What Contracts Can't Do: The Limits of Private Ordering in Facilitating a Creative Commons
Citation: Niva Elkin-Koren (2005) What Contracts Can't Do: The Limits of Private Ordering in Facilitating a Creative Commons. Fordham Law Review (RSS)
Internet Archive Scholar (search for fulltext): What Contracts Can't Do: The Limits of Private Ordering in Facilitating a Creative Commons
Download: http://ssrn.com/abstract=760906
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Summary
Private ordering seems an attractive option given intractability of positive copyright reform. Creative Commons attempts to provide such an option. Paper takes skeptical view of what author considers a worthy pursuit.
CC can appeal to many ideologies, but at the same time lacks a comprehensive vision of info society and clear definition of open.
- Analyzing the legal strategy of Creative Commons reveals the shortcomings of implementing an incoherent ideology through a pro-active strategy of a licensing platform.
- licenses, especially many of them, could increase info cost to anyone seeking to avoid copyright infringement
- many license options congruent with "owners" governing property, reinforcing property as dominant discourse for info regulation
Author describes problems with copyright, especially with expansions of recent decades.
- Copyright law is located at the heart of Creative Commons’ agenda and is viewed as the main obstacle for what is perceived as an ideal world of creating and sharing creative works. Yet, Creative Commons is not a social movement that primarily lobbies for legislative amendments and copyright reform. At its current stage, it does not seek to change the law at all. In fact, its strategy relies upon strong copyrights. It advocates what is believed to be the “original meaning” of the current copyright regime. In this sense, the ideology of Creative Commons is reactionary.
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- Creative Commons fits nicely within the theoretical paradigm of the New Social Movements. Social movements of the post industrial era are described as a form of collective action based in civil society that focuses on struggles for control over the production of meaning and the constitution of new collective identities.
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- Thus, if Creative Commons is proved successful in introducing an alternative convention, it may subsequently change the meaning of the property rule through social norms
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- the potential for subverting the meaning of copyright and for introducing new signaling may not be fulfilled by the current licensing scheme. This is partly related to the ideological diversity and the lack of consensus regarding the tenets of free access and the necessary conditions to achieve it.
Enforcement of ShareAlike is important for licenses to have meaning, but the same rules that make CC licenses (and FLOSS ones) enforceable could make restrictive licenses from corporations more enforceable.
Compatibility is a problem, and CC made it worse.
Points out problem with sustaining contractual created commons over generations, given uncertainties of ownership, transfer.
- The analysis suggests that creating an alternative to copyright © requires standardization. At the ideological level, this would involve relaxing the libertarian sentiment of letting owners rule their property. It would further require efforts to and agree upon the necessary preconditions of free access. Creative Commons would have to trade the sovereignty of owners for the reduction of transaction cost that would enhance access.
