motivates you?

There are very few people in our society who are actually free to say what they believe. I am in an extremely fortunate position in having this enormous gift of freedom and believe I should try to use it to do something useful for society. As long as I feel as if I have something to say, I’ll continue to try to do that.

__________________________
1  For these ecologies, control of creativity is important to ensure the artist receives the compensation that gives him the incentive to continue creating.
2  Where the creator creates for the love of creating and not for money.