The capabilities of the 'Creative Commons' licence are a threat to readers

For those who don't like the copyright regimes of the world, a new star is dawning: the Creative Commons licence. Championed by American lawyer and philosopher Lawrence Lessig, the Creative Commons is a very liberal licence designed to give creators a different way to publish their work. It bestows many more rights upon the consumer than copyright; but even so, I fear it.

Anyone looking for reasons to listen to Lawrence Lessig rather than me would have little trouble finding them. Lessig is a many-lettered lawyer; I started an English degree that I couldn't afford to finish. Lessig is famous, and his words are read by millions; I'm not and mine aren’t. Lessig has made important contributions to the philosophy of freedom on the Internet; I once read a collection of Nietzsche's works. Lessig is the chair of the Creative Commons, an important contributor to the development of the Creative Commons licence. I can barely find enough time to contribute to the things I must.

And so on.

Still, I'm about to ignore Bill O'Reilly's famous advice (he was a cricketer who played with, but didn't much like, the epitome of Australian cricket fame, Don Bradman). I'm going to – excuse me – piss on a statue.

Even though I have a strong belief in the importance of Open Source Software; even though the Internet is a vital and powerful force in the world, and even though I take a liberal attitude to the copyright I hold over my own writings – I don't like the world the Creative Commons offers.

When people rise up in defence of copyright, they usually do so either because they're speaking on behalf of the powerful owners of copyright, or because they're in the thrall of the arguments of those same people. I'm not: I'm just a small specialist journalist in a small corner of the world.

There's no doubt that copyright, as it is now practised, is flawed. It draws both power and income out of the hands of the people who produce the works, even though those works are so valued by the music industry (for example) that it will sue hundreds of individuals and alienate millions of its own customers, trying to defend itself against the evils of file copying.

The power that large publishers hold is disproportionate to anything they create, in and of themselves; hence Disney's wish to keep Mickey Mouse for another 20 years holds sway in the face of any benefits that shorter copyright periods would offer to the rest of the economy.

Many writers, Lessig among them, have argued that copyright is flawed and, because of the influence of wealthy special interests, deeply corrupted. My defense of copyright is a matter of my own feelings about democratic philosophy, not economics.

I take exception to the Creative Commons licence precisely because it's a licence – and while I am prepared to live with the fact of software licences, and applaud the existence of various forms of Open Source licences for software (the GPL, the BSD, and so on) I don't want a world where one day the practice of licensing is applied to all sharing of information, of any kind.

Today, if I buy a book, I form two relationships. One of those relationships is transient, one endures.

The first relationship is as a customer of a bookstore (and by extension, a printer, a publisher and a distributor), with rights attached to that status. The book has to fit its description to some degree; it has to be of merchantable quality in its manufacture; the people selling it must have the right to sell it; and so on. The first relationship is brief. Once I own that book, it is property. I can do as I please with it. If it offends me, I can burn it. Nobody can even criticise me for doing so; it's my book. I'm not a committee or a band of thugs, I'm not stealing copies of the book to burn, nor making a public statement. The only restrictions placed on what I do with that book are imposed by law.

This brings us to the second relationship, which is not with a publisher, but with the laws we share.

I can't set the type for my own print run and offer that printing for sale. I can't reprint the book under my own name. If I want to reproduce large slabs of copy for some reason, I need permission.

If I break the law, there might be an individual complainant, but my offence is against the laws of Australia. I am not in breach of a contract with a person or company, but with the law. Law is made by a (flawed) democratic process; and if the citizens of a country wish to change their laws, they can.

A licence is a horse of a completely different colour: it’s a contract; a private agreement between parties. Even a liberal contract – which the Creative Commons undoubtedly is – has the quality not of a law governing citizens’ lives, but of an enduring relationship between two individuals. Under copyright, I can own a thousand books, but I have no contractual relationship with anyone, merely an obligation to obey the law. However, under a licence – even the Creative Commons – a thousand books would mean a thousand relationships. Under copyright, my rights to treat the books as property are identical for every book. But if books are licensed, my rights may no longer be standardised or predictable.

That's not all: because a contract cannot supersede the law, the relationship consisting in the licence exists not instead of the normal obligations of copyright, but in addition to them. Even if the conditions of the licence are more liberal than the copyright regime under which they exist; the conditions of the relationship do not alter the fact of its existence.

To cite the Creative Commons licence: “The work is protected by copyright and/or other applicable law. Any use of the work other than as authorized under this license or copyright law is prohibited.”

If I'm buying a book, I don't want an ongoing contract with, and obligation to, its author. I want the book.

In software, Open Source licensing is essentially a Fabian creature. Software licensing predates the GPL; it was an invention of the software industry to try and achieve greater protection than software could then have enjoyed under copyright law. Open Source is based on a licensing approach because it was necessary to ensure that source code, once published, could not then be misappropriated and obscured; or rather, to give the community of users some protection against someone taking source code from the public domain, privatising it, and then trying to impose their ownership on the predecessor product.

But with the application to books of a seemingly benign software-like licence, the Creative Commons has a collateral effect which is evil: it conditions the recipient to accept the existence of a licence in addition to the rights they hold in copyright law. In other words, the Creative Commons licence lets me do more with a book; but paradoxically it does so by diminishing my abstract rights. If I want to read a book published under the Creative Commons, I must accept the licence and obey the law. A new condition is added to my right to read.

In the computer industry, the term “social engineering” describes an act of trickery which yields access to privileged information – such as phoning someone, claiming to be a help desk operator, and asking for their password or account details. There is another way to look at the idea of social engineering: where people with good intentions condition a set of responses which is then easily exploited by the malicious. “Click Yes to Continue” wasn't invented by scam-artists or Internet fraudsters; but once users are accustomed to a certain response, a dialogue box saying “Click Yes to Continue” is easily exploited to advance evil purposes.

In the case of the Creative Commons, the social engineering is accomplished by a very liberal licence. It conditions people to accept the fact of licensing, even though it represents a new, contractual relationship which makes me a smaller man under the law.

Once one set of licence terms is acceptable in the purchase of a book, any other set can be substituted in its place; because many, if not most, citizens lack the time or specialist knowledge required to discriminate between the minutiae of different licences. Well, I don't want my books under licence. If I buy a book, I want it to be property.

The contract – not a particular contract, but any contract – is a very different power relationship from that which exists under copyright. It's an asymmetrical relationship: he who holds the licence also holds the cards. There is no ambiguity about where I stand as the buyer of a book. The author has no hold on me; he can't complain that I put on a funny voice while I read out loud a passage I found absurd. He can't stop a teacher from reading the book to a class. He can't complain that because I find the entire book ridiculous I toss it in the recycling bin. He can't forbid me from sending it in a box to a charity which sells it to a secondhand bookshop which gives it a $50 price tag when they notice that it’s a first edition ... and so on.

A licence is different: it’s a contract. The Creative Commons is a liberal licence, but it's not the only possible licence. Once licensing is an accepted principle, the only debate left is over terms. And because I can't refuse the licence if I want the work, licensing creates an asymmetrical one-to-one relationship which doesn't exist today.

Do licences apply to books now? Yes, between author and publisher. But as a consumer, that has nothing to do with me.

The duration of the relationship is also a worry: when does the licence expire?

Again, it depends. The Creative Commons licence is explicit: it exists “for the duration of the applicable copyright” – which binds the licensee to contract terms which endure (under American law) for 70 years after the death of the author. So in consuming a Creative Commons work, I am bound to the terms of a contract which will probably outlast me.

What if a licence is to a company? It could endure a very long time indeed; and I know of no impediment to an author becoming incorporated, producing all creative works under the auspices of a company, leaving the shares of that company in a will to others, and having those works published under a licence which would outlive the terms of copyright.

If the Mickey Mouse amendments to America's copyright laws were a bad thing, take another look at a world in which literature were licensed rather than copyrighted: ownership of the licence could endure forever.

Finally, there's the matter of jurisdiction. Copyright in Australia is controlled by Australian law, with outside influence coming only from our status as signatory to various international copyright treaties and conventions.

A licence is different. Read a common software licence one day: they all specify jurisdiction, including the court which would hear lawsuits. Again, it may not be the intent of the Creative Commons licence to extend the reach of American law, but it is the effect. If books are published under licence, the author of the book and owner of the licence is free to apply their own terms to that licence. It's a contract; take it or leave it. If you accept the licence, including its requirement that all disputes arising from it be heard in California, the matter is settled. So in accepting a licence over a book, I am accepting an ongoing relationship with its author, which I don’t necessarily want; which might impose conditions I don’t want and which might be more restrictive than the rights I now hold; and which might even bind me to the laws of another country.

All licences are contracts. Nearly all contracts exist not to empower the individual with new rights, but to persuade individuals to trade off their normal rights in the hope of the other party gaining something. So to apply a contract – even a liberal one – where no contract existed before is to pave the way for the destruction of rights. My right to read is not tributary to the kind of licence the author wants to impose.

If you want to know whether another country is a security threat, you assess not its intentions but its capabilities. The Creative Commons licence is like that: it has the best of intentions, but it represents an unintentional threat to my rights as a reader because its capabilities are so great.