Can someone publish your Instagram pictures and exhibit them in a gallery? What happens if one of your tweets is used by other person in exactly the same way without acknowledging the source? Have you ever used images found through a Google query in your slides, your website, or in a visual meme? How about using a few seconds of sound from a record for creating a beat or a TV news excerpt for making a video documentary? As copying and re-using content has become a widespread cultural practice in the digital age, creators confront several dilemmas at the moment of making new works that use the content previously created by others.
In this entry I outline a set of basic licensing practices that we should consider when creating, circulating, and remixing digital works. This outline is a work-in-progress and intends to provide an overview of the key concepts and licensing practices for maintaining a digital creative hygiene.
Understanding the basics of copyright is fundamental for digital creators. Copyright refers to the exclusive rights of a creator to do certain things with an original work such as publishing, distributing, and adapting it. Copyright is a law that gives creators the right to display, to share, and to perform their creative work, as well as to earn money from it. To be copyrightable, a work must be a fixed expression, not just an idea. As soon as it is fixed in a media format, the work is copyrighted. From literary to photography works to songs, copyright covers a broad range of creative expressions. Hence, most of the content we find and circulate on the Internet is copyrighted. Even a joke published in the form of a tweet is subject to copyright.
Given the rapid technological change and the practices that people has developed with digital tools and networks, copyright has constantly been questioned and challenged not only by the work of artists, musicians, and designers, but also by the vast number of people that shares content online and participate in Internet culture. Think for instance about how visual memes spread and how they are created by remixing copyrighted images. Although copyright owners, especially media corporations, are still suing people who uses or shares content that is copyrighted, or asking social media platform as YouTube to remove content that infringes copyright, a more open approach towards the circulation of content has been developing. Meanwhile, advocates of a participatory and free culture continue to fight against copyright laws and to support a digital culture that is re-writeable, copy-able, and share-able.
Fair use provides a defense to the use of copyright materials for transformative works, without permission of the copyright holders. It is a legal doctrine that exists in order to balance the power of copyright. The four different factors that determine whether a use is fair are: 1 ) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the use; and 4) the effect on the market for the underlying work. From the visual memes that circulate on the Internet to the music of Girl Talk, from the Kutiman music video mash-ups to the digitization of printed books by Google, digital culture has thrived while applying the principles of the Fair Use doctrine.
Alternative licenses have also emerged in order to expand the range of possibilities that digital tools and networks offer for transforming, circulating, and remixing multimedia materials. Creative Commons (CC) licenses, for instance, offer an alternative to the “all rights reserved” of copyright, allowing creators to choose which rights they want to waive for the benefit of others and to communicate it clearly at the moment of publishing their works. CC licenses foster a more agile and low-cost copyright regime based on the premise that only “some rights are reserved.” Such alternative license system has supported the building of digital commons or repository of creative works, fostered a more free, creative, and re-writable culture. According to the last state of the commons released on 2015, over 1 billion works, including photos, songs, texts and other content, have been licensed with CC. Several web 2.0 platforms like Flickr, YouTube, and SoundCloud have supported the use of CC licenses.
Works in the Public Domain are not subject to private ownership and copyright. They are works whose exclusive intellectual property rights expired, or are inapplicable. Creative works “fall in the public domain” when the copyright term expires or is abandoned. This varies across countries and depends on the authors’ death (+ 70 years) and on publication and creation dates (95 years from publication or 120 years from creation whichever is shorter). Moreover, works that have been created before the existence of copyright (first copyright law appeared in 1710 in the UK) are also part of the Public Domain. Information and works in the Public Domain foster creativity, knowledge production, education, and the thriving of culture. The increasing access to digital archives and the popularization of massive digitization process has promoted the open access to Public Domain works. Platforms such as Project Guteberg, the Internet Archive, Public Domain Review, and numerous public,and private libraries around the world such as the Digital Public Library of America and Europeana have created a thriving Public Domain ecosystem.
Finally, it is worth mentioning that the practice of attributing and crediting the original source is key for maintaining the creative hygiene. By providing the correct attribution creators recognize the work of others, build connections, and can become part of creative communities.