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Woods, Stephanie --- "Creative Commons - A Useful Development in the New Zealand Copyright Sphere?" [2008] CanterLawRw 2; (2008) 14 Canterbury Law Review 31


CREATIVE COMMONS - A USEFUL DEVELOPMENT IN THE NEW ZEALAND COPYRIGHT SPHERE?

Stephanie Woods*

I. INTRODUCTION

Imagine a person with interest and expertise in a particular area, who writes an online article. Their intention is not to profit from the work but to raise awareness about the topic of interest, so ideally it will be read by as large an audience as possible. Under conventional copyright law those who wish to use the work in a limited way, for the purposes of criticism for instance, can do so under the fair dealing provisions of the Copyright Act 1994.1 But, anyone who wishes to reproduce the work completely in order to distribute it and extend its readership will have to seek permission from the author.2 If the author intends to grant permission in all circumstances anyway this is not particularly efficient. What the author needs is a way to announce to the world that certain uses of the work that would normally infringe copyright, such as copying with acknowledgement, are, in fact, permissible. Creative Commons is an innovative private licensing system that allows an author to do just that.

Creative Commons licences (CC licences) can be used for almost any type of literary, artistic or musical work that would normally be covered by copyright and are particularly useful in the online, digital environment.3 Already many hundreds of thousands of photographs, videos, blog entries, online articles and other works are available subject to CC licences. The licences are a powerful tool for musicians, for whom mixing and sampling has always been an important element of the creative process. The idea is spreading to more traditional literary works too, in situations where the author does not intend to profit from his or her work and, hence, is amenable to others building on it. For instance, Creative Commons’ promoters hope that the licences will be used in an academic context, both by academics publishing their research and in more innovative ways, such as in the distribution of course materials.4 CC licences are also being used in the public sector to manage content of

public interest.5 The link between all these works is that their creators want flexibility to allow others to use the work in ways that are not automatically permitted under traditional copyright law.

Creative Commons was developed by the American legal academic Lawrence Lessig.6 Lessig was motivated by a belief that traditional copyright law has become too restrictive in terms of public access to creative works. Further, he considered it unlikely that a legislative response to the problem would be quickly forthcoming and thus sought a solution originating in the private sphere.7 According to Lessig, there are two extremes in copyright law today: full ownership (all rights reserved) and the public domain (no rights reserved), the latter of which has become increasingly eroded. Creative Commons is designed to provide a middle ground; 'to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them — to declare "some rights reserved"'.8 CC licences facilitate the creation of an 'information semicommons', a situation whereby copyright owners can forego some rights under copyright law, but not all as would be necessary if they were to put their work in the public domain.9 The idea is that a wider (but not complete) information commons will lead to greater innovation and creativity than conventional copyright law which favours strong ownership rights.

Originally, CC licences were designed with the United States (U.S.) copyright framework in mind. However, the movement has spread internationally and jurisdiction specific licences have now been produced in many countries.10 The establishment of Creative Commons New Zealand has been led by Te Whāinga Aronui The Council for the Humanities11 and New Zealand CC licences have recently been launched.12 For this reason, consideration of Creative Commons' role within our copyright framework is timely. In order to assess whether Creative Commons is a useful development in the New Zealand copyright sphere several questions must be answered. Firstly, the nature of conventional copyright law and challenges it faces in the modern digital age will be considered. The concept and origins of Creative Commons will then be discussed, as well as the likely legal status of CC licences. Finally, the overseas experience of CC licences since Creative Commons' inception has led to several concerns. These will be critically addressed with respect to the New Zealand situation. Ultimately, the discussion will enable some conclusions to be reached about the value of Creative Commons for New Zealand.

II. FOUNDATIONS OF CONVENTIONAL COPYRIGHT LAW

Copyright in common law jurisdictions such as New Zealand, Canada and Australia, as well as in the U.S., has been significantly influenced by English law. There, copyright protection developed based on both social and economic arguments.13 Creators were considered to have a natural right of ownership over works that they created. Further, economically, copyright protection was seen as a means of providing incentives for creation. However, it was also recognised that there was a public interest in this form of property based on the importance of access to creative ideas because creative works often build upon, and reinterpret, previous ones.14 A balance was required between the authors' interests in protection of their works and the right of the public to access and draw from such works. This balance is often referred to as the 'copyright bargain',15 and has significantly influenced development of the modern Anglo-American copyright systems.16 Importantly, the 'copyright bargain' illustrates that intellectual property rights such as copyright are not inherently treated the same as tangible property rights (such as land ownership). Private property rights over intellectual property are limited in scope and the appropriate level of protection will always be a matter of public policy.17

Internationally, intellectual property and copyright conventions such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Berne Convention for the Protection of Literary and Artistic Works impose certain common requirements on domestic copyright legislation, but the details in implementation are left to each country to decide individually.18 Copyright systems based on English law tend to be broadly similar, although the U.S. copyright protection has been significantly expanded compared to other English law based systems.19 Today, in New Zealand, the Copyright Act 1994 (Copyright Act) provides that copyright vests in any original literary, artistic, dramatic or musical work from the moment of creation for a period of life plus 50 years.20 A work protected by copyright cannot be copied by others without permission, except in certain limited circumstances.21 On expiry of copyright the work becomes part of the public domain and anyone can use it freely. The Copyright Act allows for the transmission of copyright ownership; by assignment (which must be in writing), by testamentary disposition, or by operation of law.22 Transmission of copyright may be either whole or in part. In this way is possible for the bundle of rights attaching to a copyright work to be severed, so that certain rights are transmitted while others are retained.23 The Copyright Act also allows for the licensing of copyright works and it is common practice for creators to licence others to use their works in certain ways.24 Conventional copyright licences are generally prepared on a one-to-one basis between a creator and a specific individual or company, with the exception of copyright licencing schemes which involve a centralised licencing process.25

III. CHALLENGES FOR COPYRIGHT LAW IN THE DIGITAL/INTERNET ERA

Concern has been raised that copyright law today is not well placed to deal with the way in which copyright works are created, distributed and used in the modern digital age. This has been the driving force in the development of Creative Commons.26 Webber notes two factors that have altered the intellectual property landscape: digital reproduction and the internet.27 In particular, the massive increase in copyright material available electronically has had a dual effect on copyright law, creating pressures for it to be both weakened and strengthened. On the one hand, the internet and other digital technologies make it more straightforward to illegally distribute work subject to copyright protection. As Lessig points out 'every act on the internet is a copy. Every act in a digital network produces a copy',28 and moreover, these copies cost next to nothing to make, and are of the similar quality as the original.29 Further, the internet and software development has always been fundamentally a collaborative project, and adherence to strong copyright protection inhibits this.30 Projects such as Linux, an open source computer operating system, could not fulfill their potential if each individual contributor held and enforced copyright on his or her contribution to the whole.31 Many other more recent internet projects, such as Wikipedia and Wikitravel also rely on the pooled contributions of many different creators.32 This has led many creators to reconsider the value of traditional copyright law and, in particular, where the boundaries of protection should lie.33

On the other hand, however, large corporate holders of copyright ownership are pushing to have copyright protection extended and strengthened.34 This is partly in response to the anarchic nature of the internet and the cavalier attitude towards copyright law held by many users of digital technologies. However, it is also a concerning development in its own right. Critics argue that copyright has moved away from its original rationale of providing a balance between private and public rights, shifting in favour of the ownership of intellectual endeavour. In the U.S. there are three major areas where concern has been raised: duration of copyright, restrictive licencing practices, and monopoly control of copyright works. Of course, American arguments about the overreach of copyright will not necessarily be pertinent in the New Zealand context. However, it is likely that they will increasingly become so, because many of the pressures identified are international in scope. Their impact will be felt by New Zealanders who use work created overseas (and New Zealand is a net importer of copyright works) or who create works that will be used overseas.35 Further, because of the international marketplace in creative works, New Zealand is likely to face pressure to conform to international intellectual property norms.36

Duration

The first concern expressed about conventional copyright is its duration. In the U.S. the period of copyright protection for both existing and future works has been extended so that copyright in a work created today expires 70 years after the death of the creator.37 Lessig notes that the U.S. Congress has extended copyright duration 11 times in the last 40 years, which has significantly limited the 'passing of works into the public domain'.38 Copyright protection started out being much more limited in duration. The Statute of Anne 1710 allowed booksellers or authors, if they had not transferred ownership, to prevent copying of their books for a period of 21 years.39 Publishers, however, wanted copyright to be perpetual, but in Donaldson v Beckett40 the House of Lords concluded that there should 'always be a balance in the law between proprietary entitlement and freedom of public access'.41 This case influenced the Framers of the Constitution of the United States, leading them to provide that Congress has the power '[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries'.42 Importantly, this clause does not give Congress the right to 'grant creative property rights', but to promote progress, which is a public purpose and not focused on protecting private property per se.43 Lessig argues that current U.S. copyright duration does not promote progress.44

Debate about the appropriate duration of copyright protection, however, is perhaps not as clear-cut as Lessig believes. In the European system copyright is seen as a way for creators to support their descendents, and hence copyright terms have always been longer.45 Life of the creator plus 70 years is typical of European copyright protection.46 Anyone making an argument that increased copyright duration is problematic must look to the European experience before drawing any negative conclusions. In any case, in New Zealand, copyright has not been extended in recent years. Of course, there may be international pressure for us to bring our copyright legislation into line with the U.S. in the future, for the purposes of reaching a Free Trade Agreement, for instance.47 Australia has already made such a commitment.48

But, ultimately, as Kingsbury notes, New Zealand has taken, and is likely to continue to take, a cautious approach to changes in the extent of intellectual property protection.49

Restrictive Licencing Practices

There are two facets to this concern about conventional copyright. Firstly, there is concern that the use of Technological Protection Measures (TPMs), also known as Digital Rights Management (DRM) technologies, to restrict copyright breaches is becoming widespread. Before purchasers can access a work, they are required to agree to particular licence terms. TPMs then prevent breach of the licence conditions. There is concern that these agreements 'purport to limit or remove the ability to use materials in a manner consistent with permitted acts and exceptions granted under the [Copyright] Act’, such as fair dealing,50 because TPMs 'can impose substantial restrictions on both access and the use to which the work is put, even after purchase'.51 Thus, it is possible that we are moving to a system where works are only available under licence, it is not possible to purchase a copy outright and where protection goes beyond the scope of copyright legislation.52 For instance, Lessig uses the example of the Adobe E-Book Reader, 'which gives publishers the power to control how people use the texts contained with the reader', including those which are already out of copyright and in the public domain.53 In this way, critics of TPMs argue that copyright law is being 'surreptitiously supplanted with contract law'.54

The World Intellectual Property Organization Copyright Treaty 1996 gives protection to TPMs.55 New Zealand is not yet a party to this Treaty. However, the Copyright (New Technologies) Amendment Act 2008, recently enacted, will bring us closer to compliance. The Act amends the Copyright Act, adding sections prohibiting circumvention of TPMs.56 In Select Committee the insertion of these provisions was supported because of a belief that TPMs uphold the law by protecting copyrighted works.57 However, as noted above, in many cases they also have the effect of preventing access without payment, thus also restricting users engaging in permitted acts.58 Nevertheless, ultimately there must be some mechanism for providing remuneration if the commercial creative industries are to be viable. As Lim notes, it may be the case that a 'pay-per-use' type framework, while not perfect, may be the best option to provide a reasonable balance in the digital age.59

The second part of the concern in relation to licencing is that traditional licencing mechanisms are costly and time-consuming, and not well suited to use in the digital environment. Because traditional licences usually only cover a specific situation, when someone else wishes to use the work in question, or the original licensee wishes to change the way in which they use the work, a new licence must be negotiated. For more traditional works, such as literary ones, this problem can be avoided by being part of a collecting society which undertakes all the licencing on the author's behalf, under a licencing scheme.60 However, for works created in a digital environment this traditional collecting society model does not work, because it is often very difficult to regulate and trace users of a work and creators are not generally looking to be paid for use of their work, but often just for attribution or other lesser rights. Further, many creators would like to be able to communicate their intentions directly to potential users. Having to use any sort of intermediary in the licencing process adds an unnecessary layer of bureaucracy. Elkin-Koren has noted that 'the need to secure permission prior to the use of any creative work is the main barrier for sharing and collaborating among individual creators'61 and it is this hurdle that CC licences seek to remove, by providing a simple licensing system that allows creators to specify exactly what uses of their work are acceptable, and make them available to the world at large.

Monopoly Control of Copyright Works

A final problem is the increasingly centralised nature of copyright ownership. As Lessig explains, while copyright originally gave a small monopoly to many people (each individual creator), today copyright ownership is, for the most part, held by a very few large corporations.62 This has 'produced a world where no longer are there many people competing to produce and distribute culture'.63 While creators can rely on licensing regimes to enable their work to be published and distributed by an intermediary without losing ownership, very often they are required to assign copyright ownership over completely if they want to work with these large intermediaries. Coupled with this loss of ownership, is the fact that today 'the vast majority of creators do not earn their income from the sale and distribution of their creative output. Rather they earn their income from the fame and publicity related with this distribution'.64 This change has come about primarily because of the ease with which it is now possible to obtain copyright work illegally via the internet. But it is only for the former (sale and distribution) that strong copyright protection is necessary. In fact, for the latter (fame and publicity) weak copyright protection may actually be beneficial as more people will be exposed to the creator's work. Further, the internet opens up the huge direct marketing possibilities for the individual creator, meaning they can avoid passing control of their work to intermediaries.65 Thus, from the point of view of an individual creator, the arguments for retaining strong copyright protection are increasingly no longer valid.

IV. THE CREATIVE COMMONS LICENCING SYSTEM

The concerns described above, combined with the factors tending towards fewer restrictions on copyright works in the digital era, have led many people to believe that the current copyright system has 'too many IP rights: they are too strong, [and that] 'something' has to be done'.66 Into this environment have stepped private initiatives such as Creative Commons that seek to ameliorate copyright excesses by providing creators with more flexible ways to govern how their work is used. In the long run they aim to wrestle back control of creative output from large corporations and change mindsets about what is a desirable level of copyright protection. Overseas the uptake of CC licences since the movement's inception has been high.67 No New Zealand statistics are available, but given that jurisdiction specific licences have not been available here until very recently, awareness of Creative Commons will be lower, although this is likely to change in the future.68

Origins

The ideas behind Creative Commons are not new. Their origins can be found in the open source software movement which began in the 1980s. Software development is often collaborative, because generally better systems will be produced this way than when individuals work in isolation.69 Further, while many collaborative software projects are not profit oriented, even when profit is a motivation, collaboration makes potentially profitable products better, or can provide spin-off commercial benefits in other ways.70 By making source code 'open' and forgoing property rights upstream, it is possible 'to reduce downstream transaction costs'.71 The attractiveness of open access in the software development world led to the development of several licence systems, the most prominent of which was the GNU General Public Licence (GPL), a 'modified public domain software licence', designed by Richard Stallman, and implemented by the Free Software Foundation (FSF).72

There are significant differences, however, between Creative Commons and the FSF licences. The open source movement is based on four principles: 'the freedom to distribute copies of free software (and charge for them if you wish)', open access to source code, the freedom to modify or reuse pieces of the code, and the certainty 'that you know you can do these things'.73 Importantly too, users of works licenced under the GPL must, in turn, pass on the same freedoms that they received to others who wish to use their work, a requirement known as 'copyleft'.74 Creative Commons does not have a set of guiding ideological principles. Instead it aims to be flexible enough for everyone. Thus, in the Creative Commons system the copyleft provision is only optional, and individual creators chose the extent of public access to their work. Also, CC licences are less specialised meaning their appeal is likely to be much wider than that of the GPL.75 However, CC licences are still designed with digital content in mind and, like the FSF licences, are less suited for use with works not produced in digital format. Nevertheless, today many traditional literary type works are distributed online, so Creative Commons' audience is likely to continue to grow.

Theoretical Basis

The theory behind Creative Commons is very different to that of standard licencing practices. Standard copyright licencing is primarily on a 'one-to-one' basis and, if the circumstances of the use change, the conditions of the licence will need to be renegotiated. Further, most standard copyright licences are negotiated through intermediaries. The idea of a commons of creative works is that of a 'one-to-many' relationship, where creators can directly communicate their intentions to potential users and need only do this once. The idea has roots in the concept of the public domain, where creative works end up when copyright has expired, and where once in the U.S. all copyright works ended up unless they were labeled as subject to copyright.76 Works in the public domain are held in common by all of society, and are free for all to use as they wish.

The idea of a 'commons' is very old and is taken from land law. According to Cahir, a commons '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 resource'.77 Traditionally, for material goods, this has been problematic as overuse by some people negatively affects the ability of others to use the resource (the 'tragedy of the commons'). However, as Cahir explains, 'ideational resources, on the other hand, are abstract objects (ie, non-concrete) and are not susceptible to overcrowding or wastage. They are non-rival and can be simultaneously consumed and used by a potentially infinite number of people'.78 Arguably, creative works are such ideational resources. However, under our current copyright systems even the most banal work is covered by copyright, and is hence an object of private property, albeit for a limited period of time and with certain exceptions. According to some commentators, this has resulted in a 'tragedy of the anticommons', 'a situation where multiple owners each have a right to exclude others from a scarce resource, and no-one has effective privilege of use'.79

It is recognised by those who criticise conventional copyright that it would be inequitable, not to mention economically inefficient, for all works to go directly into the public domain. However, the underlying rationale behind Creative Commons, and other similar licensing systems, is that many creative works are suitable for placement in a 'semicommons'. Lessig argues that Creative Commons is a way for people to 'take voluntary action by marking their content with a tag that expresses a kind of freedom ... to restore reasonableness into the system'.80 It is argued that an information semicommons is good for innovation and creativity, as it seeks to restore a fair balance between the rights of copyright owners and the public right of dissemination, by allowing for more public access, without requiring creators to forego all rights to their works.81


How Creative Commons Licences Work

There are several different types of CC licence. Each licence contains several 'baseline rights': copyright is retained, fair use (or fair dealing in New Zealand) is not affected, permission must be requested for a use not covered by the licence, and the licence terms cannot be altered, or technology used to restrict lawful access to the work.82 The licences allow users to copy, distribute, display or perform the work, or to shift it into another format, provided all licence conditions are met.83 Licences last for the duration of copyright protection on the work, and are expressed as irrevocable, except automatically in case of breach of the terms of the licence.

In designing the CC licences four basic limitations that creators may wish to place on their works were identified:84

• Attribution - the creator must be acknowledged as such by users of the work under the licence.

• Share Alike - users of the work must licence his or her new creation under the same terms as the original licence.

• No Derivatives - derivative works (or adaptations) are not permitted to be created from the work.

• Non-commercial - commercial uses of the work are not permitted.

All licences carry at least the attribution requirement, and there are six basic licence types made up of various combinations of the other limitations. These licences will cover most literary, artistic and musical works:85

• Attribution

• Attribution ShareAlike

• Attribution No Derivatives

• Attribution Non-commercial

• Attribution Non-commercial ShareAlike

• Attribution Non-commercial No Derivatives.

Every licence contains three elements:

• The Legal Code, which is intended to ensure enforceability under copyright legislation. CC licences are designed to work alongside copyright legislation, and, in fact, rely on copyright for enforcement.

• The Commons Deed (human readable code), which is in plain English. This is important for Creative Commons to meet its objective of being simple and easy for individual creators to use. This would not be the case if the licences only contained complex legal jargon.

• The metadata (computer readable code), which attaches to the work when it is distributed electronically. The metadata allows for searches for licenced work through engines such as Google.

An easily recognisable symbolic representation of each licence type is also provided, so that it can be quickly identified by potential users.

CC licences are progressively revised so that over time any problems that arise can be dealt with.86 Creative Commons International is a project to develop jurisdiction specific licences, while maintaining a common core across all the different licences. The New Zealand CC licences are based on the England and Wales version of the licences,87 and contain some differences from the U.S ones. For instance, U.S. law refers to 'derivative works', whilst the equivalent term in the New Zealand Copyright Act is 'adaptation'.88 For the most part, however, these differences do not substantively change the effect of the licence, and simply reflect the different terminology used in New Zealand copyright law.

IV. LEGAL EFFECT OF CREATIVE COMMONS LICENCES

To date, CC licences have not received significant court attention in any jurisdiction,89 and their legal status is not entirely clear.90 Of course, this lack of case law need not necessarily be viewed negatively. In fact, it may be seen as an indication that the Creative Commons system is working well. Nevertheless, it is likely that the New Zealand courts will have to consider the legal effect of the licences at some point. It is important that potential licensors are confident that, if a problem arises, their licence is enforceable, for instance, in a situation where a licensee has breached the terms of the licence or dealt with the licenced material in a way not authorised by the licence. Licensees, too, must be confident that the rights they are granted cannot be unilaterally revoked at any time. Several matters must be considered in order to assess the legal status of the CC licences in the New Zealand context. Firstly, it will be necessary to consider whether Creative Commons is a licencing scheme under the Copyright Act. There has been some debate in the U.S. about whether CC licences are indeed licences or whether they amount to contracts, and this will be addressed with respect to New Zealand law. From here the enforceability of CC licences can be considered as well as the status of third parties with respect to the licences.

Is Creative Commons a Licencing Scheme Under the Copyright Act 1994?

Part 8 of the Copyright Act provides statutory recognition to licencing schemes. Such schemes centralise the licensing process. If Creative Commons was found to be a licencing scheme there would be some advantages. For instance, it may provide a way for Creative Commons, as an independent scheme, to come under the protective umbrella of the Copyright Act.91 However, the application of pt 8 to Creative Commons is unclear. Under the Copyright Act a licencing body must either own the copyright or act as agent for the copyright owner in negotiating copyright licences.92 A licencing scheme is defined as a scheme that sets out 'the classes of cases in which the operator of the scheme, or the person on whose behalf the operator acts, is willing to grant copyright licences … and the terms on which copyright licences would be granted in those classes of cases'.93 Creative Commons neither owns the material nor negotiates licences as agent for a creator. CC licences are brought into existence by the creators themselves, who individually choose what terms of use they wish to place on their work. Creative Commons' role is limited to providing a standardised set of templates that creators can use. Therefore, it seems unlikely that Creative Commons would be considered a licencing scheme. Further, it is probably against that very purpose of the Creative Commons system for it to be considered such a scheme. Its key goal is to remove intermediaries from the process and put control into the hands of creators. For this reason, its licences make it very clear that Creative Commons is not in any way legally involved in this process.94 Licencing schemes are the antithesis of this purpose. Accordingly, it is unlikely that Creative Commons, even if it met the requirements to be a licencing scheme, would be desirous of being treated as such.

Are Creative Commons Licences 'Licences' or Contracts?

The next question that must be addressed is whether CC licences are, in fact, licences at all, or whether they actually amount to contracts. There are two main types of licences: gratuitous (or bare) licences, in return for which the licensor gets nothing at all, and licences for value, where the licensee provides consideration for the permission given.95 This is the key distinction between a licence and a contract — 'a licence is the grant of a right … whereas a contract is the assumption of an obligation'.96 In general, a bare licence does not confer proprietary rights, but only 'makes an action lawful, which without it had been unlawful'.97 Because a licensee does not have a proprietary interest he or she generally cannot sue for infringement.98 A copyright licence is defined in the Copyright Act as 'a licence to do, or authorise the doing of, any restricted act' (everything a copyright owner would normally have exclusive right to).99 In most cases copyright licences are given on a one-to-one basis. However, there have been cases where licences have been granted as a general consent to the world at large.100 CC licences are expressed as being between the licensor and each individual who uses the work subject to the licence. But, the licensor need only advertise the licence terms - acceptance by the licensee is automatic on use of the licenced work.101 It is likely that CC licences will be treated as bare licences by our courts, because the licensor gives permission but the licensee does not undertake any corresponding obligations.

However, in the U.S. it has been suggested that CC licences might amount to contractual licences.102 Such an analysis is probably incorrect. A contractual licence requires offer, acceptance and consideration.103 In terms of offer and acceptance, an offer is clearly made when the creator makes a work available under a CC licence.104 The New Zealand CC licences, following the U.S. version, state that 'by exercising any rights in the work provided here, you accept and agree to be bound by the terms of this licence',105 and so acceptance is likely to be manifested through use of the licenced work.106 However, in terms of consideration, while most traditional copyright licences involve payment in return for the grant of a licence to use a work in a particular way, CC licences are very different, making consideration hard to identify. There are two main ways of conceptualising consideration. The benefit/detriment approach refers to the exchange of benefits between the parties and the corresponding detriment suffered,107 but, as Burrows suggests, it is probably preferable to think in terms of a bargain with consideration the price paid for the promise.108 Importantly, the courts do not assess the adequacy of any consideration given. Assuming consideration is present, the value of the price paid is irrelevant.

In the case of a CC licence, the licensor provides consideration by permitting use of his or her work in a way that would not otherwise be permitted under the Copyright Act.109 However, it is more difficult to identify the consideration provided in return by the licensee. CC licences state that 'the licensor grants you the rights contained here in consideration of your acceptance of such terms and conditions',110 which implies that consideration is provided by adherence to the terms of the licence. However, as Loren explains, this acceptance is really only a 'promise not to engage in actions that are [already] otherwise prohibited by law'.111 Accordingly, agreeing not to do them is of no value. Nevertheless, Loren argues that the licensee's behaviour in adhering to the licence is of benefit to the licensor.112 However, this analysis is not entirely satisfactory. In New Zealand law, consideration that involves a promise not to do something one otherwise would be legally entitled to do is valid.113 However, a condition that must be fulfilled before the transaction can be completed is not. In the latter case the transaction is, instead, a conditional gift.114 CC licences do not involve the licensee forbearing from doing anything that they would otherwise be entitled to do. In fact, it is quite the opposite, they are instead given more freedom than the law provides. Further, the licensee's promises may best be viewed as conditions that must be fulfilled before the promise will take effect. As mentioned above, CC licences state that acceptance of licence terms comes from exercising any rights provided by the licence and the licence terminates automatically on breach. Accordingly, the status of the licence may be more like a conditional gift, rather than a contract.115

However, it may be possible to approach the consideration question by looking more broadly. One of the reasons why someone might licence their work under a CC licence is to make it easier for others to disseminate the work, without fearing copyright infringement. Arguably, the licensee benefits the licensor by providing publicity and wider dissemination of their work and ideas. This broader view of consideration is especially pertinent in relation to ShareAlike CC licences. Potentially, in these cases, the licensee, in agreeing to the terms of the licence, provides consideration by ensuring that the work in question continues to be available for others to build upon, with the assumption that the resulting products are better than any individual could have produced in isolation. However, it is difficult to see how consideration provided in the form of further exposure of the author's work or by expanding the creative pool is any different from a conditional gift. Consider the case when someone promises to give someone else a car, for instance. There is a benefit to the giver in that the car is off their hands, yet this benefit would most definitely not be considered valid consideration.116

Ultimately, identifying consideration in the case of CC licences seems to be a case of trying to fit a square peg into a round hole. It really is much simpler to view the licences as bare licences, for which consideration is unnecessary. Further, this accords with what is expressed in the Copyright Act. While many copyright licences are brought into existence by a contract (regulating payment, for instance), this is not a necessary requirement. The Copyright Act simply defines copyright licences in terms of granting authorisation to do a restricted act. This is exactly what CC licences do and there seems no reason why they must be contractual, except for one difficulty - the problem of revocability.

Bare Licences and Revocation

Bare licences are problematic in one significant respect: revocation. CC licences are expressed as irrevocable, only terminating on breach of licence terms or when the copyright in a work expires.117 This provision is unproblematic if the licences are contractual as contractual licences are only revocable in accordance with the licence terms.118 However, bare licences are generally revocable at will by the licensor and create a personal interest, not a proprietary one, meaning the licensee cannot sue if the licence is revoked.119 The consequence of this is that licensors who change their minds, for instance on discovery that their CC licenced work has commercial value, may be able to revoke the licence. Of course, if a CC licence is terminated, this will not make pre-revocation use of the work copyright infringement but only conduct that happens after revocation.120 Nevertheless, this still may be problematic for licensees. While revocation of a bare licence must be communicated to be effective,121 a licensee may still have relied on the fact that the work would continue to be available. From a licensee's perspective this potential revocability causes significant uncertainty.122

Loren suggests that, even if the irrevocability provision found in CC licences is not binding, it is likely that, in many cases, a user of a Creative Commons licence will be able to make an estoppel argument, based on reliance on the terms of the licence to his or her detriment.123 The equitable doctrine of promissory estoppel was developed to protect parties to a contract that was unenforceable due to a lack of consideration.124 Initially, it was limited to parties who had a prior contractual relationship. However, in recent times the courts have indicated that it may have a wider application, although there must still be some sort of prior legal relationship.125 Further, today the doctrine can be used as a cause of action, and not merely as a defence.126 The doctrine has four elements: 'a legal relationship giving rise to rights and duties between the parties; a promise or a representation by one party that he will not enforce against the other strict legal rights arising out of that relationship'; an intention that the representation will be relied on, and actual reliance.127 Essentially, as Tipping J has noted, 'the broad rationale of estoppel ... is to prevent a party from going back on his word (whether express or implied) when it would be unconscionable to do so'.128 In the case of CC licences, there is a promise by the licensor (not to revoke the licence) that will be relied upon by licence users. Further, the Copyright Act provides 'that a licence granted in respect of any copyright is binding on every successor in title to the copyright owner except a purchaser in good faith for valuable consideration without notice (actual or constructive) of the licence'.129 This provision indicates that the interest created by a CC licence is likely to amount to a sufficient property interest for the application of doctrine of promissory estoppel. In this way, therefore, the irrevocability provision in CC licences will most probably be enforceable and uncertainty for licensees avoided.

Abandonment of Copyright

Another way to look at CC licences is to step away from the licence/contract distinction entirely. Instead, it may be possible to view CC licences as a limited abandonment of copyright, which is likely to be considered irrevocable by the courts.130 At common law 'a copyright owner [can] abandon

[his copyright] by some overt act which manifests his purpose to surrender his rights in the "work" and to allow the public to copy it'.131 In New Zealand there has been little attention given to abandonment of copyright. In the High Court in Plix Products Ltd v Frank M Winstone (Merchants) Ltd,132 Prichard J referred to Copinger and Skone James on Copyright, which notes 'it has been said that an author may by his conduct, or by his express desire, abandon his copyright, and give to the public a right to publish his work before the time when his copyright would expire'.133 According to Copinger, failure by a copyright owner to exploit their rights would certainly not be enough for abandonment.134 CC licensors clearly manifest an intention to abandon certain rights granted to them under the Copyright Act. For this reason, in the U.S. it has been suggested that it may be conceptually more straightforward for CC licences not to be treated as licences at all, but, instead, as expressing an intention to abandon copyright protection to the extent provided for in the licence. That is to say, CC licences can be viewed as stating 'I am not going to enforce rights A, B and C' rather than 'I licence you to do A, B and C'.135 The attraction of abandonment of copyright is clear in the U.S. where there is a debate about whether CC licences are licences or contracts. But, given that they are very likely to be viewed as licences here and that revocability problems can be overcome, there is less to gain from this approach in New Zealand.

Enforcement of Creative Commons Licences

What can a licensor do if a licensee breaches a CC licence? In the U.S., in answering this question the licence/contract issue has been important because it affects whether a breach of contract or a copyright infringement action can be launched. However, in New Zealand the distinction is less important because it will affect neither the court that can hear the case, nor the remedies and limitation periods available.136 Further, from the above discussion it seems unlikely that CC licences are contractual. Therefore, for New Zealand licensors, a copyright infringement action must be the remedy when a licence is breached. Loren correctly argues that there will be a copyright infringement when the licence is breached by doing something outside the terms of the licence, such as using the work for commercial purposes when the licence is a Non-commercial CC licence. Because 'these activities are wholly outside of the terms of the Creative Commons licence' they infringe the rights that the copyright owner still holds under the Copyright Act.137

What about when a licensee breaches the licence in a way which involves 'a use within the rights expressly granted by the relevant CC licence but a failure to comply with the conditions placed on such use'?138 In these circumstances the licence will automatically terminate. Therefore, the licensee will be using the work without permission from the copyright owner which is a copyright infringement.139 Could a licensee ever deny the validity of the licence? In most cases when a licensee breaches a licence there will be practical difficulties if they attempt to deny its validity. For instance, if they wanted to claim that their use was within licence terms, it would obviously be pointless to make such an argument.140 However, it may be possible when their behaviour would otherwise be legal (under fair dealing, for instance) but was not within the terms of the licence. It is difficult to imagine such a scenario, however, and it is probably unlikely to occur.

Status of Third Parties

A final question is whether third parties are bound by the terms of a CC licence. Gonzalez suggests a scenario where this may become an issue: A creates a work, licenced under a GPL licence (it could equally be a CC licence for the purposes of this discussion) to B, who breaches the licence when he or she distributes it to C, who is unaware of the original licence terms.141 This could occur when someone distributes a CC licenced work without attribution, meaning a third party is unaware of the original licence provisions. The question is whether A can sue C for copyright infringement and Gonzalez suggests the answer is yes, as 'as copyright is less preoccupied with who licensed the software to C, but the emphasis would be whether or not C is committing actions that would be considered as infringing A's copyright'.142

In New Zealand this question is likely to be answered by looking at the common law doctrine of nemo dat quod non habet (he or she who hath not cannot give).143 According to this principle, in a situation where someone fraudulently passes on an interest that he or she does not actually own, the transaction is invalid. The doctrine has largely been supplanted by statute in the areas of land law and sale of goods law where it originated, with protections put in place for those who receive title as a bona fide purchaser for value.144 A similar provision is found in s 111 of the Copyright Act which provides that a copyright licence is binding on successors in title to the copyright owner. However, the status of third parties who use the licenced work is not addressed. This means that a third party will not be protected from a copyright infringement action by the copyright owner. Were one to arise, their only recourse would be against the person who fraudulently passed on the interest, which seems rather unsatisfactory. However, this situation is unlikely to occur in reality. Any material obtained by a third party will almost always be available directly from the original licensor. In the digital environment it is not difficult to ensure that work is obtained from its original source. The one area where there may be more risk is when derivative works are created and incorrectly licenced. Third parties need to be aware that in these cases it would be wise to check the licencing conditions of the original work.145

VI. IS CREATIVE COMMONS Likely to be a Useful Development in New Zealand?

Some overseas commentators have suggested that Creative Commons may, in fact, not be the powerful new mechanism for managing rights over created works that its creator Lawrence Lessig believes it to be. For this reason, having established that there are problems with modern copyright law in the digital era negatively affecting copyright creators and users in New Zealand, and that CC licences are likely to be legally enforceable here, it is important to critically consider whether Creative Commons is actually a useful and necessary development for New Zealand's copyright framework.

There are six major areas of concern for the Creative Commons system that will be addressed from a New Zealand perspective:

• the ability of Creative Commons to achieve change;

• the ideological goals (or lack of) held by Creative Commons;

• the value of the information semicommons formed by CC licences;

• the user, as compared to creator, focus;

• implementation issues; and

• whether Creative Commons is actually the best way to effect copyright change in New Zealand.

The Ability of Creative Commons to Achieve Change

A significant problem with Creative Commons is how, accepting that copyright law does need fixing in some way, Creative Commons will do this. One of Lessig's examples illustrates this point well. Lessig criticises the copyright protection of Sony's mechanical dog, which is protected with TPMs so that users cannot program it themselves. However, Harrison notes that, from Sony's point of view, this makes perfect sense. Without this protection there would be no incentive for Sony to invest any further in development of the technology, because there would be little chance of a commercial return.146 More importantly, even accepting that people should be allowed to mess with the copyrighted technology, the Creative Commons system or any other voluntary licencing regime is not going to affect Sony's decision to use TPMs to protect their product. The problem is that the Creative Commons system relies on a voluntary decision by a creator to CC licence their work. It is hard to believe that there would ever be an incentive for a large commercial entity such as Sony to do so.

Essentially, it is unclear how Creative Commons will reduce problems such as the duration of copyright protection, monopoly control and the widespread use of TPMs because those with a commercial interest in copyright protection are unlikely to voluntarily submit to the Creative Commons system. For this reason, Geoff McLay, in a report about copyright and the New Zealand Digital Content Strategy, raises concerns about Creative Commons' ability to solve the perceived problem of too much copyright protection. He comments 'it is doubtful … that in fact the licences will themselves necessarily protect creative people's interest, and the licence simply cannot do anything about the problem of overreach of copyright on the vast amount of material that will not be subject to the system'.147 To be fair, however, Lessig may be envisioning Creative Commons as only part of the solution and a part that will not create change immediately, or alone. Instead, it may go some way towards changing mindsets towards copyright, particularly at a ground roots level, eventually leading to more general reform. In the long term, the argument is that perceptions may be changed relating to copyright and society may embrace a more user friendly view.

Ideological Goals (or Lack of) Held by Creative Commons

However, Creative Commons may struggle as a movement for change because it lacks a clear ideological viewpoint. Firstly, as Dusollier explains, while 'Creative Commons seeks to cure a symbolic failure of the present copyright regime,' its message is confused because it seeks to do so while simultaneously working within, and relying for enforcement on, the current regime.148 Gonzalez, in the context of a discussion about GPL licences (although the same applies to CC licences), comments that 'this certainly creates an interesting relationship between the predominant nature of copyright, which is directed towards the protection and regulation of ownership, and a system that seems to advocate the exact opposite. The irony that such a contrary system requires copyright to survive cannot possibly be lost'.149 There is a tension here which is not easily resolved. Lessig both denounces the modern system, whereby private ordering (by way of restrictive licencing practice and TPMs) 'has displaced the power of copyright'150 and at the same time puts forward a system of private ordering (by way of voluntary licensing) as a solution. Like the restrictive copyright practices Lessig criticises, Creative Commons relies on private agreements. In fact, it may that 'by using contract [or licence] provisions to enforce the will of the author, Creative Commons is doing exactly what it denounces in copyright'.151 Significantly, as Elkin-Koren notes, while copyright law is identified as the problem, 'Creative Commons' vision of what [will] happen when copyright law is removed is less coherent'.152 This 'ideological fuzziness', she argues, may limit Creative Commons' effectiveness as a proactive organisation.153

These criticisms are not entirely valid. The way in which Creative Commons uses licences is quite different in nature to the way they are used by other private actors in protecting copyright ownership. Most copyright licences modify and restrict the rules found in the Copyright Act.154 CC licences do precisely the opposite. They allow users to do acts that would normally be a breach of copyright under the Copyright Act, such as copying and distributing the work. Thus, the licences do circumvent copyright in a sense, but in quite a different way to traditional copyright licences.155 The point is that not all copyright licences are equal. For this reason, Sims argues that licences designed to enhance public access should be judged differently from restrictive licences.156 Unlike modern restrictive copyright licences, CC licences are not 'contrary to law or fundamental public norms',157 and for this reason, it is not unreasonable to view CC licences as a useful tool to work in tandem with copyright law.

More problematic is the lack of clarity about what exactly Creative Commons intends to achieve.158 While the open source movement was founded on ensuring four clear freedoms,159 CC licences are more flexible, and seek to be almost anything to anybody. Creative Commons allows users to make their own decisions about the level of protection on their work and no real guidance is provided as to what might be best. In some respects this is an advantage, as it expands the potential usage possibilities. However, there is also the risk that the message will become diluted, potential licensors and licensees will become confused and the system will not be as effective as it could have been. One of the key goals of Creative Commons is to provide creators with a simple and clear alternative to conventional copyright protection and there is a real risk that this will not be the case if Creative Commons tries to do to much too soon.

The Information Semicommons Created by Creative Commons Licences

This criticism concerns the value of the information semicommons created by CC licences. Harrison suggests that to have any real effect, the works added to the commons must be those with high market value, for, 'presumably access to works [that are currently protected but have little value] can be had [already] for a relativity reasonable price'.160 However, because in a commons situation no-one has the right to exclude others from use, the works put into the commons are generally those of limited value. Harrison points out that encouraging people to place higher value works into the Creative Commons may well led to more use of these works, but it may not lead to higher quality uses.161 Essentially, Harrison disputes the theory that an information semicommons leads to more creativity and innovation. However, this viewpoint perhaps reflects a limited understanding of the concept of 'value'. Breyer has suggested that, even without copyright incentives, much valuable work would still be created.162 Many works may not have much value in a commercial sense, but they are valuable to a particular group of people, and particularly so when individual contributions are pooled together.

Further, the individual creator's motive and goals may not be directed towards commercial exploitation, whether or not their work is commercially valuable. One could envisage an academic producing a piece of scholarly work from which, realistically, revenue is likely to be very small and outweighed by the benefits from encouraging wide distribution of the work. Of course, permission could be granted to anyone who asks to use the work, but this is time-consuming. CC licenses allow the original creator to stamp the work with a clear permission, removing the need for this to be sought on a case-by-case basis. Another problem that often arises is that potential users of works may not be able to contact the creator, even if they are willing to pay a reasonable price, so that it is practically impossible to gain permission to use the work in question. In these circumstances, if the creator had licenced the work under a CC licence, it will still be available for use.163

While it may be the case that an information semicommons is good for the individual, this still leaves the question as to whether it will have a negative impact on the willingness of intermediaries, such as publishing companies, to invest. In this respect, Lessig's argument that placing more works into a semicommons will enhance innovation and creation is not necessarily correct. Here, Harrison puts it well when he notes that 'it's just not that simple'.164 He suggests that the examples used by Lessig to make his point are more complex than portrayed. For instance, a book no longer under copyright, whose access is restricted when using the Adobe Reader, is likely to be still available from a library, traditional bookshop or from a public domain alternative to commercial e-books, such as Project Gutenberg.165 Further, looking to the future where books may only be produced electronically, it is possible that those produced solely in the proprietary E-Book form would not have been published at all were it not for Adobe's investment.166 Moreover, if anyone can access a work for free, there is little incentive for publishers to invest in the work. While it may be possible for creators to publish their work themselves using a non-proprietary electronic repository, this would involve foregoing a commercial return as well as other advantages that come with publishing commercially, such as extensive marketing resources. This, in turn, makes it difficult for those who make a living from creating works to do this.167

This being said, Creative Commons may be able to subvert traditional copyright power, by 'empowering the individual creator to exercise their rights and control,' so that decisions about what is to be created are made by creators, rather than be driven by the content industry.168 Creative Commons may free creators from intermediaries such as publishers, a relationship that is often exploitative and involves the author giving up rights.169 This, in combination with the internet and digitalisation technologies, may lead to 'a metamorphosis of artists' rights'.170 For creators who never intend to be remunerated for their work this is very positive. But, for those who do seek commercial gain, it may be less so. It has been suggested that Creative Commons could lead to a situation whereby society puts less commercial value on creator's endeavours because people become accustomed to works being available free of charge.171 Further, there is the risk that publishers will not take on a work already under a CC licence, as the licence lessens the scope for them to exploit the work. In some areas this may not be problematic, for instance music, film and theatre where there is an opportunity to make money from performance of the work, as opposed to just distribution, but in other areas the value of the copyright in the work may be lost.

It should also be borne in mind that, even in a world where copyright is more limited, intermediaries may still prove necessary. The cost of making other people aware of the existence of a creative work (by promotion and advertising) may still be prohibitive for the individual.172 Further, intermediaries do have other useful functions. In the academic sphere, for example, there are benefits in having a publishing company collect articles into journal form only available to subscribers. These include quality control, and archival into databases. These things take time and money, which must come from somewhere. Carroll suggests, however, that there may be ways to do this within the Creative Commons framework. He presents an optimistic picture, whereby CC licences facilitate profit driven business models, which more fairly allocate revenue between creator and distributor.173 He recognises that intermediaries will always be necessary in some circumstances to facilitate effective distribution, but believes that Creative Commons can be a positive force in readjusting the balance of power between individual authors and the distribution chain.

User Focus v Creator Focus

Another problem Creative Commons may face relates to its emphasis on the rights of the user. In comparison, Dusollier notes that copyright, at its most basic level, is about allowing creators control over what happens to their work.174 Creators have a right to reap some reward from the time and effort they put into creating a copyright work if they so choose, and this should not be forgotten when authors are encouraged to use CC licences.175 Here the distinction between software, which has been licenced under GPL licences for many years, and more traditional artistic, musical and literary works is important. In the former, collaboration is clearly seen as positive and helpful by the creators. A combined effort leads to a better work that benefits everyone. But in the latter, while building upon the works of others is important, collaboration is less common, and it is users of material, rather the original creators who may be most eager for the types of freedoms allowed for by CC licences.176 Creative Commons, in expanding the reach of semicommons licencing, may, in fact, push the copyright balance too far in the other direction. Dusollier notes that Creative Commons 'only address[es] one side of the dialogue: that of the public opportunity transformed into consumers'.177 This means that individual creators, particularly if the implications of having a CC licence are unclear, may decide not to bother, and fall back on the unequivocal protections provided by the Copyright Act. Creators actually have to make an active decision to change the status quo by using CC licences and many may not see the benefit in doing this.

Implementation Issues

Licence Proliferation and Incompatibility

Licence proliferation and the related issue of licence incompatibility are very real concerns. Not only are there a wide range of different licensing systems apart from Creative Commons, there are also numerous different types of CC licences, with more under development. Katz notes that this may lead to user confusion.178 Given Creative Commons aims to decrease information costs for creators, this is not ideal. Uncertainty and confusion among users will almost certainly lead to higher transaction costs, as expert consultation will be needed before it is possible to decide which licence to use. Ultimately, some people may decide the risks of using CC licences are too high, which may limit licence uptake. Creators who already licence their work for a fee or use a collecting society to licence their work will also need to be careful, and seek legal advice, as these may preclude CC licencing.179

These concerns have been expressed in New Zealand. For instance, submitters on the Draft New Zealand Digital Content Strategy had mixed feeling about Creative Commons, and suggested that Creative Commons may simply be adding another layer of bureaucracy.180 Concern was also raised about a lack of public understanding and the possibility of making copyright law more rather than less complex by encouraging use of the licences. The Digital Content Strategy itself, released in September 2007, reiterated these concerns, noting that:

there is some evidence that the effectiveness of [CC] licences is limited by creators' and users' understanding of copyright law. Creators may end up being unsure about what rights they hold under they law, and what rights for use they are actually licensing under CreativeCommons.181

While CC licences seek to be simple and easy to understand, with 'human readable code' alongside the legal jargon, the reality may well be that copyright licensing, in any form, is an inherently complex area of law. To imply otherwise by using simplified explanations of the legal effect, leads to the risk that copyright owners might 'unintentionally and inadvertently [grant] away rights to non — creative users'.182

A related problem is incompatibility, both between different CC licences and between Creative Commons and other licensing systems. Katz explains that this can lead to works becoming isolated and unusable.183 This is the antithesis of the Creative Commons vision, which seeks to reduce the number of orphan works, not increase them. More generally, as Katz points out, derivative works (or adaptive in New Zealand law) are 'inherently synthetic ... resulting from the combination of one or more works', some of which may have incompatible licences.184 One good example of this problem already exists - Wikitravel articles are licenced under CC licences, while Wikipedia is licenced under a GPL licence. GPL licences require that subsequent users licence derivative works in turn under the same licence as the original. This has created the somewhat absurd situation whereby Wikipedia articles cannot be used in Wikitravel, although the reverse is possible.185

A similar issue arises when trying to combine works under a ShareAlike CC licence with work not under this licence. This is not problematic in itself. However, works created by combining a ShareAlike CC licenced work and another work must themselves be licenced under a ShareAlike CC licence. This, Katz suggests, will lead to viral growth of the ShareAlike licences.186 This may cause some difficulties because certain types of ShareAlike licences are incompatible with others. For instance, an Attribution-ShareAlike licence and an Attribution-Non-commercial-ShareAlike licence are incompatible because the Attribution-ShareAlike licence prohibits additional terms being imposed, but the Attribution-Non-commercial-ShareAlike licence requires derivative works to be released under these same terms. This will lead to higher transaction costs as users may need to consult an expert to see if the incompatibilities are fatal. More importantly, it could ultimately mean that ShareAlike CC licences exert 'a disproportionate effect on the use of CC works', limiting user's freedom to choose other licence types. This, Katz argues, is a significant limitation on the ability of the Creative Commons to be as flexible as envisioned by its creators.187

Commercial/Non-commercial Distinction

Another area that may create implementation difficulties is the term in some CC licence prohibiting commercial use. Several commentators have suggested that the commercial/non-commercial distinction is too vague, and may cause problems.188 The New Zealand CC Non-commercial licence provides that the rights granted cannot be exercised in a manner 'primarily intended for or directed toward commercial advantage or private monetary compensation'.189 However, it is unclear what the exact boundaries of the term non-commercial are. The Association Litteraire et Artistique International (ALAI)190 asks, for instance, whether the term is 'synonymous with "non profit", or "with any government funded enterprise"'?191 For instance, as Dusollier notes, the question as to whether a publicly funded theatre would be considered non-commercial is not easy to answer. He envisions a situation whereby a playwright provides his work under a Non-commercial CC licence, so that it can be used by schools or amateur groups. A publicly funded professional theatre organisation also uses the work, arguing that they too are a non-commercial organisation. Accordingly, the playwright no longer receives monetary compensation from this organisation, where, in the past, it had been an important source of remuneration.192

This example is obviously very specific. Nevertheless, it does bring to light some issues surrounding the non-commercial provision and CC licences in general. At the boundaries it is difficult to define what is, and what is not, non-commercial and the term may include some groups to whom licensors had not intended to provide their work for free. Essentially, the problem is twofold. Firstly, licensors cannot choose with whom to licence; anyone who adheres to the terms of the licence can use the work. Secondly, licensors may not be aware exactly who will be able to meet the licence requirements.193 As with the problem of licence incompatibility, this may lead to higher transaction costs as individual creators are forced to seek guidance over the precise definition of the term.194 Further, it will be up to domestic courts to decide its scope, which could lead to differences between jurisdictions. Ultimately, using a Creative Commons non-commercial licence may be a risk that some people are willing to take. This is unproblematic if the risk is taken with eyes wide open. However, many people may not become be aware of potential issues until it is too late.195

The New Zealand Copyright Framework

The potential ineffectiveness of Creative Commons because of the concerns described above raises the question whether there may be better ways to resolve problems with conventional copyright law. For instance, Merges suggests that, given the problems faced by private licencing systems such as Creative Commons, a better solution may be to enact statutory notice provisions; legislation to allow copyright owners to abandon or waive certain elements of their copyright rights. These provisions would 'capture at least some of the attributes of GPL [or CC] type licences',196 and allow people to grant others greater freedom than the Copyright Act provides. Another way to reset the balance in New Zealand might be to extend fair dealing rights. This would allow users greater access to copyright works and, if drafted appropriately, could require that TPMs cannot be used to limit fair dealing. In this way, such provisions would go some distance towards ameliorating some of the copyright excesses of recent years. Such a change would also have the advantage of being effective against all copyright owners, unlike Creative Commons which is voluntary.197 A detailed analysis of the ability of such measures to resolve problems with conventional copyright is beyond the scope of this paper. However, they do serve as a reminder that Creative Commons is but one (and a particularly visible and attractively presented one) of several possible solutions.

Fundamentally, the question arises about the efficacy of private measures compared to statutory ones. In the long-run, as Merges rightly points out, statutory provisions are often preferable to private ordering systems such as Creative Commons because they create a property right good against the world and 'no private initiative will ever quite match the ability of statute to channel copyright owners into a uniform, widely understood standard practice'.198 Statutory changes provide clarity and certainty and, unlike CC licences, are designed with the New Zealand legal framework in mind. Further, the New Zealand copyright framework is arguably inherently more flexible than in the U.S. meaning legislative change is likely to be an easier and less complex matter here. For instance, the United States Code provides that a transfer of ownership includes an exclusive licence but not a non-exclusive one and does not contain any general provisions relating to non-exclusive licences equivalent to s 111 of the New Zealand Copyright Act.199 Arguably, therefore, the New Zealand copyright legislation already contemplates a more flexible ways of transferring rights. For this reason, enacting statutory notice provisions may not be such a drastic change as it would be in the U.S. Further, New Zealand is a small country with a centralised legislature and fewer large corporate pressure groups influencing the process, meaning that a statutory solution is likely to be quicker and easier to get through Parliament here. Having said this, the current review of the New Zealand Copyright Act does not include any reform of licencing mechanisms for the digital world. In fact, it is quite the opposite, mainly concerned with providing statutory protection to TPMs.200

There are some advantages to Creative Commons. Unlike legislative regimes, which are difficult to change in any sort of short timeframe, it can rapidly adapt to changing conditions. Further, its international scope means that even jurisdiction specific licences are, for the most part, standardised. If New Zealand was to undertake legislative changes, these may be inconsistent with international copyright regimes and obligations, and confusing for all involved (especially given that, in the digital era, many exchanges of copyright material are international in nature). In the long run, legislative changes may be forthcoming internationally, removing this difficulty. In the meantime, Creative Commons is useful as a template for those who want to consent to what would normally be a copyright infringement.

VII. CONCLUSION

Lessig believes that Creative Commons can be a way to 'fight extremism', change people's mindsets and, ultimately, shift the balance away from excessively strong copyright protection.201 For some creators, particularly those involved in collaborative projects, Creative Commons is a very welcome development. Certainly, many of the concerns about copyright in the digital era that have led to the development of Creative Commons in the U.S., are equally applicable in New Zealand. While, at this stage, duration is probably not a major concern here, both restrictive licencing practices (in terms of TPMs and because of the inappropriateness of traditional licencing mechanisms in the context of digital creation) and monopoly control most definitely are. Further, while Loren has suggested that there may be a potential disconnect between what a CC licence says and what the law permits,202 from the analysis of the licences in relation to New Zealand copyright law, it appears likely that they will be enforceable in our courts as bare licences granted under s 111 of the Copyright Act.

Notwithstanding this, there are problematic aspects to the Creative Commons project that may limit its effectiveness. Valid questions have been raised about whether Creative Commons will actually have any real effect on the problems its creators hope it will solve, because of its voluntary nature. Criticisms concerning the value of the semicommons created by CC licencing may not be justified insofar as they apply to a particular class of creators.

The history of collaborative work in digital mediums suggests that creators are willing to place valuable works into a semicommons because doing so benefits everyone. But, in terms of more traditional works, the value of the semicommons may be more limited. Most importantly, Creative Commons runs the risk of being too complex and incoherent because of a lack of a clear ideology. This may limit the uptake of licences and, ultimately, Creative Commons' ability to get across its message about more flexible copyright protection. Creative Commons is trying to do so much for so many different creators that there is a very real risk it will lead to as much incoherence and confusion as creators experience when confronted with the traditional copyright regime.

Having said this, the fact that Creative Commons does not have any one clear set of ideological commitments may, in fact, be a strength in that it is not restricted by a narrow purpose and can reach out to all sorts of different creators, who may themselves have very different interests and beliefs. Importantly, too, Creative Commons is not a static system. It has the ability to change and develop over time, and respond to problems that arise. For this reason, while perhaps limiting its effectiveness, the criticisms described above are not likely to be fatal to the Creative Commons movement. Nevertheless, for Creative Commons to be a useful tool for New Zealand creators, some issues need to be addressed. Thought should be given to exactly what Creative Commons' ideological principles are, and whether it intends to supplant copyright or merely to be a temporary measure. Implementation problems, a major source of user confusion, must also be addressed.203

It must be recognised, however, that, even if problems with the Creative Commons system can be resolved, this does not mean that, in the New Zealand context, Creative Commons is necessarily the best solution to the problems with conventional copyright. Particularly given the criticisms of Creative Commons mounted overseas, there may be good reasons not to promote Creative Commons in this country. It may not be desirable for New Zealand to head down the path of increased reliance on private ordering. Private systems such as Creative Commons are inevitably piecemeal and focused on one particular aspect of a problem. In Creative Commons' case this focus is on the rights of the user. An ongoing theme running through all the criticisms of Creative Commons is that the user is not the only person whose interests must be taken into account when considering the scope of copyright protection. In contrast, the legislative copyright system is relatively impartial and able to focus on the big picture. It is, therefore, more likely to reach a satisfactory balance between competing interests.

In the end, Professor Lessig's assertion that an excessively strong copyright system is not an appropriate framework in a digital world and that it is having a chilling effect on creation is probably correct. There is no doubt that Creative Commons will prove valuable to users of creative works, and also for certain groups of New Zealand creators. The licences are particularly suited to those who are already familiar and comfortable with using other permissive licences such as the copyleft GPL, and whose creative works are fundamentally digital and collaborative in nature, making them incompatible with traditional one-to-one licencing mechanisms. For other creators through, it may invite more problems than it solves and in terms of addressing the big problems faced by copyright today, Creative Commons falls short. For this reason, in the long run, a legislative solution is more desirable.

Nevertheless, Creative Commons does have a positive role to play in the development of awareness of the inadequacies of copyright in the modern digital era. This is particularly the case given that current copyright legislative changes in New Zealand tend towards increasing copyright protection rather than making it more flexible. Cheliotis et al, suggest that Creative Commons is likely to be most successful when it orients itself towards

reconciling the most extreme positions currently taken by proponents and opponents of the existing copyright framework ... and offer[ing] realistic solutions such as the voluntary use of its licences (in the short term) and perhaps [acting] as the catalyst for copyright law and policy reform (in thelonger term).

This statement accurately describes the role of Creative Commons in the New Zealand copyright sphere.204 Creative Commons may be successful in curing a symbolic failure of the present copyright regime',205 but it is to be hoped that, in doing so, it will ultimately encourage legislative changes that will make CC licences themselves no longer necessary.


[*] LLB(Hons), BA(Hons) (History and Philosophy of Science). Stephanie is currently working as a Judges’ Clerk at the Supreme Court for the Rt Hon Dame Sian Elias, Chief Justice of New Zealand. This paper was awarded the Centre for Commercial and Corporate Law Inc prize for excellence in legal writing for 2007.

[1] Copyright Act 1994, ss 40 -43. There are also several other exceptions allowing limited copying in certain circumstances: for educational purposes, for library and archival purposes, and for public administration purposes (see Part III below).

[2] See Copyright Act 1994, ss 29-34(primary infringement of copyright).

[3] Creative Commons is not designed for use in licencing computer software because there are already several adequate licencing systems that deal with this material, such as the GNU General Public Licence (GPL) – see Part IV below.

[4] The Open Educational Resource (OER) Commons promotes CC licencing course materials such as lecture notes - see OER Commons, About OER Commons, <http://www.oercommons.org/about.html> at November 2007. Another initiative, the Science Commons project is developing ways for the licences to be utilised in the publishing of scientific research data - see Science Commons, About Science Commons, <http://sciencecommons.org/about.html> at November 2007

[5] The public sector in New Zealand has expressed some interest in using the licences for these purposes too - see The National Library of New Zealand Creating a Digital New Zealand: The New Zealand Digital Strategy (Aug 2007) 12.

[6] Along with several other intellectual property and cyber experts, including James Boyle, Michael Carroll, Hal Abelson, Eric Saltzman and Eric Eldred — see Creative Commons, About Creative Commons <http://creativecommons.org/about/people/html> at November 2007 for more details.

[7] L Lessig, 'The Creative Commons (2004) 65(1) Montana Law Review 1, 11-12.

[8] Creative Commons, History, "Some Rights Reserved": Building a Layer of Reasonable Copyright <http://wiki.creativecommons.org/History.html> at August 2007.

[9] L Loren, 'Building a reliable semicommons of creative works: enforcement of Creative Commons licences and limited abandonment of copyright' (2007) 14 George Mason Law Review 271, 274

[10] For instance, the United Kingdom, Canada and Australia all have jurisdiction specific licences. Further, the 'generic licences are jurisdiction-agnostic' as far as possible, and thus useable by a creator from any jurisdiction when no alternative is available', Creative Commons International, International <http://creativecommons.org/worldwide.html> at September 2007.

[11] The Council for Humanities is a non-profit organisation that promotes awareness of the humanities in New Zealand. The National Library of New Zealand has also provided help and support.

[12] The New Zealand licences are modeled on the England and Wales versions of the licences: see Creative Commons International, New Zealand <http://creativecommons.org/international/ nz/html> at November 2007.

[13] K Garnett, G Davies and G Harbottle (eds) Copinger and Skone James on Copyright (15th ed, 2005) 27.

[14] A Sims, 'Copyright and Contract' (2007) 22 New Zealand Universities Law Review 469, 472.

[15] Ibid 472.

[16] Overall, Anglo-American copyright law gives greater weight to the social and economic rationales for copyright, compared to the European system which focuses more on the natural rights of the author, and thus tends towards stronger protection of these rights — K Garnett, G Davies and G Harbottle (eds), above n 13, 27.

[17] Ibid 26-27.

[18] See TRIPS Part 2, Standards Concerning the Availability, Scope and Use of Intellectual Property Rights, (1. Copyright) and the Berne Convention for the Protection of Literary and Artistic Works.

[19] See Part III below.

[20] See s 72 of the Copyright Act 1994. The Act also gives protection to several other types of work too, but these are not likely to be the subject Creative Commons licences.

[21] For example, see the fair dealing provisions in the Copyright Act 1994, ss 40-43.

[22] See Copyright Act 1994, ss 113 and 114.

[23] See Copyright Act 1994, s 113(2).

[24] See Copyright Act 1994, s 111.

[25] These schemes regulate a class of copyright works and the situations in which licences to use them will be granted. Licencing schemes also provide for remuneration for creators whose works are used under licence (see Copyright Act 1994, pt 8). Copyright Licencing New Zealand, for instance, deals with licences that 'allow copying of extracts from an international repertoire of published works without the need to obtain approval from individual copyright owners' Copyright Licencing New Zealand, Licence Schemes <http://www.copyright.co.nz.html> at November 2007. See Part V below for further details.

[26] See, for instance, YF Lim, 'Copyright in the Digital Age' (2003) New Zealand Law Journal 137.

[27] D Webber, 'Intellectual Property — Challenges for the Future' (2005) 27(10) European Intellectual Property Review 345, 346-347.

[28] Lessig, above n 7, 6.

[29] Lim, above n 26, 138.

[30] See D McGhee, 'Free and Open Source Software Licenses: Benefits, Risks, and Steps Toward Ensuring Compliance' (2007) 19(11) Intellectual Property & Technology Law Journal 5, 5.

[31] R Merges, 'A New Dynamism in the Public Domain' (2004) 71(1) The University of Chicago Law Review 183, 194.

[32] Wikitravel uses Creative Commons licences and Wikipedia is licenced under the GPL. Ironically, this has become problematic — see Section VI below.

[33] M Garlick, 'A Review of Creative Commons and Science Commons' (September/October 2005) Educase Review 78; see also Webber, above n 27, G Chellotis, W Chik and G Tayi, 'Taking Stock of the Creative Commons Experiment — Monitoring the Use of Creative Commons Licenses and Evaluating its Implications for the Future of Creative Commons and for Copyright Law' (Paper presented at 36th Research Conference on Communication, Information and Internet Policy (TPRC), George Mason University School of Law, Sept 28-30th) 33-34.

[34] See for instance, A Fitzgerald, Guest Speech, Creative Commons New Zealand Seminar, 27 Oct 2007 (available at <http://www.r2.co.nz/20071027/html> at November 2007, which discusses some of the ways in which the boundaries of copyright protection have been widened.

[35] S Frankel and G McLay, (2002) Intellectual Property in New Zealand 34.

[36] For instance, the United States requires conformity with U.S. copyright protection as a condition of Free Trade Agreements — see A Kingsbury, 'Term of protection' [2005] New Zealand Law Journal 339, 399.

[37] Under the Sonny Bono Copyright Term Extension Act 1998. See the United States Code 17 USC §302 (1998), (implements Sonny Bono Copyright Term Extension Act 1998).

[38] L Lessig, Free Culture, the Nature and Future of Creativity (2000) 134.

[39] W Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (2004) 42, 48.

[40] [1774] EngR 47; (1774) 2 Bro. PC 129.

[41] Cornish, above n 39, 49.

[42] United States Constitution, art I, s 8, cl 8.

[43] The New Zealand Copyright Act does not contain any reference to promoting a public/private balance. However, its origins are in the Statute of Anne, which referred to the 'encouragement of learning' - see M Fox, C Ciro and N Duncan, ‘Creative Commons: An Alternative, Web-based Copyright System' [2005] Entertainment Law Review 111, 112.

[44] Lessig, above n 38, 131.

[45] Fox, Ciro and Duncan, above n 43, 114.

[46] See Directive 93/98/EEC of 27 October 1993 — Kingsbury, above n 36.

[47] Ibid 339.

[48] Ibid.

[49] Ibid 340.

[50] For instance, the Ministry of Economic Development has produced a discussion document entitled The Commissioning Rule, Contracts and the Copyright Act 1994: A Discussion Paper, which discusses contracts which do things such as preventing purchasers from resale or giving the work away, through the use of TPMs: Part 3, [83].

[51] A Segkar, 'Is a general fair use defence required in the digital age?' (2005) 8(6) Internet Law Bulletin 77, 79.

[52] Sims, above n 14, 478.

[53] Lessig, above n 7, 6.

[54] Lim, above n 26, 138. Note that it has been argues that Creative Commons does the same thing — see Section VI below for responses to this criticism.

[55] See Arts 11 and 12.

[56] See Copyright (New Technologies) Amendment Act 2008, s 90 and Copyright Act 1994, s 226.

[57] The Committee noted 'we consider that these provisions are necessary to manage the risk of piracy of copyrighted works in a digital environment, and that they strike the correct balance between the interests of copyright owners and those of copyright users', Copyright (New Technologies and Performers' Rights) Amendment Bill 102-3 (2006), as reported from Commerce Committee, 8.

[58] Segkar, above n 51, 79; Cornish, above n 39, 57 makes a similar point, that there will often be no way of accessing material to use as under the fair dealing provisions.

[59] Ibid 140.

[60] Such as Copyright Licencing New Zealand — see above n 24.

[61] N Elkin-Koren, 'What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons (2005-2006) 74 Fordham Law Review 375, 400.

[62] Lessig, above n 7, 9.

[63] Ibid.

[64] Lim, above n 26, 139.

[65] Lessig, above n 7, 9.

[66] Merges, above n 31, 183.

[67] The pool of CC licenced content is estimated in the hundreds of millions — Chellotis, Chik and Tayi, above n 33, 2.

[68] For instance, the recently released New Zealand Digital Content Strategy 2007 refers to CC licences as a potential digital management tool to help further the government's digital content goals — see The National Library of New Zealand, Creating Digital New Zealand: The Draft New Zealand Digital Content Strategy Discussion Document (Nov 2006) 17.

[69] Without free access to source code, software developers are forced to 'reinvent the wheel' as it were.

[70] See McGhee, above n 30, 5.

[71] Merges, above n 31, 191.

[72] Note that there are several other software licensing systems similar to the GPL. There is also a distinction between 'free' software and 'open source' software, and debate within the software community about which is more desirable. D Hass, 'Uneasy detente: strengthening the market's adaptation of the GNU General Public Licence in common law jurisdictions' (2007) 2(6) Journal of Intellectual Property Law & Practice 382, 382.

[73] Free Software Foundation, What is free software and why is it so important for society, <http://www.fsf.org/licensing/licences/gpl.html> at September 2007. See also GNU General Public Licence, Version 3, 29 June 2007, accessible at GNU Operating System, Licences, <http://www.gnu.org/licenses/licenses.html> at June 2008.

[74] Creative Commons International, Canada <http://www.creativecommons.ca/index.html> at September 2007. See also B Fitzgerald, I Oi and V Tzimas, Creative Commons in Australia' (2004) 7(4) Internet Law Bulletin 48, 49.

[75] Creative Commons licences are not intended for use to licence software. Creative Commons recommends the GPL for this purpose — See Creative Commons, Frequently Asked Questions <http://wiki.creativecommons.org/Frequently_Asked_Questions.html> at September 2007. See also Fox, Ciro and Duncan, above n 43, 113.

[76] The U.S. Copyright Act 1909 provided that any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published (s 9). This remained the case until 1976 when a new Copyright Act was enacted which no longer required notice (see s 102 of the Copyright Act 1976).

[77] He goes on to note, '[t]hus when a resource is held in common everyone has an equal privilege to use it and likewise no one is under a duty to anyone else (including the state) regarding how they may take actions or decisions that involve that resource'. J Cahir, 'The Withering away of Property: The Rise of the Internet Information Commons' (2004) 24 Oxford Journal of Legal Studies 619, 629.

[78] Ibid 630.

[79] R Eisenberg and M Heller, 'Can Patents Deter Innovation? The Anticommons in Biomedical Research' (1998) 280 (5364) Science 698, 698.

[80] Lessig, above n 7, 11.

[81] See T Flew, 'Creative Commons and the Creative Industries' (2005) Media and Arts Law Review 257, 258 - 259.

[82] Creative Commons, Baseline Rights <http://wiki.creativecommons.org/Baseline_Rights.html> at September 2007.

[83] Ibid.

[84] Creative Commons, Meet the Licences <http://creativecommons.org/about/licences/meet-the-licences.html> at September 2007.

[85] Specific licences have been developed to cover music sampling and in other areas where special terms are needed.

[86] CC licences now up to version 3.0.

[87] This is because the New Zealand Copyright Act 1994 is largely based on the equivalent U.K. statute, the Copyright, Designs and Patents Act 1988.

[88] See Copyright Act 1994, s 2. Also, in common law jurisdictions the U.S. 'fair use' is instead referred to as 'fair dealing'. However, the concept remains much the same, despite a slightly different approach to deciding what constitutes a fair use of a work covered by copyright.

[89] The only real courtroom discussion of the licences so far has been in The Netherlands, where the Amsterdam District Court held that 'the conditions of a Creative Commons licence automatically apply to the content licenced under it': <http://creativecommons.org/weblog/entry/5823.html> at September 2007. Currently a case is before the U.S. courts concerning a situation where a Creative Commons attribution licence photograph was used in a advertisement, but primarily relates to privacy rights of the photograph subject.

[90] Loren, above n 9, 272.

[91] Copyright Act 1994, pt 8 provides some protection for licencing schemes. See s 152(2), for instance.

[92] See Copyright Act 1994, s 2 (interpretation).

[93] Ibid.

[94] See Attribution-NonCommercial-ShareAlike New Zealand CC Licence 3.0, accessible at <http://creativecommons.org/licenses/by-nc-sa/3.0/nz/> at June 2008.

[95] See Winter Garden Theatre (London) v Millennium Productions [1948] AC 173, 188-189 (HL) (Viscount Simon).

[96] B van Melle, 'Copyright and contract' [2006] New Zealand Intellectual Property Journal 247, 250.

[97] Thomas v Sorrell (1673) Vaugh 330 at 351. See, in New Zealand, Edwards v O'Connor [1991] 2 NZLR 542, 552 (CA) in which Richardson J held that '[a] licence is simply an authority or permission to do what is otherwise wrongful or illegal'.

[98] Heap v Hartley (1889) 42 Ch D 461.

[99] See Copyright Act 1994, s 2 (interpretation). Section 29(1) holds that 'copyright in a work is infringed by a person who, other than pursuant to a copyright licence, does any restricted act'. See also s 16 (restricted acts include copying, performing, playing, broadcasting, adapting and other uses of the work).

[100] See Mellor v Australian Broadcasting Commission [1940] AC 491.

[101] See Attribution-NonCommercial-ShareAlike New Zealand CC Licence, above n 94.

[102] Loren, above n 9, 289.

[103] Note that for international transactions which very common in internet situations the United Nations Convention on Contracts for the International Sale of Goods (CISG) may apply. Under CISG consideration not required for contracts between parties in different member states.

[104] Note that neither party signs the CC licence or communicates directly to the other regarding it. Further, there is no obligation for licensor to identify themselves in the licence, although, given that all CC licences require attribution, presumably at least a certain level of identification will be carried by the work itself.

[105] See Attribution-NonCommercial-ShareAlike New Zealand CC Licence, above n 94.

[106] In most cases this will be unproblematic (see H Beale (ed), Chitty on Contracts (29th ed, 2004) 135). Difficulties could arise, however, if the user is unaware of the existence of the licence to which he or she has assented. In these circumstances, Loren argues that a contract has not been formed and this is probably the correct view. Unfortunately, this is not likely to put a licensee in a better position because, if there is no licence allowing use, then the work is covered by copyright in the normal way, and any use without permission of the copyright owner is a copyright infringement. See Loren, above n 9, 311 — 312.

[107] See AG for England and Wales v R [2002] 2 NZLR 91, 106 (Tipping J) for a clear explanation of this classic approach, and an approval of the price paid approach. Comparatively, in the eighteenth century Lord Mansfield believed that consideration was simply evidence of the parties' intention to be bound — J Burrows, J Finn and S Todd Law of Contract in New Zealand (2nd ed, 2002) 97.

[108] Ibid 99.

[109] Loren, above n 9, 312.

[110] See Attribution-NonCommercial-ShareAlike New Zealand CC Licence, above n 94.

[111] Loren, above n 9, 312.

[112] Ibid 312.

[113] See Couch v Branch Investments [1980] 2 NZLR 314.

[114] Burrows, Finn and Todd, above n 107, 114.

[115] Loren, above n 9, 312.

[116] Burrows, Finn and Todd, above n 107, 114.

[117] See Attribution-NonCommercial-ShareAlike New Zealand CC Licence, above n 94, cl 5. It should be noted, however, that the irrevocability provision does not prevent the licensor from stopping providing the work under a Creative Commons licence, but only that, once a work is provided to a particular user under a CC licence this particular agreement cannot be revoked. Note also that the licence protects persons who have adaptions or collections from the licencee in the case of an automatic termination (see clause 5).

[118] See Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 (HL).

[119] Wood v Leadbitter [1845] EngR 528; (1845) 13 M & W 838. See Alston et al, Guide to New Zealand Land Law (2nd ed, 2000) 321 - 'a bare licence remains subject to the whim of the licensor'.

[120] See, for instance, Coulthard v Disco Mix Club Ltd [1992] 2 All ER 457, 483.

[121] See Alston et al, above n 119, 326.

[122] Loren, above n 9, 272.

[123] Loren, above n 9, 272.

[124] Articulated first by Lord Denning in Central London Property Trust Ltd v High Trees House Ltd [1946] KB 111, 112.

[125] See, for instance, Maharaj v Chand [1986] AC 898, where promissory estoppel was successful argued to prevent a man from evicting a woman, with whom he had been cohabiting, from his home.

[126] See, for instance, Burberry Mortgage Finance & Saving Ltd v Hindsbank Holdings Ltd [1988] NZCA 220; [1989] 1 NZLR 356, 359 (Cooke P).

[127] Beale, above n 106, 264.

[128] National Westminster Finance NZ Ltd v National Bank of New Zealand [1996] 1 NZLR 548, 549.

[129] See Copyright Act 1994, s 111.

[130] This is no case law on point, but, as a matter of logic it would seem unlikely that one could retake back something one had abandoned. See L Loren, 'Building a reliable semicommons of creative works: enforcement of Creative Commons licences and limited abandonment of copyright' (2007) 14 George Mason Law Review 271, 294.

[131] National Comics Publication, Inc. v Fawcett Publications Inc. 191 F.2d 594, 598 (2d Cir 1952) cited in Loren, above n 9, 319.

[132] [1984] NZHC 124; (1984) 1 TCLR 176. The case was appealed to the Court of Appeal (Frank M Winstone (Merchants) Ltd v Plix Products Ltd [1985] 1 NZLR 376) but this point was not discussed on appeal.

[133] Copinger goes on to note 'There is no direct authority on the point, and it is difficult to say what amount of evidence the Court would require as to the fact of a dedication of a copyright to the public' - Garnett, Davies and Harbottle (eds), above n 13, 198.

[134] Ibid 364.

[135] Loren, above n 9, 319.

[136] Limitation Act 1950, s 4. Under the Limitation Act copyright infringement is treated as a tort. Therefore the usual limitation period of six years applies. Remedies available for infringement are the same as available for a breach of contract action, such as damages. See Frankel and McLay, above n 35, 308.

[137] In the U.S. it has been suggested that in this case a breach of contract action is appropriate but this is unlikely to be an option in New Zealand, for, as discussed above, as we are unlikely to view the licences as contracts. See Loren, above n 9, 301.

[138] Ibid 303.

[139] Ibid 315. See also Garnett, Davies and Harbottle (eds), above n 13, 364 - if one does something for which one does not have permission, will be acting beyond the terms of the licence and thus infringing copyright.

[140] Ibid 309.

[141] Garnett, Davies and Harbottle (eds), above n 13, 341.

[142] A Gonzalez, 'Viral Contracts or Unenforceable Documents? Contractual Validity of Copyleft Licences' (2004) 26(8) European Intellectual Property Review 331, 337.

[143] Commentators in the U.S. have approached the question by looking at the rules about contractual privity. However, given that CC licences in New Zealand are likely not to be considered contractual this analysis is not appropriate.

[144] See A Borrowdale and S Glazebrook Commercial Law in New Zealand (Sept 2007) [12.1].

[145] Assuming that they are aware that the work is a derivative one, which may not always be the case.

[146] J Harrison, 'Creativity or Common: A Comment on Professor Lessig' (2003) 55 Florida Law Review 795, 801.

[147] G McLay, Strategy and Intellectual Property — Scoping the Legal Issues, A Research Report Commissioned to Inform the Development of the New Zealand Digital Content Strategy (April 2006) 11.

[148] S Dusollier, 'The Master's Tools v. The Master's House: Creative Commons v. Copyright' (2005-2006) 29 Columbia Journal of Law and the Arts 27, 272.

[149] Gonzalez, above n 142, 334.

[150] N Elkin-Koren, 'A Public-Regarding Approach to Contracting Over Copyrights', in R Dreyfuss, D Zimmerman and H First (eds) Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (2001) 192.

[151] Dusollier, above n 148, 283.

[152] Elkin-Koren, above n 61, 388.

[153] Ibid 390.

[154] See, for instance, Sims, above n 14, 476.

[155] Loren points out that CC licences 'permit a far greater, and publicly beneficial, range of uses of works than the Copyright Act permits' — above n 9, 275.

[156] Sims, above n 14, 482-483.

[157] Ministry of Economic Development, above n 50, [78].

[158] Dusollier, above n 149, 273.

[159] As discussed above (Part IV) the freedom to run, study, improve, and distribute programs, as well as the fundamental principle of passing on subsequent works with the same freedoms: GNU Operating System, Philosophy <http://www.gnu.org/philosophy/free-sw.html> at September 2007.

[160] Harrison, above n 146, 796.

[161] For instance, if anyone can create a parody of a particular novel, there is limited incentive for someone to put time and effort into creating an excellent one.

[162] S Breyer, 'The Uneasy case for copyright: a study of the case for copyright in books, photocopies and computer programmes' (1970) 84(2) Harvard Law Review 280.

[163] The work will not become an 'orphan work', a work trapped outside the public domain: McLay, above n 147, 16.

[164] Harrison, above n 146, 763.

[165] See <http://www.gutenberg.org/.html> at June 2008. Project Gutenberg contains free e-books of over 20 000 works.

[166] Harrison, above n 146, 802.

[167] Ibid 799. Harrison does acknowledge that works which are published solely in the E-Book form may never be freely accessible, even when they come out of copyright, and that this a potential concern.

[168] Dusollier, above n 148, 285.

[169] G Austin, 'Symposium: Metamorphosis of Artists' Rights in a Digital Age' (2004-2005) 28 Columbia Journal of Law and Arts 377, 377.

[170] Ibid 398.

[171] Dusollier, above n 148, 290. In New Zealand, submitters on the Draft New Zealand Digital Content Strategy were concerned about sending mixed messages to the public about the value of copyright - The National Library of New Zealand, Draft New Zealand Digital Content Strategy Submission Summary (March 2007).

[172] Austin, above n 169, 379.

[173] M Carroll, Creative Commons and the New Intermediaries' (2006) Michigan State Law Review 45, 52-53. For example, Magnatune, a music label, provides artists' works under a Creative Commons Attribution-Non-commercial-Share Alike licence as preview downloads. Physical CDs and whole albums then available for purchase.

[174] Dusollier, above n 148, 280.

[175] Ibid 290.

[176] The major exception being musical works, that often are collaborative (mixing/mashing and the like) as well as some artistic works.

[177] Dusollier, above n 148, 293.

[178] Z Katz, 'Pitfalls of Open Licensing' (2005) 46 IDEA — The Intellectual Property Law Review 391, 393. Note that Creative Commons is currently working to resolve these issues — see C Maracke, 'Creative Commons International - The international context' (Speech delivered at Expanding Copyright Horizons through Creative Commons Conference, Wellington, New Zealand, 27 Oct 2007, accessed at <http://www.r2.co.nz/20071027/html> at November 2007.

[179] See Association Litteraire et Artistique International, 'Memorandum on Creative Commons Licences' (2006) 29 Columbia Journal of Law and Arts 261, 265, 269.

[180] The National Library of New Zealand, Draft New Zealand Digital Content Strategy (Nov 2006).

[181] The National Library of New Zealand, above n 5, 23. Like New Zealand, the Australian government has released discussion papers about digital content, and recognised that addressing intellectual property issues is important, and in particular, encouraging engagement with efforts to investigate alternative licensing schemes. See Department of Communications, Information Technology and the Arts, Creative Commons, Unlocking the Potential: Digital Content Industry Action Agenda (2005). 47. Further, in Australia research about the utility of Creative Commons is being undertaken by the Australian Research Council Centre for Excellence for Creative Industries and Innovation at Queensland University. Their August 2007 report, Unlocking the potential through Creative Commons — An industry engagement and action agenda, seeks to show how Creative Commons can be used to further the Australian government's digital content goals. It also provides case studies of usage of Creative Commons licences in Australia and summarises feedback received from industry. The report concluded that more research is required to elucidate the interactions between Creative Commons licences and traditional copyright law, as well as with commercial licensing systems. It also concluded that awareness and understanding of the Creative Commons system needed to be promoted among the public.

[182] Fitzgerald, Oi and Tzimas, above n 74, 50.

[183] Katz, above n 178, 393.

[184] Ibid 400.

[185] Although the FSF and Creative Commons are working together to resolve these types of issues — see Maracke, above n 178.

[186] Katz, above n 178, 401 — Katz used an evolutionary model of licence proliferation to make this prediction.

[187] Katz, above n 178, 411.

[188] Fitzgerald, Oi and Tzimas, above n 74, 49.

[189] See Attribution-NonCommercial-ShareAlike New Zealand CC Licence (definition of NonCommercial), above n 94. Note also, it is important to remember that commercial use is still possible, just not under the licence. Instead, the Copyright Act 1994 applies and permission must be sought from the copyright owner.

[190] A French International Law Association.

[191] Association Litteraire et Artistique International, above n 179, 265.

[192] Dusollier, above n 148, 289.

[193] Note that there is some debate, beyond the scope of this paper, about whether moral rights should be asserted in CC licences. At this stage the New Zealand licences do not mention the issue. However, while the right to be identified as author must be asserted (see Copyright Act 1994, s 96), attribution is a part of all CC licences anyway. However, the right to object to derogatory treatment of the work (s 98) need not be asserted, so licensors, while putting the licence forward to the whole world, will have recourse the use of their work is treated in a derogatory manner.

[194] Fitzgerald, Oi and Tzimas, above n 74, 49.

[195] For instance, in Submissions on the Draft New Zealand Digital Content Strategy concerns were was raised about the fact that the licences are irrevocable and that young creators, in particular, might not be aware of the implications of a CC licence, The National Library of New Zealand, above n 171.

[196] Merges, above n 31, 201.

[197] Segkar, above n 51, 77.

[198] Merges, above in 31, 201.

[199] See Copyright Act 1994, s 101 (definitions). Non-exclusive statutory licences are provided for in certain special cases such as in relation to public performances (see United States Code 17 USC § 114).

[200] See Part III above.

[201] Lessig, above n 7, 11.

[202] Loren, above n 9, 277.

[203] In fact, Creative Commons has expressed a commitment to resolve issues such as the problems with the definition of 'non-commercial' and licence incompatibility — see Maracke, above n 178.

[204] Use of Creative Commons Licenses and Evaluating its Implications for the Future of Creative Commons and for Copyright Law, paper presented at 36th Research Conference on Communication, Information and Internet Policy (TPRC), George Mason University School of Law, Sept 28-30th ,42.

[205] S Dusollier, above n 148, 272.


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