If William Shakespeare were working today on Broadway or in London's West End, he would be spending a lot of time with lawyers. The Bard adapted Romeo and Juliet from Arthur Brooke's poem The Tragicall Historye of Romeus and Juliet, which Brooke, in his turn, had based on a French translation by Pierre Boaistuau of various Italian stories.
The history of creative works, whether Romeo and Juliet or the Beastie Boys' "Pass the Mic," is a chronicle of "borrowing" from others. Intellectual-property lawyers might use a harsher word. But the framers of the Constitution always intended to provide owners of creative works with only limited monopolies, ensuring that the public gets the right to fashion new works from old.
Over the years, however, Congress, sometimes at the behest of media companies, has erected immense barriers to derivative works by extending repeatedly both the length and the scope of copyright protection. A copyright holder no longer has to register a new work. Any blog, poet's sonnet or even a child's crayoned drawing now receives copyright automatically. Permission is needed for republishing or excerpting, with limited exemptions for fair use. Copyright in its current form fails to strike a balance between the extremes of allowing total control over every work--"all rights reserved"--and an anarchic system in which pirates steal wantonly without recompense to owners. Overly strong property rights can threaten the Internet as a medium capable of fostering dynamic interchange of ideas.
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In 2001 Stanford University legal scholar Lawrence Lessig set about righting this imbalance by becoming the leading force behind Creative Commons, a nonprofit group that furnishes a much needed middle ground that lets owners give up some but not all of their rights. An author still retains a copyright, but only some rights are reserved by choosing among the dozen or so free licenses, denoted by the Creative Commons's mark, that are available for downloading off the Web. One license permits others to use a work as long as attribution is given. Another gives the right to sample (take a snippet to mix with music or other content) as long as the entire work is not used. Some five million Creative Commons licenses are in use. The BBC plans to license archival material to the British public without a fee as long as it is not used for commercial purposes. The Massachusetts Institute of Technology exploits the licenses to give free access to excellent online course materials. Creative Commons has started a Science Commons effort that will even explore the open licensing of technology contained in some patents. The Public Library of Science already takes advantage of one of the licenses to specify the conditions under which scientific journal articles are made available free of charge.
The Internet, as a universal publisher of sorts, needs to be more than an outlet for commercial interests. Nascent communities of artists, scientists and nonprofits want some way to share and rework one another's intellectual output without the enormous legal burdens that come with increasingly draconian rights management. The entertainment industry has been largely silent on this issue--its idea of innovation having been the launching of lawsuits against 10-year-olds to punish music pirating. In this environment, the introduction of Creative Commons's middle path of "some rights reserved" is surely a welcome arrival.
