P attorneys aren't sure whether many authors and artists will volunteer to make their copyrighted works freely available to the public. But they say Lawrence Lessig's new initiative may be a first step to making copyrighted material more accessible.
Lessig, a professor at Stanford Law School and director of its Center for Internet and Society, has teamed up with other law professors and technology experts to form Creative Commons, a nonprofit organization intended to expand the number of creative works in the public domain.
The founders will announce the initiative today at the O'Reilly Emerging Technology Conference in Santa Clara and expect it to be available to the public in the fall.
"This is a good initiative for certain kinds of content," said IP attorney Ian Ballon, a partner at Manatt, Phelps & Phillips' Palo Alto office. "But as a practical matter a lot of artists rely on getting paid, and this doesn't fully address that."
"I don't think anyone knows if the idea will work," said David Hayes, the head of Fenwick & West's IP group. "But it could lead to a structure for a clearinghouse" where material could be made available in an automated way at a reasonable price.
This could be an alternative, he said, to having content "in the hands of a few powerful copyright holders."
Lessig has long argued that legislation and technology have given intellectual property owners overly broad rights to their works. He has been involved in several court battles to pare back these rights. Most notably he is representing Web site publisher Eric Eldred in a suit challenging the constitutionality of a law that added 20 years to the length of copyrights. The Supreme Court recently agreed to review Eldred v. Aschcroft, 01-618.
Now he's taking a different tack, providing a mechanism to enable copyright holders to relinquish some of their rights. Specifically, Creative Commons will provide Web-based applications that allow an author or artist to specify the terms for making an entire work or portion of a work available to the public.
"Copyright protection has become automatic instead of the exception," said Creative Commons Executive Director Molly Van Houweling. Prior to the passage of the Copyright Act of 1976 and the Berne Convention Implementation Act of 1988, she said one had to file a copyright application to get copyright coverage.
With the Creative Commons mechanism, artists "can choose other than the default of copyright protection," Van Houweling said.
The organization is in the process of drafting licenses that will be posted on the Creative Commons Web site. Licenses may specify, for example, that individuals can copy and redistribute a work for non-commercial purposes or make derivative works as long as others could then copy the new works.
The group also plans to create an intellectual property conservancy -- like a land trust or nature preserve -- through which copyright owners could donate their works.
Creative Commons is led by a board of directors consisting of Lessig, Eldred, James Boyle of Duke University School of Law, Michael Carroll of Villanova University School of Law, Hal Abelson of the Massachusetts Institute of Technology, and Eric Saltzman, executive director of Harvard Law School's Berkman Center for Internet & Society. The group shares space and staff with Stanford's Center for Internet and Society.
