Copyright as Social Contract

June 24th, 2006 by driscoll

Today’s keynote panel considered the challenge of building a commons that can accomodate the needs of a diverse groups of creators. Implicit in this conversation is the question of core values. What unifies artists from the Future of Music Coaltion to geneticists working with Science Commons? Amid a lively debate of the criticisms expressed by Prof Elkin-Koren of University of Haifa School of Law, we heard the term “social contract” with regard to intellectual property policy.

In the US, I believe one need look no futher than the Constitution to find a “social contract” for the growth of an intellectual commons. However, as Minister Gil referred to in his address, the 20th century departed from tradition in many respects. Among these errors was a failure to maintain the integrity of this social contract. Creative Commons arose as a response to this failure.

As I listened to Prof Elkin-Koren describe the variety of choice in CC licensing as potentially “self-defeating”, I wondered how differently she might orient her criticism were the social contract changed. 140 million works link back to CC licenses. These works represent creators for whom the traditional, all-rights-reserved protections are not satisfactory. How many more would choose CC if not for its demands of time, energy, interest, and chance?

As I read it, the US Constitution communicates this message: “Creativity and innovation is something we value as a nation. Creators, continue creating. We will protect you.” Does the message of CC communicate a similarly simple commitment? I worry that CC puts the onus too heavily on creators to be their own lawyers.

In Prof Elkin-Koren’s call for a simplification of CC licensing and reduction of choice, I hear a call for a renewal of the social contract. Which nation will first hear this call and update its legal code to reflect this social contract? Where will the burden of finding fair, some-rights-reserved licensing finally be lifted from the creators?

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