CC 4.0, an end to porting Creative Commons licences?

Last week, Yours Truly attended the 5th edition of the Creative Commons Summit in Warsaw, Poland. This was an impressive event bringing together Creative Commons affiliates and enthusiasts from all over the world.

Anyone who has been following the rise of Creative Commons as an international movement may have noticed that there was a small hiatus between the Sapporo summit in 2009 and this year´s meeting. The break was needed, CC found itself at an interesting and unique position, it had grown from a small licensing project that would try to replicate the success of open source and free software in the creative arena, and it became a global phenomenon with millions of objects available online. CC went from being a niche geeky project to a global standard. This process clearly generated institutional stress, and the community had to stop to gather its thoughts and analyse where to go next.

The difference in both breadth and tone of the summits was striking, and I felt that the Warsaw summit saw CC coming back to its roots. The first summit in Harvard was a small affair, almost a family event. The Rio and Dubrovnik summits were massive, almost a “who’s who” of the open camps. Warsaw was a family reunion, true, a big family reunion, but it was clear that this was a more focused gathering of the core support for CC at an international level. This was a meeting of the very heart of the CC movement, from the large projects to the smallest and newest affiliates, it was humbling to see the energy on display.

While the summit was supposed to act as a gathering of affiliates, there were very big news in store. Undoubtedly, the biggest announcement to come from the conference was the launch of the drafting process for the version 4.0 of the licences (we are currently on version 3.0). There are various important reasons to undertake an update at this point in time, the main one being a need to overhaul the provisions on the sui generis database right, which is currently not covered by the licence. There are also some tweaks needed in language to make the licences more international, and there will be discussions on what can be done to make it easier for large institutions to adopt the licences and release their content under the CC standards. This is personally one of the most needed tweaks; think of governments, international organisms and memory institutions — these are organisations that have important amounts of content and data that would enhance the commons, and if shared under CC licences would allow more data to be freely shared for the benefit of all. Moreover, any institutional adoption brings us closer to wider recognition of CC as an international open licensing standard, and would make it easier for some reticent adopters to recognise the movement. I am thinking particularly collecting societies, which up to this day still constitute a stumbling block in the music arena.

But suggestions have not been devoid of controversy. One of the proposals made at the meeting is that it is very possible that we will finally see an end to the porting experiment. For those unfamiliar with porting, when Creative Commons started, its quick popularity arose the interest of legal scholars and lawyers from all over the world. As the licences were drafted specifically with U.S. law in mind, it was felt that the creation of a network of associates that might port the licences into a local language would be the best way to ensure the enforceability of the documents across jurisdictions. Notice that we are not talking about mere translations, but to take the existing text, translate it, and then make necessary changes required by local legislation. This process was undertaken by local legal experts in the areas of copyright and licensing, creating in my opinion an unprecedented experiment in legal drafting. Here we have a series of documents that have been adapted from one country to the other bringing together an enviable wealth of experience and talent.

By most measures, the porting experiment has been a great success. With version 1.0 of the licences, only two countries undertook the porting process: Israel and Finland. By now, there are CC projects and affiliates in 71 jurisdictions, with 55 of those having conducted a successful porting process. But it is precisely this amazing success what has made the porting process a bloated and unmanageable exercise for a small non-profit organisation like Creative Commons. Each new jurisdiction that joined the movement and decided to port would add a new set of 6 licences for each version, which has meant an uncontrollable growth of the total of licences out there. At the time of writing, there are 550 CC licences, not counting the ones in drafting process. Moreover, it has become clear that the first rush to create a national port is a time-consuming endeavour, and that not all jurisdictions have the resources to continuously undertake it. For example, only half of all jurisdictions have ported their licences to 3.0, with large markets still stuck with 2.0 (e.g. UK). The growth in licensing practices means that CC must spend more money in legal staff to support a more jurisdictions, as each new version will generate another round of harmonisation. Similarly, the threat of incompatibilities between versions cannot be neglected.

However, for me the killing argument is that the vast majority of users are bypassing national ports and using the unported version of the licences. Take the raw linkback data for 23/09/2011; this uses search engine data of how many objects link to any given licence, which gives an indication of percentages of use for each jurisdiction. There were a total of  263,014,105 objects using  CC licences, of which 189,741,280 were using unported versions. This means that 72% of all items released under a CC licence do not make use of the impressive set of more than 500 ported versions. The users are voting with their clicks.

These reasons have prompted Creative Commons to propose that version 4.0 should not be ported, but only translated. This will require a solid draft that should be very international in nature, mostly making use of international treaties and other harmonisation tools. This would be more resource-friendly, but also would be future-proof.

This announcement was met with some animosity from some quarters, and enthusiasm from others. Having participated in two different jurisdictions (3 if you separate Scotland from the UK), I have to admit that I believe porting is untenable in the future, but I understand why some people are uncertain about losing porting altogether. As far as I could tell by listening to those who were against the change, the strongest arguments in favour of maintaining porting are two: community and legal.

The community argument is that the vibrant international community that we saw on display at the Warsaw summit is precisely the result of a heavy porting process, which means that by losing porting, it will be more difficult for new countries to join the CC process. This is certainly the one argument that I find more troubling, but it can also be seen as a glass-half-full scenario. While porting a licence gets the lawyerly juices flowing, it does not a community make. It seems like there are many countries where there is clear community interest in CC, but the lack of legal expertise in the topic means that the community does not develop as it should. If the requirement to port a licence is removed, many organisations could simply join as CC affiliates, enhancing the community.

The legal argument goes something like this: the licences are mostly American in nature, so a national porting process is needed for the licence to be enforceable in the target jurisdiction. I have to admit that I find this a rather weak argument. Firstly, copyright law is highly harmonised internationally thanks to the existence of widely adopted international treaties such as the Berne Convention and the WIPO Copyright Treaty. This does not eliminate national quirks and requirements, but it certainly makes an international licence much easier to achieve if one follows the language and letter of the treaties. Secondly, those tricky topics where there is more international divergence can be worded just to apply in jurisdictions in which these require special rules, e.g. moral rights and database rights. Careful wording, such as the one that already exists in unported 3.0 versions regarding moral rights, would solve most discrepancies. Thirdly, copyright licensing already works quite well without porting. When was the last time you installed a piece of software that had a licence ported to your jurisdiction? If your answer is negative, do you think that licence is invalid? Finally, courts around the world have already been enforcing unported CC versions of their licences (see my presentation on the subject for the Warsaw summit). We have been applying international contracts for millennia, give the courts some credit.

So, while I will be very sad to see porting disappear from a merely selfish reasons (seeing the Costa Rican flag on top of a CC licence is one of the proudest moments of my legal life), I strongly believe that porting has served its purpose, and that we should adopt a model more akin to that present in Free Software with the GPL. The GPL v2.0 is as American a legal document as you will ever find, yet it has been implemented in various jurisdictions (mostly Germany).

So we should be brave and take this as an opportunity to improve the licences and tighten their application. Come join us, the water is warm (or the Kool-Aid is sweet, your mileage may vary).