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Mmm . . . Free Samples (Innovation 1a)


This post is the first in a series that will roll out, over the course of this week, potential innovations to our licenses for your review and comment.

Mmm . . . Free Samples

Right now, our menu of license options lets authors choose between prohibiting or encouraging a) commercial re-uses of their work, and b) transformations of their work.

It does not, however, let an author choose c) to encourage commercial transformations of their work while d) prohibiting commercial verbatim copying of their work.

That is, if you like the idea of people making a remix of your song, or re-cutting your film, but you don’t want them simply to sell whole, unaltered copies of your work, our licenses today may not perfectly fit your needs.

The “noncommercial” provision is a blanket restriction, treating all commercial uses — no matter how innovative — the same.

Creative Commons could do better, say Negativland, People Like Us, Wayne Marshall, and other artists at the forefront of the booming digital collage culture.

Many folks like the idea of inviting others to build on their work; and they really like the notion of a copyright regime that would recognize and honor that practice. (Of course, copyright today doesn’t.)

Don Joyce of legendary culture jammers Negativland nailed both of these concepts in an early conversation with us on the subject:

“This would be legally acknowledging the now obvious state of modern audio/visual creativity in which quoting, sampling, direct referencing, copying, and collaging have become a major part of modern inspiration. [A sampling option would] stop legally suppressing it and start culturally encouraging it — because it’s here to stay. That’s our idea for encouraging a more democratic media for all of us, from corporations to the individual.”

In this spirit of democratic media and collaboration, we offer this draft provision for your comment and improvement. You are all Kings and Queens of Copyright: What would proper “sampling” and “collaging” look like in your world? How might you build on or re-mix our formulation below?

You may not exercise any of the rights granted to You in this license in any manner (except as described immediately below) that is primarily intended for or directed toward commercial advantage or private monetary compensation.

You may exercise the right to create and reproduce Derivative Works in a manner primarily intended for or directed toward commercial advantage or private monetary compensation — provided that the Derivative Work(s) constitute a good-faith “sampling,” “collage,” and/or “mash-up,” as appropriate to the medium, genre, and market niche.

Now, we anticipate that the phrase “as appropriate to the medium, genre, and market niche” might prompt some anxiety, as it leaves things relatively undefined. But there’s more method here than you might expect: The definition of “sampling” or “collage” varies across different media. Rather than try to define all possible scenarios (including ones that haven’t happened yet) — which would have the effect of restricting the types of re-uses to a limited set — we took the more laissez faire approach.

This sort of deference to community values — think of it as “punting to culture” — is very common in everyday business and contract law. The idea is that when lawyers have trouble defining the specialized terms of certain subcultures, they should get out of the way and let those subcultures work them out. It’s probably not a surprise Creative Commons likes this sort of notion a lot.

Posted 11 March 2003