Вы находитесь на странице: 1из 18

COPYLEFT, CREATIVE COMMONS AND THE

NEED FOR CHANGE


SUBMITTED TO

THE TAMILNADU NATIONAL LAW SCHOOL, TRICHIRAPALLI.

In Fulfilment of the Requirements for Internal Component in

INTELLECTUAL PROPERTY LAW

By

M. Surjeeth Rahulji

(Regd. No. BA0130065)

UNDER THE GUIDANCE & SUPERVISION OF

Mr. Mahindra Prabhu.


Table of Contents
Introduction ................................................................................................................................ 1

a. Research objective .......................................................................................................... 2

b. Hypothesis....................................................................................................................... 2

c. Research Questions ......................................................................................................... 3

d. Research Methodology ................................................................................................... 3

The Philosophy and Jurisprudence of Intellectual Property- Justifications and Critiques ........ 3

The De-contextualized John Locke’s theory of labour .......................................................... 3

The Hegelian theory of property ............................................................................................ 5

The Non- Existent Incentive, Copyright and Progress ............................................................... 7

The Incentive and Commercial Value ................................................................................... 7

Copyright and Human Progress ............................................................................................. 8

Technological Progress .......................................................................................................... 9

Dissenting with the norm: Emergence of Copyleft and Creative Commons ........................... 11

The Free Software Movement and GNU ............................................................................. 11

The Creative Commons ....................................................................................................... 12

Conclusion ............................................................................................................................... 14

Bibliography............................................................................................................................. 16

Books ................................................................................................................................... 16

Articles, Journals and Websites ........................................................................................... 16


Introduction

“If nature has made any one thing less susceptible than all others of exclusive property, it is
the action of the thinking power called an idea…”

-Thomas Jefferson, (A letter to Issac McPherson, 1813)

To put the abovementioned quote in context, this is an excerpt from Jefferson’s letter to McPherson about the
grant of a particular patent, in his letter Jefferson argues not for the abolition of property but rather for the
development of laws of intellectual property in a way that promotes innovation rather than deterring it. From the
water we drink to the air we breathe the capitalist system with its roots laid in greed and exploitation, seeks to
commodify everything and ‘everything’ includes abstract ‘ideas’. This project is aimed at critically analysing the
current copyright regime, its impact on innovation, the emergence of the copyleft counter-culture as an alternative
to copyright and the steps that need to be taken for a future with less barriers and better information dissemina tio n
to the public. For this purpose, we start off by analysing the nature of property rights and the co-relation between
property and intellectual property, especially, the concept of copyright that seek to protect purely intangib le
property such as ideas and expressions. Through corporate lobbying and influence, MNCs and the elite class have
always been pushing for a more stringent copyright regime that would serve their profit-motive and we are now
at a phase where our copyright laws have become so rampant that they essentially deter innovation instead of
their supposed aim of incentivizing innovation and creativity. For example, consider the robotic dog developed
my Sony named “Aibo”, Aibo was expensive, popular, had its geeky fan base and in this fanbase was a fan who
created a website named aibopet.com where he provided information on Aibo including information on how to
teach it new tricks. Aibo being a robotic dog ‘teaching new tricks’ meant hacking the dog and enabling it to do
things that Sony did not program it to. When that fan programmed Aibo to make it dance jazz what it meant for
the fan base was excitement and happiness but what it meant for that programmer was a legal notice from Sony
to shutdown aibopet.com for violation of copyright laws, namely, the Digital Millennium Copyright Act. It is this
inherent contradictions within the current copyright regime that we seek to address. After the analysis of the
philosophical and jurisprudential background of intellectual property (more specifically, copyright) we will move
on towards examining the reasons and consequences for the emergence of movements such as the Free Software
Movement that gave birth to licences such as the Copyleft and the Creative Commons (hereafter referred to as
CC). Instead of adopting a property abolitionist perspective these licencing schemes operate within the existing
framework of copyright law to encourage sharing of works rather than discouraging them, similarly, we take a
stance that advocates for reformation of existing copyright laws so that it can continue serving its purpose of
incentivizing innovation and creativity.

1
The main criticism advanced towards the current copyright regime through this project is that the existing
copyright laws have made ‘barriers to use’ the norm and ‘freedom to use’ the exception while licences such as
CC seek to provide an alternate narrative where freedom is the norm and barriers become the exception, these
licences try to shift from being ‘all rights reserved’ to ‘some rights reserved’ wherein the consumer is not barred
from using without permission but rather the consumer is actively encouraged to use the work while adhering to
the author’s terms of use. Thus, the licences are also expressions of more authorial autonomy and independence
since in the world of internet and file sharing millions of authors want their work to be shared rather than barred.
Further, another important feature of CC is the feature of these licences being readable by humans as well as
machines as opposed to a copyright licence which is readable only by lawyers. However, as admitted by one of
the founders of CC himself, CC is only the second best solution since the best solution was not supported by law
which is to make freedom to use the general rule of law and make exclusive monopoly granted through a formality
requirement (i.e., having a notice about the intention to hold monopoly over the work). There are two kinds of
views over copyright law that have clashed throughout the history of copyright law, the “private property vision”
and the “public policy vision”.1 The private property vision views copyright as an inalienable natural right to
property of the authors, meaning that it is a right that is inherently vested with the author and cannot be alienated
even for society’s needs, and the public policy vision views copyright as a right historically developed as society’s
grant of a limited monopoly and not a natural right, meaning that the rights of authors must be weighed against
the freedom of everyone else to use the copyrighted work. 2 The ongoing battle is a battle between private property
vision and the public policy vision.

a. Research objective

 To broadly examine the philosophical and jurisprudential justification and criticism of Intellec tua l
Property.
 To inquire into the circumstances surrounding and consequences of the emergence of the Copyleft
and the Creative Commons movement.
 To analyse whether the current path of development of our copyright laws is detrimental or benefic ia l
for innovation and creativity.

b. Hypothesis

There is a need to return to the formality requirement in our copyright laws and to set ‘freedom to use’ as the
norm where we move towards a ‘free culture’ rather than a ‘permission culture’. The current stringent copyright
regime that automatically reserves all rights to the authors without the need for explicit notice is a barrier in the

1 Kim,M. (2005). An Analysis of the Creative Commons as a Solution for Copyright Protection in the Digital Era . Unpublished doctoral
dissertation, University of North Carolina at Chapel Hill. Cited in Minjeong Kim, The Creative Commons and Copyright Protection in
the Digital Era: Uses of Creative Commons Licenses, 13 Journal of Computer-Mediated Communication 187, 209 (2008).
2 Minjeong Kim, The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses, 13 Journal

of Computer-Mediated Communication 187, 209 (2008).


2
way of creativity and innovation since there is a cost barrier and time barrier that exists when an author is to be
contacted to make use of his/her work which ultimately hurts both the author as well as the consumer.

c. Research Questions

1. How are licences such as Creative Commons different from the dominant Copyright narrative?
2. Why should the current copyright regime be reformed in order to promote innovation and
creativity?
3. How can a norm of ‘free culture’ be generated as opposed to a ‘permission culture’?

d. Research Methodology

Doctrinal research methodology has been adopted for the purposes of this research examining the existing
position of law. Primary sources such as legislations and judicial decisions as well as Secondary Sources such as
books, articles and other scholarly works have been used for the purpose of this research.

The Philosophy and Jurisprudence of Intellectual Property - Justifications and Critiques


Intellectual property is championed mainly through Lockean and Hegelian theories. This championing is done
through narratives that portray copyright as a universal instrument for the protection public good and that
intellectual property egalitarian as it ensures non-accumulation of wealth through the limited duration protection
that it offers. Apart from this, there is also the incentive/reward theory that portrays a copyright- less society as a
dystopic nightmare without any creative work.

The De-contextualized John Locke’s theory of labour

One of the most widely used theories for justifying intellectual property is the theory of property propounded by
John Locke. The general outline of Locke’s theory is that God grants this bounty to humanity for its enjoyment
and these goods cannot be enjoyed in their natural state, therefore, individuals must through exertion and addition
of labour upon them must convert these common bounties into private property. This labour adds value to the
goods, if in no other way than by allowing them to be enjoyed by a human being. 3 Another important presumptio n
in Lockean theory is the ownership that a person holds over his own self which is made through the assertion that
one’s body is one’s property. The justification of the propertization of ideas under Lockean theory is done through
three propositions: firstly, the production of ideas is done through application of one’s labour. Secondly, the
appropriation of these ideas from the common through the use of labour does not significantly devalue the labour.
And thirdly, ideas can be propertized without breach of the non-waste condition. The non-waste condition is the
condition that limits over-accumulation of property. It is the condition that prohibits accumulation of property in
such an amount that some is destroyed without being used, through appropriation of property from the commons

3 Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1998).
3
property held in the commons is utilized by the individual and is thus prevented from being let to waste. This
argument however fails to hold any ground in the context of intellectual property since while Land can be over-
grazed or through neglect become a ‘waste’ the same notion cannot be applied for incorporeal ideas. Can the
‘over-use’ or neglect of ideas lead to the reduction of their value in use? Certainly not. Information is a ‘non-
rival’ good and the dissemination of information does not reduce the use-value of information. Information is a
non-rival good in the sense that the usage of a particular information by one user will not impair the ability of
another user to make use of that same information. Thus, sharing of goods (information) in the digital context
does not reduce the utility value of that good or the quality of the good that is shared. The best example of this is
software. The only way a person can prevent the copying of software is by preventing third persons from
accessing it. Once access is granted, it can be copied for almost no cost. This copying, moreover, does not affect
the utility of the software itself, nor does it prevent the usage of that software by the original owner. 4

The question that Locke fails to answer is why, if authors add labour to ideas, the result becomes the property of
the author; his theory simply rests on the assumption that property is the reward for labour. 5 Also, if the basic
requirement for having ownership over property is then addition of labour then what is the basis of the
fundamental presumption of this theory that a person holds property over himself? This becomes problematic
since the property over oneself is definitely not a product of labour. What Locke seeks to propound here is a
theory that upholds personal freedom and liberty with the state power severely constrained. It is important for us
to note that Locke’s theory of property was only intended for natural/physical property and was propounded as
part of a wider agenda against the theory of absolute monarchy and it is quite justified to say that the he did not
intend for the application of his theory to ideas but what we do know certainly is that Locke was a liberal
philosopher who held extreme antipathy towards overreach of state power, monopolies and other such likes that
curbed individual freedom and expression and it is quite ironical that his theory has been hijacked and used for
the support of intellectual monopoly. This lack of contextualization is predominant throughout all texts that seek
to justify intellectual property through the Lockean theory of property. Contextualizing the labour theory makes
it quite apparent that the theory does not hold much foot in the current era and its usefulness runs out with forms
of work that are characterized by interdependent relations such as the construction of a building in which a large
number of people mix their labour or building a software. The connection that the Lockean theory posits between
labour and the object of the property right is not straightforward, Robert Nozick raises a question by asking
whether he can claim property rights to the ocean by mixing a can of tomato juice that he produced using his
labour6 . Further, the very assumption that abstract objects can be products of labour can be problematized. Did
Mickey Mouse exist in the global commons for Walt Disney to exert his labour appropriating it as private

4 Liang, Lawrence, Atrayee Mazmdar, and Mayur Suresh. “COPYRIGHT/ COPYLEFT: MYTHS ABOUT COPYRIGHT ”. (Nov. 05,
2016, 12:30AM) Available at: http://infochangeindia.org/200405096065/Trade-Develop ment/Intellectual-Propert y -
Rights/Copyright/copyleft-Myths-about-copyright.html.
5 Ibid.
6 Supra note 4.

4
property? Thus, it becomes rather clear that Lockean theory of property was not intended to be applied to
intangible intellectual property and rests on a shaky ground. The labour theory of intellectual property also has
other problems to deal with since in an interdependent and differentiated society like ours the abstract labour of
one individual is made possible through the labour of many others and, therefore, the labour theory instead brings
us closer to negating intellectual property altogether rather than strengthening it since no single individua l’s
labour produces a work but rather abstract works are, almost always, built upon the labour of others, hence,
disabling any claim by a single individual for private ownership by virtue of labour.

Therefore, Locke’s theory of property becomes inconsistent to serve as the fountainhead of intellectual property
and, when contextualized as a theory that sought to promote individual freedom and a just government, the theory
becomes too problematic to justify intellectual property.

The Hegelian theory of property

Hegel was critical of all forms of property but, however, the Hegelian conception of personality and individ ua l
will is hijacked and is often used as an argument that justifies intellectual property. This personality theory
justifies intellectual property by defining it as an expression of an individual’s personality and thus justifies a
legitimate ownership over the property by the individual. This accounts, especially, for the moral rights that an
individual acquires over his intellectual property that may even be exercised after he sells that property. This
theory seems especially appealing when we deal with forms of intellectual property such as copyrights of
literature or dramatic works but before proceeding to analyse Hegel’s theory and how it relates to intellec tua l
property we, firstly, have to see the contradiction that exists between the personality theory and the Lockean
labour theory of property. For Locke, property serves personality since it allows individual to exert his labour
and thereby fulfilling god’s will but, for Hegel, property is the embodiment of personality itself. Further, the
Lockean theory explains private property as property that is appropriated by an individual from the commons
through exertion of his labour unto the property but, for Hegel, the individual will that is expressed and embodied
in the property is not in possession of anyone but rather is an expression coming from oneself as an individ ua l
will or expression of personality.

The idea that one can claim ownership over property since it is an expression of individual will/personality stems
from an extremely individualistic conception of will/personality that fails to take into consideration the external
influences on these expressions. While it is undesirable to view individual expression as strictly a product of
external influences such as traditions, history and institutions it is equally undesirable for us to completely ignore
the influences that these forces have and how they facilitate, restrict and shape individual expressions. Further,
Hegel’s primary aim was to explain property rather than to justify it and it was an explanation for how personality
begins to actualize itself in the world through property, an explanation that talked not exclusively about
intellectual property but rather about all forms of property. Now, as said earlier, Hegel was a critic of all forms

5
of property, explaining private property as a mere tool for an individual’s survival (biological as well as social) 7
and seeking to justify intellectual property through his theories is done only through de-contextualization. Hegel’s
theory had no distinctive class of rights that authors’ held differentiated from other property right holders but this
distinction was made possible through Kantian philosophy. Kant suggested that ‘an author’s right is an innate
right, inherent in his own person’. 8 The result of such conception is the creation of ‘moral rights’ for authors,
those rights are seen as claims that the author can make over his work not because he owns it but rather because
it is an expression of his personality and the claim will not just be a claim over the work but rather a claim to the
protection of the author’s personality. But, the consequence of distinguishing intellectual property from other
forms of property through the Hegelian theory is the creation of a certain class of property rights holders (authors
and artists) who become entitled to make claims that a normal, conventional property rights holder cannot, for
example, a motor cycle enthusiast who renovates an old car and thus expresses his personality cannot claim
ownership over it once he sells it and this differentiation is without any explanation and fails to answer the
question as to why this differentiation is justified.

Further contextualization of Hegel’s work can help us see how he was critical of all forms of property and how
the Hegelian theory might actually be used as a theory against intellectual property rights rather than for it.
Hegel’s dialectical system analysed the State in a much deeper way than most liberal thinkers and he classifies
the State system into three categories: The civil, the ethical and the political system. The civil society represents
the collection of individuals within the state that seek to accomplish individualistic goals and the subjectivity of
such strong individualism while the ethical represents the enclosure of that individualist subjectivity by the
community through public morality and attitudes. The synthesis of these two contrary forces within the legal and
institutional framework was, for Hegel, the secret of the State system’s success 9 and for this success to continue
the equilibrium between the two contrary forces must be maintained. Property itself is not a mere institution of
the civil society but rather an institution that is accepted by both the civil and the ethical since the security of
property is always dependent upon the ideals that citizenry conforms with in the ethical part of the State. For
Hegel, the State clearly had a role in preserving the rights of individuals as members of the civil society but at
the same time it also has an obligation to preserve the ethical life of the State and only when the political mainta ins
these two contrary forces in an equilibrium a state can be successful. Hegel was aware of the dangers that the
civil society poses to this equilibrium since its subjective, individualistic force had the potential to become a
predatory force that would threaten the State and freedom itself. 10 Intellectual property rights are individualis tic
rights and are products of civil society, these rights serve to increase the pressure that civil society exerts upon
the political system thereby disturbing the equilibrium. When abstract objects are recognized as property
individuals begin to realize the strategic advantages for business that such a proprietary control over the abstracts

7 Peter Drahos, A Philosophy of Intellectual Property, 77 (2001), Darthmouth Publishing Company Limited, England.
8 Kant, The Metaphysics of Morals. cited in Drahos p.80.
9 Supra note 7. p.84.
10 Ibid.

6
presents them with and due to this a race to secure property rights in the abstract realm begins, this race of the
civil society generates enormous pressure on the political to enact laws that safeguard intellectual property rights.
Hegel made it an obligation of the state to protect the ethical community and suggested that individua l’s
participation in the larger ethical life of the community is the final stage of individual’s journey towards freedom
but, however, ethical life of the community is threatened by the civil society’s push towards protection of selected
proprietary interests which instead only results in a group morality that is held within a particular narrow group
of individuals, the bourgeoisie publishers, rather than the community at large.

The Non-Existent Incentive, Copyright and Progress


The Incentive and Commercial Value

Apart from the abovementioned two major philosophical foundations, the incentive theory is also commonly used
to justify the existence of copyrights. The proponents argue that, without an intellectual monopoly there will not
exist any incentive for the author to produce further creative work ultimately depriving the society of any creative
work. Further, in the absence of copyright protection, it is argued, the low cost of copying the author’s work
would induce others to ‘steal’ the work and as a result rivals could profit from a work produced by a differe nt
person without expending any time or energy and because of this there arises little hope for author’s to recover
their investment which ultimately curtails creative work. Now, what we have to look at is the completely
ahistorical narrative of incentive theory that bases itself on the assumption that authors seek only pecuniary
benefit and that copyright is the necessary incentive for authors and artist to create. The 19 th century saw the
prolific authorship of literary works in the absence of any meaningful protection afforded to authors by virtue of
their copyright.11 In the vast majority of cases, most of the profits went to the publisher and, on occasion, authors
were even asked to underwrite a portion of the publishing costs and it is very much clear that copyright protection
usually benefitted the publisher and rarely the author. 12 Apart from this, let us take a look at the present era itself,
everyday thousands of blogposts are made and thousands of books are self-published and among this vast amounts
of creative work produced by humans only a tiny fraction has continuing commercial use and for this tiny fraction,
the copyright laws become crucial for litigation13 . For that tiny fraction are the laws made that provide the
assumed incentive and for that tiny fraction’s benefit the copyright laws exist harming the greater good. Further,
even for that tiny fraction, however, the time during which the creative work has commercial value is extremely
short as most, for example, most books go out of print in one year14 while the restriction on that commercia lly
valueless product continues to exist. But, the commercial utility of a work and its creative value are not the same
and are independent of each other. While the commercial distributors will stop the distribution of a work once it

11 Supra note 4.
12 Ibid
13 Lawrence Lessig, Free Culture (2006), Source: http://free-culture.cc.
14 Ibid

7
has lost its commercial value the creative value of the work will never be lost. We don't keep libraries of books
in order to compete with Barnes & Noble 15 but instead it is the non-commercial life of culture that we seek to
preserve. This non-commercial culture is important not only for entertainment but also, more importantly, for
knowledge and in this context copyrights were useless and did little harm in any aspect since long copyrights, in
an era with less effective copying mechanisms, did not mean much. But, in the current era, the evolution of digital
technology has completely changed this scenario.

Copyright and Human Progress

Brewster Kahle is the founder of the Internet Archive, a series of projects aimed at preservation and archiving of
human knowledge. The Way Back Machine (a part of the Internet archive project) is now the largest archive of
human knowledge in the history of humanity. At the end of 2002, it held "two hundred and thirty terabytes of
material” and was "ten times larger than the Library of Congress."16 This has been made possible through the
evolution of digital technology and the increased efficacy of copying and through it archiving/preserving a work.
Therefore, now we are presented with a choice before us, a choice that has been unavailable for us througho ut
history but has now been made possible because of the evolution of technology, the choice to preserve knowledge
and distribute it to the entirety of the population after the work loses its commercial utility or “goes out of print”.
Technology has now made it possible to preserve knowledge and assure universal access (at least to anyone who
has an internet connection) to this knowledge which was not an option before and this context copyright law does
get in the way and harm progress.

We are a generation being brought up on the myth that copyright laws signify the progress of human society
while reality, however, runs contrary to this claim. Copyright laws merely signify the inability of our legal system
to catch up to the technological progress and development of human society. The Library of Congress has an
astounding amount of knowledge stored in it, from books to pictures to music and a vast majority of this material,
perhaps to an extent of ninety-five percent in the case of books, are commercially unavailable meaning they
cannot be bought at most places and are no more generating profit and are not distributed by commercia l
distributers and this process of going out of commercial distribution happens comparatively quickly.17 The only
way through which this knowledge can be preserved is through digitization and archiving but digitization would
mean copying and thus archiving will result in “stealing” and the archiver being a thief or, rather, a “pirate”.
Because of our long copyright term periods almost all of this vast repository of knowledge is unavailable for the
vast majority of the public and, in fact, most of this might not be available to the general public for another
century. In other words, much of the twentieth century culture (at least that of the west) is locked up inside that
building, a culture that is copyrighted but unavailable, lost culture. No one can reprint books or archive the movies

15 Supra note 13.


16 Supra note 13. pg.115
17 James Boyle, The Public Domain (2008), Source: http://yupnet.org/boyle/

8
because copyright laws do not allow anyone to. Companies that held copyright have gone out of business, authors
and film- makers have disappeared in time and therefore it is almost impossible for anyone to seek permissio n
from every single author or film-maker before the film is archived or the book is digitized. These works, which
are commercially unavailable and also have no identifiable copyright holder, are called “orphan works” and they
make up a huge percentage of the holdings of our great libraries.18 In fact, scholars estimate that the majority of
our film holdings are orphan works without any owner but still under copyright.19 Therefore, not only are these
works unavailable commercially but there is simply no way to find and contact the person who can permit the
copying of the work.

Technological Progress

In 2000, a sixteen year old Jon Johansen was charged under copyright infringement, more precisely, under access
circumvention laws when he released a simple computer program that was capable of playing DVDs from any
region in contrast to the proprietary software that big companies release that refused play any DVDs that was
purchased from outside the country’s market. Jon was released four years later after he incurred legal costs of
over $30000. In late 90s, when an independent programmer called Dmitry Sklyarov produced his own e-book
reading software that ignored access restrictions that were placed upon the e-books by companies like Adobe he
faced a similar fate where he was arrested by the FBI and charged with circumvention of the DMCA. The DMCA
is the Digital Millennium Copyright Act passed in 1998 in USA which later went on to be adopted by the EU and
the 43 other countries as the WIPO Copyright Treaty, a legislation that through its “anti-circumvention clause”
made not only copying a book a crime but even merely reading it or otherwise using it in any manner not approved
by the publisher and this lack of approval was the reason why Jon and Dmitry suffered fines and prison charges.
While we have in our hands the software as well as hardware capabilities to distribute digital music and movies
in standard, published formats which any device can understand, the hardware and software manufactur ers
collude to form an alliance that curbs this distribution creating an artificial scarcity ultimately stunting the
society’s development for profit motive. Not only do these companies refuse to create efficient technologies they
lobby to create copyright laws that actively curb the development of such efficient technology.

The Peer-to-peer (p2p) technology is a very good example of how corporate lobbying and inefficient copyright
laws obstructed technological development through their stringent and unjustified laws. When a 15-year old
Shawn Fanning and 14-year old Sean Parker met over the internet, their common interests were theoretical
physics and hacking, the result of this friendship was Napster a company that popularized the p2p technology by
making it more accessible and user friendly. The p2p technology is now used by many companies includ ing
Microsoft and start-up companies to distribute their content and this technology could have evolved in a much
rapid way had it not been curbed through copyright laws. The case against Napster was that it was an mp3 sharing

18 Supra 17. p.20


19 Ibid.
9
tool that infringed on copyrights and while huge bands and record labels such as Metallica were affected
negatively by it there were equal if not more number of smaller producers who benefitted from such file sharing.
These smaller producers had no access to any mass media and had little air time on radios and their albums
managed to hit the charts and billboards because of peer-to-peer file sharing, one such example is a band called
‘Dispatch’ that became the first ever independent band to sell-out the venue for three consecutive nights in the
Madison Square Garden despite having no access to mass media promotions or advertisements. The famous band
Radiohead’s album Kid A became a top-selling album despite it being distributed through Napster months before
its release and estimated to be downloaded by millions before its official release.

It is also interesting to note that many of the huge corporates that push for stringent copyright laws were
themselves brought to the top through infringement of such rights, for example, Fox studios in one among the
“independents” who refused to comply with Thomas Edison’s patent rights and to escape the grip of these laws
the “independents” fled the east coast to California so that they could pirate Edison’s copyrights. Another example
for this would be Walt Disney, his famous character Mickey Mouse first appeared in a silent film called Plane
Crazy which was a flop and Mickey’s rise to fame through the film Steamboat Willie was not until when Walt
Disney managed to copy the sound synchronizing technique that was introduced earlier in the year 1928 in a film
called Jazz Singer. When Napster argued in the court that it had developed a technology to block the transfer of
99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good
enough. Napster had to push the infringements "down to zero."20 These examples make one fact clear, that the
war that the current copyright laws claim to wage is not a war against the “pirates” or against content stealing but
rather it is a war against file-sharing networks. What we try to convey through the examples here is not a world
without any intellectual property rights but rather the idea that maybe copyright and intellectual property laws
are not as sanctimonious and correct as they are made to be seen and the idea that it is not strict copyright laws
that promote creativity through incentive but, in fact, it is quite the contrary.

The need of the hour is to contextualize our laws within the technological growth that we have achieved in our
society. Only this contextualization and the historical as well as theoretical re-assessment of our notion of
copyright can help us in answering the ultimate question: Do copyright laws really promote innovation? On the
one hand, you have hardware manufacturers with the ability to manufacture (and manufacturing) better CD
writers at a cheaper price and advertising their products with the magical words, Burn, Rip, Copy, Duplicate,
Store, etc. On the other hand, you have the content industry screaming itself hoarse at these new technologies
that are making it easier for people to “steal” information unethically21 and preventing these technologies from
arising through corporate lobbying and legislation. These developments in digital technology and human progress

20 In Re: Napster Copyright Litigation cited in Supra 13. p.82


21 Supra note 4.
10
now call for us to re-asses our ethics, morality and laws and for us to put our copyright laws in context in and
determine whether the current copyright regime promotes progress or is a hindrance to it.

Dissenting with the norm: Emergence of Copyleft and Creative Commons


We now realize that copyright is not an absolute good as it is portrayed to be but we recognize that pecuniary
incentive is, in fact, a needed incentive in certain cases and we recognize that stealing and misappropriation of
others’ work is, in fact, a serious problem but what is more problematic is that while we try to prevent content
theft and while we try to provide incentive we have to be careful not to restrict technological growth and not to
restrict human progress. However, while huge corporates like Fox studios and Disney studios lobby for stringe nt
copyright laws and WTO and WIPO pressure the whole of the globe to comply with those laws this possibility
of waiting for the governments to reform the copyright regime and the pressure that we are going to have to put
on the government to do it make this struggle a long and hard one. Armed with restrictive contracts, restraining
technological measures and excessive influence on policymakers, copyright holders have managed in the last
twenty years to effectively transform the public and social protections of copyright into an impenetrable fortress
where any use of a work can be controlled, inhibited or purchased. 22 In the meanwhile, opponents of copyright
throughout the world have come up with alternative ways in which the interests of the authors can be secured
without resorting to the violent mainstream copyright laws and, more importantly, ways through which
information and culture can once again become free.

The Free Software Movement and GNU

The “Free Software Movement”, for example, had demonstrated and disproved the claim by the copyright
proponents that there would be no usable software without copyright monopoly on it. The free software
movement was spearheaded by Richard Stallman that promoted the growth of free software, “free” as in free
speech and not as in free lunch. The achievement of this movement was the creation of GNU licence type for
software. GNU is a system software that written by Richard Stallman for him to freely give it away to anyone
who can use it and as said before ‘free’ as in ‘freedom’.23 The specialty of GNU was that it was not in the public
domain and was within the copyright regime but, unlike other copyrighted software, GNU allowed everyone
modify and redistribute GNU under the condition that no distributor is allowed to restrict its further redistributio n.
In his GNU manifesto, Stallman claims, “This means much more than just saving everyone the price of a Unix
license. It means that much wasteful duplication of system programming effort will be avoided. This effort can
go instead into advancing the state of the art.” 24 Let us take a look at mainstream proprietary software and how

22 Séverine Dusollier, The Master’s Tools v. The Master’s House: Creative Commons v. Copyright (2006), Electronic copy available
at: http://ssrn.com/abstract=2186187
23 Richard Stallman, The GNU Manifesto in Free Software, Free Society: Selected Essays of Richard M. Stallman, 33 (Joshua Gay ed.,

2002), Free Software Foundation, Boston.


24 Ibid p.36

11
GNU radically challenges the paradigm and offers a much efficient and technologically progressive alternative.
In the current copyright paradigm when one program is flawed, say, due to a bug the users of that software are at
the mercy of the distributor of that software for the program to be debugged and made usable, for example, if
there is a bug in the Adobe Photoshop program that causes the program to crash often then the millions of users
who bought that program can only wait until Adobe patches the bug and makes the program usable. In the
paradigm of GNU licences, complete system sources will be available to everyone and therefore anyone with
sufficient programming knowledge will now be able to debug the program and, more importantly, build a new
program on top of that program with much more advanced features and at the same time not wasting time on
building the software again from scratch. As a result, a user who needs changes in the system will always be free
to make them himself, or hire any available programmer or company to make them for him. Users will no longer
be at the mercy of one programmer or company which owns the sources and is in sole position to make changes. 25
These licences such as the GNU fall under the category of “copyleft”, a parody of the term “copyright”. Copyleft
is a general method for making a program free software and requiring all modified and extended versions of the
program to be free software as well. 26

The Creative Commons

The basic idea behind copyleft is to guarantee every user the freedom and to further the development of more
such free software. And on this same idea Stanford University professor Lawrence Lessig, in 2002, along with
some more people crafter the CC Licence. Copyleft licences are almost always free and open source software
licences and the difference between copyleft and CC is that CC allows for a better control over the work for the
author. CC licencing provides authors with several different type of licences that can be found at the Creative
Commons website27 and these licences may impose various different conditions on consumers but always more
free than the copyright laws. While under GNU everyone was bound by the single GNU licence, CC allows
authors to customize their licences to an extent, for example, under CC an author can customize his licence in
such a way that it prohibits derivatives or, at the same time, authors can permit the work to be used in any way
that the users want with the common condition among all the licences being that the original author should be
credited for the original creation. The hallmark of open content licensing is easy to use licences that have low
transaction costs and are non-discriminatory in nature; in other words, they can be employed by everyone with a
minimum of effort e.g. by clicking a button. 28 Thus, the CC licence manages to effectively place the licenced
work in the commons subject only to the restrictions imposed by the licence. While copyright laws have “all-
rights-reserved” Creative Commons emphasizes on having “some-rights-reserved”. While copyright laws never
allow a work to be used except after meeting certain conditions, CC licences always allow a work to be used with

25 Supra note 23.


26 Richard Stallman, What is copyleft? in Supra note 23 p.91.
27 See https://creativecommons.org/licenses/
28 Brian Fitzgerald and Ian Oi, Free Culture: Cultivating the Creative Commons (2004), Media and Arts Law Review.

12
certain restrictions. This is a step towards developing a “free culture” as opposed to the “permission culture” that
exists now. CC licences use intellectual property rights as the platform on which to structure downstream user
rights. By claiming copyright in the content that will go into the commons the owner can determine how that
content can be used downstream e.g. to further develop the commons. 29

As of 2015 there are more than one billion works licenced under the Creative Commons30 without including 802
million works available in popular websites such as Flickr, Wikipedia, YouTube, DeviantArt, etc.,. An estimate
of Flickr alone shows that the number of public domain works marked by CC have increased from 3,276,000 in
2006 to 34,962,430 in 2015 while the site Europeana31 alone reports over 10 million works of similar nature.32
On a survey of 617 people, while 71% of them said that they do not make financial from their work, it is
interesting that 19% of the interviewed people said income generated from their copyrighted works is a
supplementary source of income, followed by about 3% of CC licensors who said it is their main source of income
and majority of them did not care about remedies that they can obtain when suing for copyright infringeme nt. 33
So, while it may be true that a majority of authors and artists licencing under CC may not generate income from
it, it is also true that there are significant number of people who do generate profit from those licences and this
should be viewed in contrast with the estimates that suggest that a mere twenty-eight years after publication 85
percent of the works are no longer being commercially produced. 34 While the proponents of the “private property
vision” of copyright imagine an author struggling alone in his or her garret and creating out of thin air and
advocate for the author’s absolute ownership over his or her work, the proponents of the “public policy vision”
emphasize that contemporary authors owe intellectual debts to prior authors, and that all original works are in
part derivative and hence emphasize the role of the public domain in authorship. 35 The abovementioned survey
found that the CC licence holders’ views tended to align with the public policy vision of copyright and this means
that CC licensors think that cultural production relies upon others’ work and that it cannot be entirely independent
from others. The survey also found answers in affirmative for the Lessig’s argument that we have turned from a
“free culture” into a “permission culture” that is highly restrictive and threatening freedoms of users. 36 The survey
also provides that majority of CC licensors’ top motivation behind their work is “love of creating/inner desire to
create/fun/hobby” with “reputation/recognition from others” taking the second important motivational factor for
creating their works. About half of the survey participants had also said that they had used works issued by others
under CC licences. The survey ultimately concludes that CC has contributed to the growth of a cultural commons

29 Supra note 28.


30 Seemhttps://stateof.creativecommons.org/2015/data.html#more-than-1-billion-cc-licensed-works-in-the-co mmons-as-of-2015
31 Europeana is a meta-aggregator and display space for European digitised works according to Wikipedia and is an online digital
platform to preserve Europe’s cultural heritage. (See europeana.eu)
32 Supra note 30.
33 Supra note 2.
34 Barbara Ringer, “Study Number 31: Renewal of Copyright,” cited in Supra note 17. p.20.
35 Supra note 2.
36 Supra note 2. p.196-197

13
that the public can, and does, use.37 The survey ultimately concluded that CC is certainly useful in solving certain
problems such as allowing individuals more freedoms and also in helping the growth of the cultural commons
from which everyone can benefit but however was sceptical whether CC could be the ultimate solution for our
problems.

Conclusion & Suggestions


What we see here is an ongoing battle in the context of culture. We are living in a world where business and
profit motive are threatening technological development and hindering progress, a world where the previous
century’s powerful hold power over control the next century’s innovators. 38 The hypotheses that we started with
has been proven true after observing the exponential growth of CC licences among artists and the analyses on
how copyright restricts innovation and copyright laws hinder technological advancement and are still caught up
in the last century. The ongoing battle is a battle between copyright extremism that promotes a permission culture
and the copyleft side that promotes a free culture which will allow many more Steam Boat Willies to be copied
and many more Walt Disneys to flourish. Copyright laws should be changed to significantly reduce the term
period of copyright, to make it mandatory for the copyright holders to renew their licence often and, most
importantly, to promote emerging competitions like the GNU GPL (General Public Licence) and the CC licences
that seek to downstream users’ rights rather than restrict them in boxes. The promotion of Creative Commons
certainly has a vast array of benefits, including but not limited to, an exponential increase in the available pool of
the Creative Commons that will available for users to help them in their creative endeavours, more user-friend ly
mode of licencing rather than mechanical copyright licences that can only be read by computers and lawyers,
more customizability for authors in determining how their work will travel in the knowledge pool, increased
dissemination of information, etc.,.

However, we also have more important questions at hand to be answered including questions of pressing
importance like “Can movements of the copyleft really solve the issues of the copyright regime?” for as Audre
Lorde, a black feminist writer, poet and activist, wrote that “the master’s tools will never dismantle the master’s
house.”39 As Séverine Dusollier, a project leader for Creative Commons in Belgium, says the Creative Commons
might not bring about the revolution that it claims to advance. 40 Though CC licences are creative and innovative
methods to bypass the stringency of copyright laws they do this bypassing by operating within the copyright
regime and it is quite doubtful that such a mechanism that operates within that system. The main criticis m
advanced towards CC licences that he puts forth is that it addresses the problem of copyright solely from the side

37 Ibid. p.200
38 Lawrence Lessig, The Creative Commons, 65 Mont. L. Rev. (2004).
39 Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, in Sister Outsider, 110, 112 (1984). cited in Supra note

22.
40 Supra note 22.

14
of the users, based on their needs and demands, while forgetting the author and tends to leave the regulation of
copyright to the market where creative works are only considered as commodities. The origin of copyright aims
at regulating the circulation of creative content in the public sphere by securing the right of the author to such
circulation and fostering public access to the works, as well as public discussion and reuse of works 41 , for
example, in the eighteenth century, which witnessed the birth of copyright legislation, the public sphere was the
place where authors and the public discussed new ideas and literary works.42 In addition to this aim of informatio n
dissemination copyright laws dealt with the place of the work in the market as commodities but, however, the
recent shift towards an increasingly private right oriented copyrights law signifies a shift in that primary attitude
where we now prioritize the treatment of works as commodities in the market and less as information that should
be disseminated in the public sphere. Creative Commons, in its essence, is a mode of contractual agreement that
has certain terms attached with it and it is a legitimate fear that such a move towards attaching an inalienab le
contractual term to works may, in fact, emphasize the view of the work as a commodity further by embedding
rules that further reinforce the notion of the exchange and use of work as a commodity. While other regulatio n
methods such as contracts or technology might help restore this balance, they should never be a substitute for the
law.43 While Copyright (in principle) seeks to serve the interests of the authors of the works (though it be a
minority) Creative Commons (in principal) seeks to serve the interests of the users and the consumers but both
of them simply reinforce the consumerist logic of a commodified work. Copyright serves the interests of the elite
bourgeoisie corporations, the highly paid elite record labels and musicians and film- makers and Creative
Commons serves peoples like scientists, and teachers who benefit more by their work being circulated freely
among their peers and even the artists whose primary focus is on their work being shared among people rather
than a remuneration. But the change of social practice in copyright will not be achieved without an in-depth
consideration of the economy of culture and the conditions for artistic practices.44

Therefore, further research can be done on whether Creative Commons might actually become a self-defeating
idea and alternative ways to radically change the copyright regime. Also, the conditions of copyright, intellec tua l
property and Creative Commons in the third world, the impacts of an extremely strict copyright regime and the
emergence of the copyleft and its impact on the third world demand further empirically oriented research.

41 See generally DUSOLLIER, supra note 44, at 220-39 (elaborating on the relationship between copyright and the public sphere in the
origin and evolution of copyright law). Cited in Supra note 22.
42 See JÜRGEN HABERMAS, The Structural Transformation Of The Public Sphere: An Inquiry Into A Category Of Bourgeois Society

(Thomas Burger trans., MIT Press 1991). Cited in Supra note 22.
43 Supra note 22
44 Ibid. p.291

15
Bibliography
Books

1. Peter Drahos, A Philosophy of Intellectual Property (2001), Darthmouth Publishing Company Limited,
England.
2. Lawrence Lessig, Free Culture (2006).
3. James Boyle, The Public Domain (2008).
4. Free Society: Selected Essays of Richard M. Stallman, (Joshua Gay ed., 2002), Free Software Foundation,
Boston.

Articles, Journals and Websites

1. Minjeong Kim, The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative
Commons Licenses, 13 Journal of Computer-Mediated Communication 187, 209 (2008).
2. Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1998).
3. Liang, Lawrence, Atrayee Mazmdar, and Mayur Suresh. “Copyright/Copyleft: Myths about Copyright”.
4. Séverine Dusollier, The Master’s Tools v. The Master’s House: Creative Commons v. Copyright (2006).
5. Brian Fitzgerald and Ian Oi, Free Culture: Cultivating the Creative Commons (2004), Media and Arts
Law Review.
6. Lawrence Lessig, The Creative Commons, 65 Mont. L. Rev. (2004).

16