Creative Commonsense? An analysis of tensions between Copyright Law and Creative Commons

The Creative Commons (CC) movement operates as an important counterpoint to the expansionist copyright regime in the digital environment relating to recorded music by seeking to create a free and simple licensing mechanism that operates to construct a pool of content that creators can use without charge. It creates an alternative model for creators to use in order to authorise the use/reuse of their work that circumvents the traditional market for copyright content as well as fostering its own CC-orientated intermediary outlets.

4 may struggle to emerge beyond its relative self-established niche. Whilst the alternative CC offers may be of primary appeal to many creators, the intermediary divergence between CC and copyright may therefore make it difficult for them to transition from an environment of sharing and re-use to one of commercial viability.
The piece begins with a brief overview of the CC movement and available licences, before examining its relationship with copyright law; concluding that it arguably constrains creators in terms of the content they can use to produce new works and does nothing to necessarily overcome the complexities posed by copyright infringement should a licence be breached. Despite this, there are a number of intermediaries that provide CC-licenced music which suggests that the movement has some traction. However from looking at the market for such works, it will be argued that that it can never form a viable market alternative owing to inherent incompatibility between CC-licenced music the commercial revenue-driven market for music. It will conclude that the CC licensing system makes it difficult to transition from an amateur to a professional context. Whilst this may be a problem for some (although certainly not all), the music industry engendered by copyright is certainly not free from its own problems broadly caused by a lack of understanding and flexibility toward the very technology that CC recognises as being crucially important: the Internet. Although there is nothing in copyright law that prevents a creator from exploiting their work and forgoing commercial remuneration, the fact that CC simply offers an alterative may perhaps be its strongest feature through allowing more formal and indeed symbolic, repositioning of power to creators themselves.

Creative Commons (CC) was founded in 2001 by James Boyle, Michael Carroll, Lawrence
Lessig, Hal Abelson, Eric Saltzman and Eric Eldred6 who sought an alternative to the traditional copyright system. The CC organisation is a non-profit, US-based establishment which operates as a licensing platform to promote the free use of creative works; both in terms of cost and freedom of use (to a degree)7, which recognises the value arising from the ability to engage and interact with a resource. To an extent, the CC movement is to be admired as being a positive response to digital copyright infringement by removing restrictions on reproduction and distribution at the source, thus appreciating the normative expectations of users in relation to digital technology8. In contrast, copyright policy in the area has largely been negative (or restrictive) in its response9 and practice. It assumes that it is possible to replace existing content production and distribution practices10 with the ultimate objective of positioning creative works as resources available to the public11 as well as 'to promote alternatives to a one-way, passive consumption of 6 commercialized culture'.12 CC perceives the current copyright regime as a major obstacle for creative activity; something which has been more acutely felt with the development of the Internet and digital technologies. These have created an environment which facilitates the consumption of content which in turn helps to inspire and generate new works; substantially reducing the cost of digital creations and potentially enabling greater participation by users in the creative process13. Crucially, it has also enabled new forms of reuse which were not previously possible from the perspective that copyright law operates too well and is restrictive of such creative practices. This is important as creative practice is generated by and through exposure to other content14, and the availability of content is crucial in maintaining a healthy creative environment15. Therefore, CC aims to create and promote an alternative market for the production and consumption of digital content in line with norms and the possibilities afforded by this digital architecture. The overall strategy of the Furthermore, it endeavours to lower the costs associated with copyright in terms of producing new works; the 'permissions process' for using copyrighted material can be cumbersome and expensive; therefore, CC has attempted to create a type of 'modularised' contract that creators can use to pre-authorise certain use(s) of their content17. The fulcrum of this position is the creator's control over content use through the CC licensing structure; conveying a formal expression of legal identity18 which allows them to extract agreements on reproduction19. There are six licences to choose from and out of these, three permit commercial use (Attribution, Attribution-ShareAlike and Attribution-NoDerivs), whilst the remainder no not. However, it does not appear that the term 'commercial use' is defined, although it may be presumed to be the opposite of CC's definition of 'NonCommercial': 'primarily intended for or directed toward commercial advantage or monetary compensation'.20 There is acknowledgement that no activity may be completely separated from commerciality, but that the primary nature of the reuse is what should be considered21.
It is important to note that all the non-commercial licences contain a special provision for 17  file-sharing (as this is deemed a commercial activity22), which is permitted, provided this is no monetary compensation23.
The aim of these licences is (broadly) to authorise the use of copyrighted works for purposes that may otherwise constitute infringement under traditional copyright law24. All the licences also terminate automatically if a work is used contrary to the specified licence terms25. The component elements of the CC license 'kit', namely the 'Deed' and 'Licence Code' are intended to make the licence more accessible and understandable for users, as opposed to lawyers26 (on which particular emphasis was placed27). These are accompanied by an icon or graphic designed to indicate the key feature of the particular licence. The introduction of the CC system reflects the changes in the concentration and subsequent decentralisation of information (and content) production28 that digital technology facilitates29.

Creative Commons and Copyright
Nonetheless, the production and distribution of music in digital form still functions in accordance with the operation of rightsholders who have utilised copyright to preserve their pre-existing market operation. CC could also be seen as a response, not just to digital technology, but also to the effect it has had on copyright law30 which has been expansively applied by rightsholders to secure their rights in the digital environment.
Although CC has its own different rules31, copyright and CC can both operate jointly over music content and are therefore co-existent; copyright provides the underlying protection from which use can be administered via the CC licence. The fact that CC operates with copyright law as its regulatory underpinning is perhaps its most workable aspect as it does not require any restructuring of copyright law itself and is unlikely to prejudice the commercial interests served by the existing regime32. Nonetheless copyright is the inescapable legal interest that underpins the work itself. The CC licences seek to place such works in a 'commons'33; a term that has come to be used increasingly over the last number of years to refer to wellsprings of creation that are outside of, or different from, the world of intellectual property34. In essence, the idea of a 'commons' refers to a situation where access to, and use of, a resource is organised on a nonexclusionary basis. Reduced to its conceptual minimum, it entails a situation where no specific individual or entity is recognised under the law as having a right to exclude others from access to and use of a given resource35. Nonetheless, it appreciates the realities of copybased digital reproduction and 'An information commons is possible because information is nonrival, and is an input and an output of its own production process'.36 Such a 'commons' could theoretically exist in the form of any available digital content, whether copyrighted or not. A great deal of infringement occurs every day37 and therefore the notion of a separate 'commons' does not apply well in the digital environment. Given the opportunities digital technology has afforded, the commons here can theoretically be any content in digital form provided that it is available or accessible to users, regardless of copyright protection38. It could be argued that because content is so easily available online, the boundaries between a 'commons' and protected content have blurred to the point of indivisibility as 'All popular music ... essentially, if not legally, exists in a public domain'.39 Indeed, copyrighted music has a central place in genres such as the practice of 'Plunderphonics' which is 'an umbrella term for any music made completely out of existing audio recordings, including copyrighted material, and then altered in some way to create a new composition'.40 Although the CC and copyright systems are co-existent insofar as CC is entirely dependent on copyright, copyright treats almost all unauthorised use of content as infringement; save for those which may be covered under the fair dealing exceptions, which themselves have been described in the past as 'rigid'41, or at least 'outdated'42. In comparison, CC pre-emptively delineates a sphere of use for the work according to the particular licence chosen. Furthermore, as digital consumption is copy-based, resource depletion is not an issue and in this instance, it could be argued that CC unintentionally creates a degree of artificial scarcity within the realm of available content by exercising licensing control to delineate a self-prescribed commons, albeit it one which available for legal use. This is because CC applies only to such self-prescribed works (as opposed to copyright's automatic protection) and as such, it fragments available content into a commons with different usage restrictions and enforces its own barriers based on its own licence terms.
Therefore it can be argued that the effect of CC licencing is to define and re-establish boundaries within the volume of content accessible, and useable, to a creator. 39  It is based on the premise of relocating power in the hands of the authors, but at the same time aims to be grounded in the expectations of users43 (in terms of allowing the re-use of content) even though most CC users have played no part in the development of the licences44. As such, users of CC-licensed content are bound by one-way licence declaration on the part of the author and this has proved problematic in the past. Licensing mechanisms also exist under copyright law that allow pre-existing copyrighted content to be utilised in the creation of new music and arguably a CC licence attached to a work introduces another potential variable to be taken into account45 over and above copyright and potential associated costs. There is also no guarantee that CC-licensed content may be treated with any more (or less?) reverence than copyrighted content in respective the contexts of professional and amateur music production. This can be seen in the Freesound46 project; a collaborative database of over fifty thousand47 CC licensed sounds48. Content on Freesound consists of samples, drum loops, and other electronically produced sounds available for others to use49. perceived problems in copyright law that CC aims to overcome actually resurface. Although little of the associated CC case law53 deals with copyright infringement directly, it has been relevant to some of the decisions54. As mentioned above, the aims of the licences are to authorise the use of content where such use may otherwise infringe copyright law. Therefore, a breach of the licence necessarily entails a breach of copyright as well and this being the case, recourse to copyright law may be the inevitable option for the creator. Although CC appreciates the realities of the digital environment along with new and emerging forms of content use (and reuse), it ultimately fails to provide any alternative to copyright where use in contravention of the CC licence, i.e. unauthorised use, occurs. In this particular instance however, the remedy sought by Cage was the appropriate attribution for himself and/or Freesound as per the licence, following dialogue with the band's management. His further correspondence on the matter is also reflective of the CC ideology and the Freesound project in particular, and crucially is indicative of the mindset of those who have adopted the mechanism.

Creative Commons and Intermediaries
CC has had a strong uptake in terms of online content providers as well as facilitating the development of new and CC-focussed intermediaries that focus on CC-licensed content provision. Notwithstanding the issues discussed above, attention will now turn to these in order to assess their viability in facilitating a viable market for CC works. In contrast to the joint-operation of CC and copyright over content, this section will argue that when it comes to the exploitation of CC content, the relationship between the two actually operate to 53  segregate CC-licensed content in such a way so as to make a movement from 'amateur' to 'professional' content creation difficult.
As has been stated, CC aims to create an alternative market structure for creators participate in, as opposed to the 'traditional' (commercial) market engendered by copyright law and although CC also provides for non-commercial use, there has still been a substantial uptake of the licensing model. already-produced works are rationed and co-ordinated59; which in the online context is different from 'traditional' market-based content distribution governed by copyright. Indeed, the goals of CC with its focus on sharing and reuse are different from the profit-orientated approach of the music industry; such that the two should not necessarily be regarded as being in competition with each other (nor should it be assumed that CC is trying to overtake, or replace, existing mechanisms of content creation). Nonetheless, attention should be paid to outlets for such content in order to evaluate whether or not CC can provide an attractive alternative for creators.
As user-generated content proliferates, the traditional boundary between popular culture and amateur productions is changing with today's popular content sharing sites (such as YouTube) dominated by user-generated content60. CC has fostered its own online intermediaries and under many circumstances, sharing can be more beneficial than marketbased distribution61. Because they offer different possibilities from copyright, the CC licence options can act as a 'disintermediating' force because they enable end-to-end transactions of content. However they can also act as a 'reintermediating' force by allowing new services and communities to form around such content62. With the music industry focussing on fewer acts and taking on fewer risks63, there are opportunities for markets to develop and CC 59 WJ Gordon, 'An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and 17 licences may therefore have the possibility of enabling new intermediaries64 to grow . One such intermediary is the Free Music Archive65 (FMA). A search on the FMA music website first and foremost reveals range of musical genres and sub genres66, many of which would arguably not be classed as 'mainstream'. Instead, these can be seen as 'niche' genres which although they may not have universal appeal in themselves, may combine to form a sizeable portion a music market when taken together. Another intermediary is Jamendo which provides a commercial outlet for CC-licenced music and one which is distinct from the copyright-based collecting agencies67. Specifically, its Jamendo Licensing arm allows for the commercial exploitation for music for those artists registered on it through a range of licences for both individuals (priced at £3.99) and companies/legal entitles (ranging from £35 to aggregators and measurers of commercial success through the official charts system74.
Streamed music has a role here too and is combined with physical sales and downloads to gauge a song's popularity75. However, this supports a much more revenue-orientated model of eligibility requiring a minimum pricing threshold; for example, digital tracks must have a minimum price of £0.40 GBP as 'singles' in order to be eligible76. Similarly, one hundred streams of a song is equated to one download thereof77. A revenue-based model is arguably necessary as music production can involve high initial costs78 and it can take up to 1 million GBP to launch a new music act79. This has traditionally been mediated through capital80; implicating a broader economic structure at an 'industrial' level and which copyright provides for the music industry. CC therefore assumes a limited view of creators as being those who may always permit the use/re-use of their work without potential remuneration; transactions are not efficient except for a minority of works with sufficiently high commercial value and that money is not an ideal motivator for creativity and innovation82, it can also be argued that very few artists utilising CC licensing will be able to sustain a living purely from their music83. As a result, it is questionable whether creators would then have sufficient incentives to produce new works in a system is based on freedom and sharing.
Owing to the joint operation of copyright and a CC licence over a piece of content, it theoretically means that there is nothing preventing the creator from exploiting their work (through copyright) outside of the CC system as the two are not mutually exclusive.
However, should content be made freely available under CC, then direct commercial exploitation of the content through copyright becomes practically impossible; for example, a record label would be unlikely to be willing to licence and exploit something which is (or has been) already available online for free. Alternative exploitation may be an option which may be realised through so-called '360 deals' which, broadly speaking, give the rightsholder (i.e. the record label) a share of merchandising, ticket sales and many important aspects of an artist's career84.
CC is not necessarily a mechanism to facilitate profit directly from content, other than the 'value' that comes from attribution. This serves as an important contrast to the 'traditional' operation of the music industry which places the utmost importance on the 82 EE Johnson, 'The Economics and Sociality of Sharing Intellectual Property Rights' (2014) 94 Boston University Law Review 1935-1995, 1994 83 S Bazen, L Bouvard and JB Zimmerman, 'Musicians and the Creative Commons: A survey of artists on 21 market and may arguably be modified to take account of their own interests85 (for example, the inclusion of music streaming in the charts, as mentioned above). Attribution may be the most important thing above all else86 for creators as was the case with Nic Stage discussed above; in which case CC may be of benefit because 'Copyright's processes are relevant primarily to centralized copyright industries ... For amateurs, however, it isn't clear that copyright law is very important at all'.87 However, such an 'amateur' context may be to the movement's detriment as creators would be unlikely to devote themselves fully to creative practice if they cannot profit from the value that others place in their work88. It needs to be borne in mind that although CC may make it difficult for creators to profit from their endeavours, this is not the goal of the movement; arguably, the real benefit of CC will be for creators who now have the ability to exploit their own works without, hopefully, being exploited themselves89.
CC is inherently dependent on copyright in order for the licences to function and although it seeks to overcome the costs and burdens copyright may create when it comes to content production, there are still clear problems CC faces. Although there are mechanisms to facilitate audience-building, the only mechanism by which to receive 'compensation' is the 85  pre-existing copyright market structure which CC is unable to incorporate itself in; leaving it vulnerable to misuse (including misuse by professionals). This makes it difficult to emerge from its niche status despite the availability of CC-focussed intermediaries. In contrast with the dual relationship copyright and CC has over content, at this juncture there is an insurmountable segregation between content protected by copyright and content specifically governed by a CC licence. CC artificially constrains exploitation of the CC content through its own associated intermediaries; making both the creators and the intermediaries unable to engage with the copyright-driven commercial structure that is already in place. This is perhaps a fundamental problem for the CC strategy; the fact that it operates primarily a 'free' basis suggests that a market could not develop for such content. Although there are mechanisms to facilitate audience-building; the only mechanism by which to receive 'compensation' is the pre-existing copyright structure which may be preferable90 as it can allow for increased exploitation which can subsequently increase value. However, it does provide valuable recognition of the value of 'free' and the non-financial value, or recognition, that corresponds with this via attribution.

Conclusion
The CC strategy is not as revolutionary at it may perhaps first sound because it still effectively operates on the basis of copyright law, but this does not mean that the movement has no value. It has the benefit of being designed with the realities of digital production and distribution in mind and can be considered a more proactive response to the problems of digital copyright law than the mere updating of copyright law. Although CC may have 90 WJ Gordon, 'An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory' (1989) 41 Stanford Law Review 1343-1460, 1419 23 benefit in addressing user-norms engendered by digital technology, that is not to say it will provide a viable solution on its own. CC resources and copyrighted resources are indistinct in their practical availability and by artificially aiming to create 'scarcity' through its licensing system, CC limits users (and itself) to a relatively narrow and niche body of content. Theoretically, CC-licensed content is only available to serve as inputs for creative works. As such, the self-imposed architecture of CC artificially narrows the available creative resources to other CC-licensed works. Furthermore, it is questionable whether a viable market structure can develop in light of this because of the stipulated noncommercial/free and predominantly amateur context in which it operates. However, this does not jeopardise the movement's validity as an alternative to the traditional copyright market structures and for many (as is the case with Jamendo, mentioned above), could be seen as its key feature.
The CC movement recognises the opportunities afforded by digital technology for creation and dissemination of content. It has also afforded the development of CC-themed digital intermediaries to facilitate the distribution of content. Nonetheless, one must take a practical approach when looking at the markets for CC-licensed work. Many of the large organisations that utilise the licensing system are not necessarily content distribution services, but 'reference' services. As such, there is little (if any) revenue-generating market for such content. It may also be suggested that artists adopting CC licensing, whilst making a noble statement against the constraints of copyright law, are missing the point. The pure existence of such an enterprise demonstrates the potential scale and niche value the Internet is able to provide. The Internet is able to sustain a virtually infinite demand curve and while this may 24 plateau towards the bottom of the arc, it may extend as far as there is content to support it91 and copyright law can enable its exploitation.
CC may facilitate the growth of intermediaries providing licensed content as (financial) copyright licensing costs would not be incurred. This is no bad thing as providing an additional and alternative means of content dissemination92. However, copyright and commerciality still have primacy in this respect regarding the music market. It should be borne in mind that copyright also affords the option for gratuity; there is precedent in the music industry for the assumption that 'giving something away' can be beneficial, at least in terms of building a reputation for the artist93. In this context, the controlling legalities of copyright can be forgone (and in some instances, actively discarded by the artist); and in such circumstances, a CC licence is unlikely to make much of a difference. Furthermore, 'attribution' is a necessary component in terms of building an audience, and this would still be the case without an attached CC licence. Successful content exploitation it ultimately depends on building mutually beneficial relationships94 between artists and audience, which can be done just as easily through copyright and on the part of initiatives by the artists/creators themselves in presenting content to users and without such a formalised mechanism as CC licensing. Digital technology also facilitates this further. Whilst it may be concluded that the CC licensing system is flawed, that is not to say it has no benefit whatsoever. The dissemination of content under CC licences may be effective in providing creators with new opportunities95 (individually or via an intermediary) built on the value of attribution, although care should be exercised so as not to engender a 'gift culture'96. However, it is argued that CC existence as a practical, but also political97 movement is its strongest virtue. Copyright law is, and has been, subject to the lobbying interests of the content industries98; therefore, CC's a symbolic value based around the philosophies of sharing and contribution operates as an important counter-point to the aggressive and restrictive strategies employed by the music industry.