Copyright is a right that vests with the creator of an original work. The vesting of copyright is automatic so if, say, a person writes an original piece, he or she is immediately deemed to be the holder of copyright in that piece (although there are exceptions, such as in an employment situation).
A person who holds the copyright in a particular work is also entitled to hand over the copyright to another party either in full, or on terms and conditions which the parties agree.
Alternatively, the person may elect to hold on to the copyright but grant to a third party a licence, entitling the third party to use some or all of the rights on certain terms and conditions.
Stanford University Professor of Law, Lawrence Lessig, proposed the idea of Creative Commons in 2001, and it has since been hailed by some as a possible alternative to copyright.
Increasingly, people have been seeking such an alternative because of the view that copyright law is inflexible, its duration is too long (which discourages creativity), and it protects the rights of the media organisations at the expense of those who create the work (as evidenced by the mounting instances of court cases being brought against such organisations).
Ceative Commons is based on a system of licences. It allows creators of intellectual property to structure customised licences which define precisely how their work can be used. These licences are free to register, and such registration is completed in a very simple manner on the internet.
Creative Commons licences have the advantage of being “machine readable”, so when browsing through material on the internet it is immediately possible to establish who the licencee is, and then make contact should it become necessary.
The licences allow work to be used with no conditions at all, or on one or more of the following terms: that credit be given to the creator, that the work be used for non-commercial purposes, and that such work not be altered or transformed.
As stated, copyright law makes provision for licensing of original work. But exclusive licences need to be recorded in writing, which usually requires the assistance of legal practitioners and can be expensive, time-consuming and inconvenient.
In addition, because copyright licences are in writing and not machine readable, difficulties are encountered when a person wants to use a particular work but cannot establish the copyright owner.
It is clear then that Creative Commons offers an innovative and viable alternative to the conventional manner in which copyright licences are obtained. But the system is not a new branch of copyright law — it is merely a system of licensing which takes place within the framework of the existing copyright laws without replacing those laws.
Creative Commons licences are still being developed throughout the world. In South Africa, the first draft of these licences is only now available for discussion purposes.
Because of their simple and generic nature, Creative Commons licences will make it possible for more people to licence their work, especially those with very simple licensing requirements – such as those wishing to licence photographs or articles.
For those with more complicated and specific licensing requirements, such as books and films, traditional copyright licences are still advisable as they are tailor-made to express the exact terms and conditions on which the parties agree to licence their work.
Reggie Manyakara is a candidate attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.