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3 ENCOURAGING THE ECOLOGY OF CREATIVITY 8 CHALLENGES IN CULTIVATING A SHARING CULTURE 9 CREATIVE COMMONS VERSION 3.0 LICENSES - A BRIEF EXPLANATION 15 THE PORTING PROCESS 16 PORTED LICENSE MODIFICATIONS 20 CREATIVE COMMONS PHILIPPINE JURISDICTIONAL LICENSE SAMPLE (CC BY-NC-SA 3.0 PH) 23 PROMOTING THE COMMONS LOCALLY 24 ISUMMIT 2007 26 DEVELOPING A PHILIPPINE COMMONS 27 CC-PH SET TO PARTICIPATE IN THE ACIA: INTERNATIONAL WORKSHOP ON ASIA AND COMMONS IN THE INFORMATION AGE 28 CC PHILIPPINE LICENSE SOFT LAUNCHING AND THE CC 5TH BIRTHDAY PARTY THE PHILIPPINE IT LAW JOURNAL 1 2 THE PHILIPPINE IT LAW JOURNAL EDITORIAL When I joined the Creative Commons Philippine team, Atty. Jaime N. Soriano, the project lead of Creative Commons Philippines, broached upon the idea of coming up with a Creative Commons (CC) issue for the IT Law Journal in the near future. This is the one, and it is now CC licensed. For the months prior and subsequent to the iSummit 2007 conference in Croatia, I wrote draft articles tackling the Commons, some entitled as “OpenEd,” “Keeping public domain content public,” “The debate on the meaning of NonCommercial,” among others, in the usual manner papers are traditionally written, i.e. within the parameters of fair use. An inquiry, as to the distinction between fair use attribution and CC license attribution, was focal in the determination of the current issue’s contents. The question provided a fork, a choice between two approaches: One which would contain articles written in the traditional manner, utilizing fair use, quoting largely CC licensed materials -which would not be different if one would be utilizing “All rights reserved” materials, and which would then conveniently incorporate draft articles already written -- or the one which would contain articles that would emphasize the remixing culture that is made possible by alternative licensing. The latter approach was adopted, since it could provide an illustration of results emanating from the mantra “Share, remix and reuse -legally.” On a minor note, since the issue reverted to square one, even the layout, circa 2004, was overhauled. This issue was timed to be released when the Philippines has already launched its jurisdictional licenses. The Philippine jurisdictional licenses were soft launched during the 5th Birthday Party of Creative Commons (15 December 2007). The public launch was scheduled 14 January 2008. Perhaps, you are receiving this issue because you are currently participating in said event. Considering, however, if such is not the case, we hope that we have the opportunity to meet in a Philippine Commons-organized event, else in an event organized by any institution which supports the commons. --Michael Vernon Guerrero Image: "Coffee to Cocktails" © 2008. Berne Guerrero. Some Rights Reserved. The work is licensed under CC BY-NC-SA 3.0 PH http://creativecommons.org/licenses/by-nc-sa/3.0/ph/. ABOUT THE COVER “Suppressed Creativity?” © 2008. Berne Guerrero. Some Rights Reserved. The work is licensed under CC BY 3.0 PH http://creativecommons.org/licenses/by/3.0/ph/. Although liberality, through alternative licensing, has been extended to remix the image elements into a single design for the cover in time for the formal launching of the Philippine suite of Creative Commons licenses, the artist had, for a moment but later dispelled, certain apprehension on running afoul with a conservative law in the “proper” expression of his patriotism. This work was built upon the works of ([A] for the eight sun rays, or the spokes of a windmill, if one looks at it differently): [1] Akira Komiya (http://www.loftwork.com/user/3256/portfolio), iCommons Lab Report April-May 2007 cover, CC BY 2.5; [2] Youko Nakamura (http:// www.loftwork.com/user/7862/), iCommons Lab Report September-October 2007 cover, CC BY 3.0; [3] RujiRushi (http://www.loftwork.com/portfolio.aspx?cid=4574), iCommons Lab Report March-April 2007 cover, CC BY 2.5; [4] Masakuzu Yamazaki (http:// www.loftwork.com/user/6666/portfolio/), iCommons Lab Report August-September 2007, CC BY 3.0; [5] Go Kato (http://www.loftwork.com/portfolio.aspx?cid=6388), iCommons Lab Report February-March 2007 cover, CC BY 2.5; [6] Kiyomi Saitou (http:// www.loftwork.com/user/3075/portfolio/), iCommons Lab Report November-December 2007 cover, CC BY 3.0; [7] Shohei Honma, iCommons Lab Report May-June 2007, CC BY 3.0; and [8] Sioux (http://www.loftwork.com/ user/1346/portfolio/), iCommons Lab Re[prt July-August 2007 cover, CC BY 3.0); all courtesy of Loftwork (http://www.loftwork.com); ([B] for background watermark mosaic): [1] Joi Ito. "Fred Benenson". http://flickr.com/photos/joi/551780005/ CC BY 2.0; [2] Nathaniel Stern. "untitled 8" http://flickr.com/photos/nathanielstern/543692306/ CC BY 2.0; [3] Carlos Correa Loyola. "Lessing after his keynote (I)". http://flickr.com/photos/calu777/556034204/ CC BY 2.0; [4] Franz Patzig. "CC Birthday Party Berlin". http://flickr.com/photos/franzlife/2115710741/ CC BY 2.0; [5] Joi Ito. "Ovation." http://flickr.com/photos/joi/554971968/ CC BY 2.0; [6] Franz Patzig. "CC Birthday Party Berlin". http://flickr.com/photos/franzlife/2116594556/ CC BY 2.0; [7] Carlos Correa Loyola. "Latinamerican iCommoners (II)". http://flickr.com/photos/calu777/557770195/ CC BY 2.0; [8] CreativeCommoners/Creative Commons - SF HQ. “DSC03543.” http://www.flickr.com/photos/creativecommons/559583784/ CC BY 2.0; [9] Joi Ito. "Cory Doctorow". http://www.flickr.com/photos/joi/549393610/ CC BY 2.0; [10] Franz Patzig. "CC Birthday Party Berlin". http://flickr.com/photos/franzlife/2116460846/ CC BY 2.0; and [11] CreativeCommoners/ Creative Commons - SF HQ. "Eva's new friend". http://www.flickr.com/photos/creativecommons/644971829/ CC BY 2.0; and ([C] for text box watermark): [1] Scott Beale / Laughing Squid. http://laughingsquid.com/ "Creative Commons Salon". http://flickr.com/photos/ laughingsquid/398474123/ CC BY 2.0; [2] Karl Jonsson. "C-shirt presentation" http://www.flickr.com/photos/karljonsson/ 552880076/ CC BY 2.0; [3] Irina Slutsky. "happy birthday creative commons " http://www.flickr.com/photos/irinaslutsky/ 326625311/ CC BY 2.0; and [4] Tvol / Timothy Vollmer. "Creative Commons 5th Birthday Party, San Francisco". http:// www.flickr.com/photos/sixteenmilesofstring/2117170451/ CC BY 2.0. PDF modified to resolve license incompatibilities in the original. THE PUBLICATION The Philippine IT Law Journal is the official publication of the e-Law Center and the IT Law Society of the Arellano University School of Law. Contributions to the Journal express the views of their respective authors and may not necessarily reflect those of the University. BOARD EDITORIAL BOARD CHAIRMAN Atty. Jaime N. Soriano, CPA, MNSA LAYOUT Atty. Michael Vernon M. Guerrero The IT Law Journal Editorial Board may be reached at the e-Law Center, 2/F Heilbronn Hall, Arellano University School of Law, Taft Avenue corner Menlo Street, Pasay City 1300 Metro Manila Philippines. Unless otherwise provided, this publication is licensed under Creative Commons Attribution 3.0 Philippines license. http:// creativecommons.org/licenses/by/3.0/ph CREATIVE COMMONS ENCOURAGING THE ECOLOGY OF CREATIVITY This abbreviated article was part of a 13-page document, entitled “Creative Commons: Encouraging the ecology of creativity (2007)” acquired from the Creative Commons International office in Berlin on 23 July 2007. Certain footnotes were included to provide additional information about certain recent events. http://www.creativecommons.org/licenses/by/3.0/ Creative Commons’ Mission Creative Commons' mission is to enable the legal sharing and reuse of cultural, educational, and scientific works. To this end, it offers free and easy-to-use tools to creators and the public to assist them in harnessing the creativity that new technologies make possible - a read/write culture in which we can engage with the content that surrounds us, as distinct from a read-only culture in which we can only passively receive content. The Problem Creative Commons Seeks to Address Creative Commons was founded in 2001 to address the problem: on the internet there's no way to "use" a work without simultaneously making a "copy." This implicates copyright law -- the law that grants creators exclusive rights to control certain activities in relation to their work. Due to the nature of modern technologies, people are connected in ways never before possible. Now the public can distribute works in a variety of formats of a high, and often, professional quality, and can work collaboratively across boundaries of time and space. In addition, digital technologies offer new ways to create, share and remix new, derivative, and collective works. All of these activities prejudice the exclusive rights of the copyright owner. As a result (and, of course, subject to fair use), any digital or online use of a work could be said to first require permission. And it is this feature (or bug, depending upon your perspective) that Creative Commons was formed to address. Creative Commons provides creators with a simple way to say what freedoms they want their creative works to carry- to say that they welcome people making some of the uses of their work that new technologies make. This makes it easy for others to share or build upon creative work. Creative Commons makes it possible for creators to reserve some rights while licensing others to the public, hence its mantra “some rights reserved”; as opposed to the default “all rights reserved” level of copyright protection that requires you to ask permission first. In this way, Creative Commons offers private voluntary tools for creators to adopt to create a public good - a pool of cultural, educational, and scientific content that can be legally and freely accessed, used, and repurposed. The Creative Commons Project "Culture Commons" As mentioned above, Creative Commons was incorporated in 2001 as a non-profit organization. It first offered its tools to the public in December 2002. Since its inception, it has worked on its "Culture Commons" project, which is designed to expand the pool of creative and educational content that is free for anyone to use, reuse and repurpose. However, soon after the public release of its tools, it became apparent that Creative Commons needed to work to make these tools relevant to people in different jurisdictions and from different cultures. To this end, it established in 2003 an international license porting projectCreative Commons International (CCi). Creative Commons International CCi works to "port" the core Creative Commons licenses to different jurisdictions around the world. The "porting" work involves both linguistically translating the licenses and legally adapting it for the particular jurisdiction in question. This work is lead by volunteer teams in each jurisdiction who are Image: "Remix." © 2008. Berne Guerrero. Some Rights Reserved. The work is licensed under CC BY 3.0 PH http://creativecommons.org/licenses/by/3.0/ph/. Built upon the works of [1] Beth Kanter (cambodia4kidsorg). "What A Second Grader Knows About Creative Commons." http://www.flickr.com/photos/cambodia4kidsorg/2042494952/ BY 2.0 Generic. http://creativecommons.org/licenses/by/ 2.0/deed.en [2] Peter Shanks (BotheredByBees). "CC swag XI". http://www.flickr.com/photos/botheredbybees/2101568605/ BY 2.0 Generic. http://creativecommons.org/licenses/by/2.0/deed.en [3] Emil Alviola. "scratch-this". http://www.flickr.com/photos/21328364@N06/2070594652/ BY 2.0 Generic. http://creativecommons.org/licenses/by/2.0/deed.en and [4] Creative Commons "About" text. http://creativecommons.org/about/ CC BY 3.0 Unported http://creativecommons.org/licenses/by/3.0/ THE PHILIPPINE IT LAW JOURNAL 3 4 THE PHILIPPINE IT LAW JOURNAL committed to introducing CC to their country, and who consult extensively with members of the public and key stakeholders as part of the porting process. Once the main porting work has been completed, CCi continues to collaborate with the international affiliates to maintain the licenses and adapt later versions of the licenses, to disseminate information about the licenses, and to share responsibility for the conduct of legal research. In this way, CCi works to maintain an international license architecture and an international network of legal experts. As CC licenses were "ported" to different jurisdictions around the world, Creative Commons became acquainted with many“different communities that were committed to the ideas and the practice of a commons. As it got to know these communities better, it realized that many fell outside of the strict boundaries of Creative Commons licenses and tools. To support and connect this community, it realized that a new project was necessary -- iCommons. iCommons The mission of iCommons is to build a global movement that would embrace and extend the infrastructure of freedom. Launched in 2005, iCommons works to support and promote the activities of the global commons community, a community that can extend beyond just Creative Commons project leads, to include CC activists and CC license users to include Wikipedians, A2K communities and free software and free culture activists, to name a few. Already iCommons has brought together representatives from this community as [1] part of the recent iCommons Summit held in Rio de Janeiro in June 2006. At the Summit, new plans for projects and collaboration were forged. Science Commons Launched in early 2005, Science Commons is designed to extend the approach of enabling sharing and collaboration into academia and the sciences. The Science Commons project is based on the belief that science and education depend on the ability to observe, learn from, and test the work of others. Science Commons works to apply the Creative Commons model of standardized legal agreements and simple technical tools to build a "science commons." The Creative Commons Tools Creative Commons offers a suite of legal and tech tools free to the public for them to use. Creative Commons licenses [1] both verbatim and derivative use for both commercial and noncommercial purposes and places no requirements on the licensing of derivatives, provided attribution is given. The most restrictive is the Attribution-NonCommercialNoDerivatives license which permits only verbatim reproduction and distribution for noncommercial purposes, provided that attribution is given -- essentially, noncommercial file sharing. Once a person selects the license that matches their preferences, they receive the license expressed in three different formats: (i) the human-readable Commons Deed which sets out the key license elements and contains human readable license buttons; (ii) the lawyerreadable Legal Code that contains the actual license; and, (iii) the machinereadable Resource Description Framework metadata that describes the key license terms and is then searchable by the customized "find" technologies. Nothing in this design is intended to modify, or qualify, in any way the law of "fair use" or fair dealing." Creative Commons licenses add either freedoms or security beyond those provided by "fair use" and "fair dealing." They are not intended to clarify or enumerate the contours of "fair use" or "fair dealing." Internationalization of CC Licenses As of September 2006, CC licenses have been ported to 33 jurisdictions around the world; including Argentina, Brazil, China, Croatia, Denmark, Israel, South Korea, Mexico, South Africa and Spain. With the launch of the CC licenses in South Africa in June 2005, Creative Commons licenses are now offered in every populated continent. CCi is continuing to work with new jurisdictions to add to Creative Commons global legal network.[2] Creative Commons licenses provide a simple way for owners of copyright to mark their work with the freedoms they intend it to carry. These freedoms are of two types -- the freedom to share, and the freedom to remix -- and of course, the two freedoms can be combined. Users can also limit these freedoms in three significant ways -- first, by restricting commercial uses, and second, by restricting any derivatives, or third, if derivatives are allowed, by requiring that they be licensed in the same way. These elements combine to produce six different licenses. The least restrictive is the Attribution license which authorizes [2] The version 3.0 generic licenses are: • Attribution 3.0 Unported: Available at http:// www.creativecommons.org/licenses/by/3.0/ • Attribution-NonCommerical 3.0 Unported: Available at http:// www.creativecommons.org/licenses/by-nc/3.0/ • Attribution-ShareAlike 3.0 Unported: Available at http:// www.creativecommons.org/licenses/by-sa/3.0/ • Attribution-NoDerivatives 3.0 Unported: Available at http:// www.creativecommons.org/licenses/by-nd/3.0/ • Attribution-NonCommercial-ShareAlike 3.0 Unported: Available at http://www.creativecommons.org/licenses/by-nc-sa/3.0/ • Attribution-NonCommercial-NoDerivatives 3.0 Unported: Available at http://www.creativecommons.org/licenses/by-ncnd/3.0/ As of early January 2008, forty three (43) jurisdictions (Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, China Mainland, Colombia, Croatia, Denmark, Finland, France, Germany, Greece, Hungary, India, Israel, Italy, Japan, Luxembourg, Macedonia, Malaysia, Malta, Mexico, Netherlands, New Zealand, Peru, Philippines, Poland, Portugal, Serbia, Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland, Taiwan, UK: England and Wales, UK: Scotland, and the United States) have released their jurisdictional licenses. On the other hand, eight (8) jurisdictions (Hong Kong, Ireland, Jordan, Nigeria, Puerto Rico, Romania, Thailand, and Ukraine) are currently in the process of license porting. Finally, there are also eleven (11) upcoming jurisdictions listed (Bangladesh, Ecuador, Egypt, Guatemala, Norway, Singapore, Tanzania, Tunisia, Turkey, Venezuela, and Vietnam). In March 2006, the enforceability of Creative Commons licenses was tested before a court in Amsterdam. The commercial publisher of a magazine used photos of Adam Curry, a well-known podcaster and former MTV VJ, from his Flickr account that were CC-licensed. The court held that the publisher had violated both the "Attribution" and "NonCommercial" license restrictions and failed to properly identify that a Creative Commons license applied to the images. This decision is an important first step in demonstrating the efficacy of CC licenses in different jurisdictions around the world.[3] The "Find" tools Tapping into the machine-readable expression of the Creative Commons licenses, Creative Commons worked with key technology companies to develop search engines that read CC-metadata. In 2005, both Yahoo! and Google developed search engines that filter searches to find only Creative Commonslicensed works according to their license terms. These search filters are now included in the "Advanced Search" page of both search engines and also Creative Commons' own " CC Search." These search tools make it easy for members of the public to find content that is available under a Creative Commons license, by license type, and to enjoy the benefit of greater access to and greater freedom of use of CC-flexibly licensed content. [4] In addition to Yahoo! and Google's customized search, the popular online photo community Flickr introduced the ability to search through some of the 18 million CC-licensed images hosted on Flickr; and, BIipTV, an online video site, [3] also enabled search of its CC-licensed videos. We have added these searches to the "CC Search" page to encourage the development of more content-specific CC-customized searching. The "Publish" tool Creative Commons developed a desktop client -- ccPublisher -- that enables easy publishing of content to the Internet. This tool was developed in response to the realization that many people who wanted to publish online, lacked the resources and knowledge to do so. ccPublisher is an easy-to-use "drag and drop" tool that facilitates marking content with a Creative Commons license and uploading of that content to the location of the uploader's choosing; the default upload location is the Internet Archive, which offers free hosting. ccPublisher is cross-platform compatible and its code is licensed under the CC-GNU General Public License so that anyone can adapt the tool for their own content uploading systems. ccPublisher has also been internationalized so that the user interface appears in languages other than English. In a groundswell of community support, five language translations were included in the initial release, all translated by community members in a period of two weeks. Currently, ccPublisher is available in English, Chinese (Taiwan), Croatian, Dutch, Polish and Spanish. The Collaboration Tool To facilitate collaboration and allow people to see the interrelationship between creativity and re-creativity, Creative Commons developed ccMixter. ccMixter is a site that invites creators to exercise their rights to rip, mix and mashup under those Creative Commons licenses that allow derivative works and sampling. The site enables artists to see who has remixed their work and to display those tracks that they themselves have remixed in creating their own music. In this way, people can track the genealogy of creativity because ccMixter tracks the relationship between sampled tracks, allowing people to trace the history and referencing between music and encouraging further remixing and reuse. Currently, ccMixter hosts around 5,000 tracks of which about half are remixes. To extend the collaborative potential of ccMixter beyond the site, Creative Commons released the engine of the software that powers the site as "ccHost." ccHost has been developed and extended from its initial use as ccMixter so that it applies to all media types, whilst retaining the key strengths of ccMixter - namely allowing for content to be hosted, commented on, and remixed in such a way as to show the interrelationship between it. Creative Commons have engaged in this development work in order to make it easier for others to share and remix all content types. In 2007, thanks to its extension, ccHost has grown from the engine that powers ccMixter.org into a community-powered, self-sustainable, and award winning Open Source project that is used by Open Clip Art Library (www.opencli-part.org), Open Source Cinema (www.opensourcecinema org), ccMixter South Africa, the Netherlands-based Simuze.nl and others. In addition, several educational projects are installing ccHost to support and enable the sharing of teaching material. In keeping with our dedication to building a global digital commons, version 3.0 of ccHost adds full localization support for In late September 2007, a lawsuit was filed by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult, and which was posted to Flickr under a CC-Attribution license. The parents of the minor complained that Virgin violated their daughter's right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer was also a plaintiff, and was complaining that Creative Commons failed "to adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use." Individuals from the commons argue that the inclusion of Creative Commons in the lawsuit was improper as the CC licenses don't purport to deal with rights of privacy. Nevertheless, in late November 2007, the plaintiffs in the case voluntarily dismissed Creative Commons from that lawsuit. This was a recognition by the plaintiffs' counsel that the [4] laws of Texas and the United States give the plaintiffs no cause to sue Creative Commons. For more details, see Linksvayer, Mike. "Creative Commons Voluntarily Dismissed from Lawsuit (http:// creativecommons.org/press-releases/entry/7865); Lessig, Lawrence. "From the Why-a-GC-from-Cravath-is-great Department: The lawsuit is over." (http://lessig.org/blog/2007/11/ from_the_whyagcfromcravathisgr.html); and Linksvayer, Mike. "Lawsuit Against Virgin Mobile and Creative Commons – FAQ" (http:// creativecommons.org/weblog/entry/7680) In December 2007, Mahalo (http://mahalo.com/), the "human powered search engine," announced that they will be integrating CC BY-NC licensing into their search index, making the content reusable for noncommercial purposes. See Parkins, Cameron. "Mahalo Integrates CC Licensing." (http://creativecommons.org/weblog/entry/7905) THE PHILIPPINE IT LAW JOURNAL 5 6 THE PHILIPPINE IT LAW JOURNAL languages around the world including Portuguese, Chinese (traditional and simplified) German, French, and Dutch. ccHost is available under the CC- GNU General Public License. In August 2006, we were thrilled to learn that ccHost was awarded the Linux World Product Excellence Award for "Best Open Source Solution". The Creative Acheivements to Date Commons important cultural contributions that flexibly licensed content can enable. We offer examples from music, film and education in the items below. Music - Nimrod Lev and Rhythm Beating Silence: Nimrod Lev is a well-known and award-winning Israeli singer/song-writer. He is one of the rare musicians who "made it" - he was signed to Israeli media giant Hed Artzi, was featured prominently on Israeli radio and MTV, and had a huge commercial hit with the song "That's All the Magic." But Lev felt exploited by his label who controlled his music and didn't fairly share its financial rewards. As a result, Lev chose to leave the conventional music industry and use the Web to freely and independently distribute his music. In an interview with the popular Israeli news Web site Nana, Lev stated: "Do you know an Israeli artist who turned rich from selling their CDs? I don't. These record companies and various federations represent themselves and not us, and as a result we see almost no money. If they are going to fight the file sharers, they should not do it on our backs, and definitely, not in our names..." I believe that the accessibility to music is the basic right of each person, and we must fight for its preservation." These days, Lev and his band, Rhythm Beating Silence, use Creative Commons licenses for their music, videos, and art. The trio capitalizes financially on the online viral success of their creativity by playing shows and working on commissioned projects. The band, which is highly concerned with making works of art and artists from culturally isolated countries more accessible to the international public, says that it has been able to attract more fans than ever (including many in countries that would not have been open to them as members of the conventional Israeli [6] music industry) as a result of using an open, CC-based approach to distribution. Film - Teach: In 1999, director Davis Guggenheim (who recently also directed An Inconvenient Truth) and producer Julia Schachter created a film chronicling the experiences of teachers in the Los Angeles Unified School District. The filmmakers created two powerful documentaries: the Peabody Awardwinning The First Year and Teach -- which is a short film created to attract talented and passionate people to the teaching profession. But after a few years, Guggenheim and Schachter realized that while a fair number of people had seen their film, there was still an enormous audience who hadn't. They also realized that there was a free and easy solution: the Web. So, in February 2006, Guggenheim and Schacter made Teach available under a Creative Commons AttributionNonCommercial-NoDerivatives license and offered the film online to the public for free. At a live screening in San Francisco hosted by Creative Commons, the filmmakers explained that the CC license was the perfect tool for artists looking to have their work be more freely available to the world. After all, Guggenheim noted, the whole point of making documentaries-which there is generally a limited market for- is to have them be seen by as many people as possible. This is especially true with Teach, he continued, as it was essentially designed to be a recruitment film for teachers. Education - MIT Open CourseWare: [6] MIT's OCW project is designed to provide free access to the prestigious university's course materials for people around the world. It is a Web-based electronic publishing initiative with the goal of putting materials from virtually all of MIT's undergraduate and graduate courses online and under the CC Attribution- Over the past 5 years, Creative Commons has witnessed a phenomenal growth in license adoption, an array of high-profile license adopters and important relationships with prominent technology companies. Together these developments have established Creative Commons licensing as part of the dialogue about online rights regulation and integrated our tech tools into key parts of the digital infrastructure. License Adoption One year after Creative Commons licenses were released to the public, in December 2003, Creative Commons counted 1 million linkbacks to licenses. By December 2004 there were 16 million linkbacks to licenses. By December 2005, this number climbed to 45 million linkbacks. In June 2006, this number has grown even more exponentially with 140 million Iinkbacks recorded. [5] Stories of License Adopters In addition to a phenomenal growth in the quantity of license adoption, we have also learned of incredible stories of how Creative Commons licensing has assisted authors and has enabled more flexible use of copyrighted material. High-profile license adopters include David Byrne and Brian Eno, who CC-licensed their album "Bush of Ghosts" and Pearl Jam who CClicensed a music video. In addition to these well-known adopters, we have also seen experiences that demonstrate the [5] Creative Commons statistics were shared by Giorgio Cheliotis during the iSummit presentation during "Legal Day" in Dubrovnik, Croatia. His main findings are summarized in his website (http:// hoikoinoi.wordpress.com/2007/07/02/cc-stats/) For similar information, see Linksvayer, Mike. "“creative commons” percentage by top level domain." 15 October 2007. (http://creativecommons.org/ weblog/entry/7741); "Taking Stock of the Creative Commons Experiment." 2 October 2007 (http://creativecommons.org/weblog/ entry/7701); and "Creative Commons statistics@iSummit 2007." 28 June 2007. (http://creativecommons.org/weblog/entry/7551) MIT’s OpenCourseWare (OCW) initiative, first announced in 2001, has grown from a 50-course pilot to a site that includes virtually the entire MIT undergraduate and graduate curriculum. It recently passed the 1,800-course mark. See Vollmer, Timothy. "MIT OpenCourseWare Publishes 1,800th Course." 8 December 2007. (http:// creativecommons.org/weblog/entry/7889). Subsequently, Yale College announced Open Yale Courses (http://open.yale.edu/courses/), thereby making a collection of Yale courses freely available online. See Vollmer, Timothy. "“Open Yale Courses” Debuts Online." 11 December 2007. (http://creativecommons.org/weblog/entry/7895) NonCommercial-ShareAlike license by 2008. Since its launch in 2002, MIT OpenCourseWare has posted 1,285 sets of course material from 33 disciplines online. Visitors to the site come from over 200 countries. Significantly, the Creative Commons license used by MIT offers a free and easy way for MIT course materials to be translated into other languages and customized“for local context. Says one OCW user in Azerbaijan: "This is a wonderful initiative, something I've been dreaming about! It gives great opportunities for studying new things and improving my current education. Commercial distance education is too expensive for people in the country where I live, but what you did make: quality education really available." Technical Implementation Embedding the option of choosing a Creative Commons license into the technical infrastructure of the architecture and applications of the Internet is a key part of realizing our mission. Adding to the success of the search tools developed by Yahoo! and Google, we have also witnessed recently another important implementation. Microsoft released the Creative Commons Add-in for Microsoft Office in June 2006. This software tool enables the easy addition of CC licenses to works created in Microsoft Office Word, Microsoft Office Excel, and Microsoft Office PowerPoint. The tool is available free of charge at Microsoft Office Online and will enable the 400 million users of Microsoft Office around the world to easily select Creative Commons licenses when they are directly working in an Office program. [7] Once the Creative Commons Add-in is installed, the option to choose a Creative Commons license is available from the "File" drop-down menu. Upon selecting the CC option, the user is presented with the standard Creative Commons license generator and can select the license of [7] their choosing. Once the license has been chosen, the tool adds the Creative Commons logo, the name of the selected license, and a link to the license's terms to documents created with Microsoft Office. The first document to be CC-licensed using this tool was the text of Brazilian Minister of Culture Gilberto Gil's iCommons Summit keynote speech. The speech was made available in both English and Portuguese. The Important Work Still To Do The work that Creative Commons has done over the past five years has been an enormous success. But there is much more to do. It has gone from the basement at Stanford Law School to the cover of Wired magazine, collaborated with key industry players and featured as part of government delegate submissions before the World Intellectual Property Organization. Now that Creative Commons is established as part of the debate and the practice surrounding the regulation (both private and public) of creative, educational and scientific materials, it faces perhaps its biggest challenge of consolidating on that initial success and demonstrating the benefit of "free culture." Its work over the coming years will focus on the following areas: • Building a stable "free culture" infrastructure: Creative Commons, of course, is not the only entity crafting licenses designed to dedicate certain copyrights to the public. In addition to its work, the Free Software Foundation's "Free Documentation License" has become an important free culture license, as it is the framework for Wikipedia. In addition, the BBC's Creative Archive License, and the French Art Libre license have become important elements in the "free culture" ecology. Unfortunately, these different licenses have not been designed to interoperate: content licensed under one can't be reused under another. And this incompatibility will increasingly threaten the potential that these different projects all seek to realize. To help resolve this problem, Creative Commons will lead a project to establish an infrastructure for interoperable licenses. The aim will be to enable creative work licensed under sufficiently similar licenses to move between those licenses. That process will be directed by a board independent of, but started by, Creative Commons. • Extending the base we've already built: In addition to these new projects, Creative Commons will of course continue what it has been best at: increasing the breadth of high-profile projects that it can use to showcase the benefit of CC legal and technical tools. It has proven that when it sets the example for how content can be effectively and, on occasion, lucratively shared and reused, people follow suit. It needs to develop and publicize new success stories around video, educational content, images and music. It needs to continue to work with more software companies to get CC options built into the Web and desktop tools that people use everyday. It has seen, through the example of Flickr and soon, no doubt through the example of Microsoft, that people are more than eager to use our licenses when the option to do so is easy and intuitive. • Expanding work in education: A key part of our future activities includes engaging with educators and education groups/projects to ensure that much more educational and instructional content is available to people at all levels of education and across the geographic and economic spectrum. Creative Commons licenses provide a simple way for this to happen; now Creative Commons has to make sure that the people building tools and resources know how to properly integrate CC into their projects. [8] Through these important projects, Creative Commons can continue to revive the principles of balance, compromise, and moderation both online and offline and, in doing so, promote and enable participatory culture. Its ongoing work will allow Creative Commons to consolidate on its previous successes and demonstate the importance of "free culture." A similar add-in was made available for OpenOffice. See Yergler, Nathan. "Integrated Licensing in OpenOffice.org." 14 November 2007. (http://creativecommons.org/weblog/entry/7819). [8] ccLearn is a division of Creative Commons which is dedicated to realizing the full potential of the Internet to support open learning and open educational resources. See http://learn.creativecommons.org/ THE PHILIPPINE IT LAW JOURNAL 7 8 THE PHILIPPINE IT LAW JOURNAL ALTERNATIVE LICENSING CHALLENGES IN CULTIVATING A SHARING CULTURE BY MICHAEL VERNON GUERRERO The About page of the Creative Commons website [1] sums up the direction towards creative public collaboration well: Too often the debate over creative control tends to the extremes. At one pole is a vision of total control — a world in which every last use of a work is regulated and in which “all rights reserved” (and then some) is the norm. At the other end is a vision of anarchy — a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation. Balance, compromise, and moderation — once the driving forces of a copyright system that valued innovation and protection equally — have become endangered species. Creative Commons is working to revive them. We use private rights to create public goods: creative works set free for certain uses. Like the free software and open-source movements, our ends are cooperative and community-minded, but our means are voluntary and libertarian. We work to offer creators a best-ofboth-worlds way to protect their works while encouraging certain uses of them — to declare “some rights reserved.” Creative Commons aspires to cultivate a commons in which people can feel free to reuse not only ideas, but also words, images, and music without asking explicit permission — because permission, through alternative licensing and within the terms clearly provided, has already been granted to everyone.[2] [1] [2] [3] Nevertheless, there may exist some aversion in certain individuals against the utilization of complex concepts in the fine details of the permission granted, allegedly fit only for a lawyer to read. Be as it may, oversimplification of the permission granted has its own evil to defeat. A pre-provided permission of “You may use and distribute,” without further details in the articulation of the licensor’s intent, for example, does not provide a clear parameter in the exercise by the licensee or user of the permission actually granted. Neither the inadvertent allowance for misconstrued intention nor a creeping culture of infringement tolerance seem to be viable alternatives to encourage sharing, creativity and free culture. Yet still, it is also not avoidable that there could be certain criticism from individuals or sectors on the apparent development of a burdensome “licensing culture” that stifles creativity and free culture.[3] The resulting perception about such apparent development is understandable inasmuch as Creative Commons licenses [4] are not the only licenses utilized to determine the terms of use of shared works, and that frustration could come in when the issue on the interoperability of Creative Commons licenses with other licensing options like Design Science License,[5] Free Art License,[6] Free Music Public License,[7] Open Content License,[8] Open Music License, [9] Open Publication License, [10] and GNU Free Documentation License, [11] come into focus, especially when components towards a blended result come from sources shared under different licensing [8] [9] [10] [11] [12] regimes. It is thus a major development when, for example, last December 2007, Wikimedia Foundation announced -- in seeking to respond responsibly to longstanding community concerns about issues of compatibility between the GNU Free Documentation License and the Creative Commons CC-BY-SA license, as well as to continue longstanding traditions of strong community input and control over major decisions affecting the projects --its resolution requesting the modification of the GNU Free Documentation License in the fashion proposed by the Free Software Foundation to allow a possible migration by mass collaborative projects to the Creative Commons CC-BY-SA license, if so desired by the community.[12] Although it is unclear whether the Wikipedia community, for example, would eventually support a shift to CC-BY-SA from GFDL in the future, what is truly significant in this development is the agreement to make licenses compatible to encourage the growth of the commons, or “toward a world in which the free content world is not fractured by license incompatibility.”[13] In the end, notwithstanding differences in opinions as to the proper direction or appropriate solution towards a freer flow of creativity, if not of information, and notwithstanding licensor’s preference or loyalties as to which is the better license to use, there remains a common orientation towards alternative means to empower individuals and to benefit society. A long road is provided ahead of us to tackle the challenges relating to legal sharing, and to take the opportunities to contribute to each other’s lives. [4] [5] [6] [7] http://creativecommons.org/about/ http://wiki.creativecommons.org/Legal_Concepts Dizon, Bong. "The Burdens of License Culture: Why Even Copyleft and Creative Commons Licenses Do Not Ensure Free Culture." 14 May 2006. (http://lawnormscode.sync.ph/?p=18) http://creativecommons.org/about/license/ http://www.gnu.org/licenses/dsl.html http://artlibre.org/licence/lalgb.html http://www.fmpl.org/ [13] http://opencontent.org/opl.shtml http://openmusic.linuxtag.org/showitem.php?item=209 http://opencontent.org/openpub/ http://www.gnu.org/licenses/fdl.html Resolution: License Update. WikiMedia Foundation. 1 December 2007. (http://wikimediafoundation.org/wiki/Resolution:License_update) Linksvayer, Mike. “Progress on license interoperability with Wikipedia.” 1 December 2007. (http://creativecommons.org/weblog/entry/7876) CREATIVE COMMONS INTERNATIONAL CREATIVE COMMONS VERSION 3.0 LICENSES A BRIEF EXPLANATION BY MIA GARLICK Mia Garlick was the General Counsel of Creative Commons. Mia received her Bachelor of Arts and Bachelor of Laws from the University of New South Wales in 1998, and her Masters of Law from Stanford Law School in 2003. She is admitted to practice in New South Wales, Australia, and in California, USA. The article is found online at http:// wiki.creativecommons.org/Version_3. http://www.creativecommons.org/licenses/by/3.0/ Since April 2005, Creative Commons has been working on versioning up its core licensing suite. The Creative Commons licenses [1] serve as an important vehicle by which many millions of creators clearly signal to the world that they are happy for members of the public to engage in some of the exciting new uses of content that are made possible by digital technologies. Using a CC license, an artist can, for example, invite the public to share their work or mash it up (on certain conditions). A distinctive feature of CC’s licensing infrastructure is ensuring that it is comprehensible to both humans (the Commons Deed) and machines (the metadata) as well as enforceable in a court of law (the Legal Code, which is the actual license). But another important aspect of the CC licensing system is to ensure that it respected by the community of people who apply our licenses to their content, who use CC-licensed content and who are committed to enabling free culture. Creative Commons regularly invites and receives feedback about its licenses and how they may be able to be improved to better serve the people who use them and who use CC-licensed content. Obviously, all things can be improved with the benefit of hindsight and experience; also, the environment within which CC licenses are used is always changing. When CC first released its licenses, for example, the use of video and video-sharing sites had not yet been deployed, let alone used to the extent they are today. [1] We released version 1.0 of our licenses in December 2002 [2]. Like software releases, we track the different licenses by version. In May 2004, we versioned to 2.0 [3] and then made a minor tweak to the attribution clause in June 2005 [4] and versioned to 2.5. Now, CC is versioning to 3.0. We announced a timetable for versioning to 3.0 back in May 2006 [5]; and we have followed the consultation process in the timetable even though the schedule itself has been considerably delayed while we take account of all of the different interest groups that are relevant to CC licenses. Background to Version 3.0 The process of versioning to 3.0 began back around April 2005 as part of discussions with Debian [6] and the Massachusetts Institute of Technology (MIT)[7] about ways to improve the clarity of our licenses. Although discussions with Debian and MIT initiated consideration of a new license version, ultimately, version 3.0 grew to be about much more than these two projects — it focused on internationalizing the “generic” license and international harmonization of the CC licenses. Additionally, it expanded to encompass Creative Commons' long-held vision [8] of establishing a compatibility structure to allow interoperability between different flexible content copyright licenses. Debian Debian describes itself as “an association of individuals who have made common [5] cause to create a free operating system” [9] and the volunteer group has worked together to create an operating system called Debian GNU/Linux. The project and all developers working on the project adhere to the Debian Social Contract [10]. The Debian Free Software Guidelines (DSFG) [11] form part of the Debian Social Contract and define the criteria for “free software” and so what software is permissible in the distribution. One part of the Debian community is debian-legal [12] — a mailing list whose members provide “guidance for the Debian project on, among other things, the acceptability of software and other content for inclusion in the Debian operating system.” [13] They work primarily involves reviewing software against the DFSG to determine if the packages constitute “free software” per the DFSG. Contributors to the Debian project can then take these determination into account when making decisions about what to include in individual packages. From time to time the debian-legal list provides a review of a well-known software license to express a rough consensus opinion on whether software released solely under the license would satisfy the definition of “free software” according to the DSFG. Although these summaries are not binding, they do provide some basis for the Debian project to make decisions about individual packages. Although debian-legal work primarily in reviewing software programs and Creative Commons licenses are not [2] [3] [4] For an overview of the licenses, see http://creativecommons.org/ about/licenses/meet-the-licenses See CC Weblog, Creative Commons Launches, December 15, 2002, http://creativecommons.org/weblog/entry/3484 See CC Weblog, Announcing (and explaining) our new 2.0 licenses, May 25, 2004, http://creativecommons.org/weblog/entry/4216 See CC Weblog, Comments Period Drawing to a Close for Draft License Version 2.5, May 29, 2006, http://creativecommons.org/ weblog/entry/5457 [6] [7] [8] [9] [10] [11] [12] [13] See Mia Garlick, ‘Getting to Version 3.0,’ May 17, 2006, http:// lists.ibiblio.org/pipermail/cc-licenses/2006-May/003557.html http://www.debian.org/ http://mit.edu/ http://creativecommons.org/weblog/entry/5709 http://www.us.debian.org/intro/about http://www.us.debian.org/social_contract http://www.us.debian.org/social_contract#guidelines http://lists.debian.org/debian-legal/ http://people.debian.org/~evan/ccsummary.html THE PHILIPPINE IT LAW JOURNAL 9 10 THE PHILIPPINE IT LAW JOURNAL designed for software, debian-legal notes that the: “Creative Commons licenses are still of interest to the Debian project. Debian includes documentation for programs, and many programs included in Debian use digital data such as images, sounds, video, or text that are included with the programs in Debian.” [13-A] Consequently, debian-legal reviewed the CC licenses and concluded that none of the Creative Commons core licensees were free according to the DFSG and recommended that works released under these license “should not be included in Debian.” [13-B] It is clear that the licenses that contain a NonCommercial or a NoDerivatives restriction (e.g. AttributionNonCommercial, AttributionNonCommercial-ShareAlike, AttributionNoDerivatives, AttributionNonCommercial-NoDerivatives ) will never be able to comply with the DFSG because these violate basic principles articulate in the DSFG — specifically, DSFG 1 which requires that a licensee be able to sell copies of the work, DSFG 3 which requires a license to permit the making of derivative works and DSFG 6 which proscribes discrimination against any field of endeavor. But this should still leave the CC Attribution and Attribution-ShareAlike licenses as DSFG-compliant. On reviewing debianlegal’s issues with these licenses, it seemed clear to Creative Commons that, for the most part, minor amendments and clarifications to the licenses should be able to address debian-legal’s concerns. [14] One topic, however, that was not minor and proved to be much debated as part of the version 3.0 license discussions was the anti-TPM clause in the CC licenses; TPM being technological protection [13-A] [13-B] [14] measures such as encryption which have received legal protection in many jurisdictions around the world, which make it a civil (and sometimes) a criminal offence to circumvent these measures. The Creative Commons licenses prohibit a licensee applying a TPM to a licensed work that restricts the rights granted under the license. [15] In essence, this clause is intended to ensure that a person cannot exercise the freedoms granted by a CC license to apply technologies that restrict those freedoms for others. In Debian’s view, this prohibition violates DSFG #1 because it prevents a licensee from being able to distribute works in the format of their choice. The consequence of this is that CC-licensed content cannot, for example, be included by a licensee in a Sony Playstation game or other platforms that exist on TPM. An important thing to note, however, is that this limitation only applied to CC licensees. CC licensors are of course free to license their works on a Sony or other TPM-ed platform whilst also CC licensing it. One example of this is the Beastie Boys track ‘Now Get Busy’ that appeared on the WIRED CD under a CC Sampling license [16] but was then also made available on iTunes [17]. To avoid interfering with the freedom of the licensed content and allowing a licensee to lock up the content on a TPMed platform, Debian proposed that CC’s so-called “anti-TPM” provision to allow a licensee to distribute the CC-licensed work in any format, including a TPM-ed format, provided that the license distributed the work in at least one format that did not restrict another person’s exercise of rights under the license. This proposal became known as the “parallel distribution” proposal. Creative Commons initially agreed to include the parallel distribution proposal as part of the discussion draft for the Version 3.0 amendments. The rationale [16] [17] for this initial acceptance was that it could accommodate the objectives of the antiTPM clause (being free culture) whilst also addressing Debian’s concerns that people be free to create works for distribution on TPM-ed platforms. The parallel distribution proposal did not, however, survive discussions with the Creative Commons International affiliates[18]. The affiliates are responsible for “porting” the CC licenses to their local jurisdiction (discussed in greater detail below) and for fielding a wide range of questions about CC licenses and their implementation in various projects throughout the world. Based on their experience with the diverse communities that use and rely on CC licenses and explaining the licenses to different constituencies, the CCi affiliates were strongly opposed to the introduction of a parallel distribution scenario for various reasons, including: (1) the lack of demonstrated use cases showing a strong need among CC licensees for this kind of an exception to the existing “anti-TPM” language; (2) risks of unduly complicating the licenses which defeats alot of the purpose of CC licenses, namely to be simple and easy to use and to understand; and, (3) the strong opposition to technological protection measures in general by many in the CC community. CC did, however, include the parallel distribution proposal as part of the public license discussions when those were launched in August 2006 [19] so that the community on those lists could debate the merits of the proposal. The discussions about the parallel distribution proposal on the cc-licenses email list were very intense. Various participants argued in favor of the parallel distribution amendment on the grounds that the “anti-TPM” clause violated DSFG #1 and achieved little, if anything. Taking the advantage of a Sony Playstation again, if CC-licensed content cannot be included in games for the PS2 platform, the CC licensee is restricted in what they can do [15] Id. Id. For an outline of these concerns, see http://people.debian.org/ ~evan/ccsummary See e.g., clause 4(a) “You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement.” of the CC Attribution license. http://creativecommons.org/licenses/by/2.5/legalcode [18] [19] http://creativecommons.org/wired h t t p : / / p h o b o s . a p p l e . c o m / We b O b j e c t s / M Z S t o r e . w o a / w a / viewAlbum?playlistId=15146499&selectedItemId=15146497&s=143441 http://creativecommons.org/worldwide/ See Mia Garlick, Version 3.0 – Public Discussion, August 9, 2006, http://lists.ibiblio.org/pipermail/cc-licenses/2006-August/ 003855.html with the content, the PS2 gamer cannot play a game with CC-licensed content and Sony are unlikely to notice the absence of this content and will continue along as business as usual with a TPM-ed platform, irrespective of any anti-TPM ban in the CC licenses. When asked about the extent to which there was a demonstrated need by developers (as licensees) to be able to utilize CC-licensed content in TPM-ed environments, advocates of the parallel distribution amendment argued that it was better to address the problem before a need arose. However, the overall tenor of the cclicenses list discussions tended not to favor adoption of the parallel distribution proposal. There was concern that if parallel distribution were permitted in the CC licenses this would reinforce, if not expand, a platform monopoly enjoyed by a TPM-ed platform that only allows the playing of TPM-ed content [20] [21]. Other concerns were voiced that the non-TPMed copy may not be able to played as well as the TPM-ed copy and, generally, that the community was not in favor of supporting a TPM option at this stage [22] [23] [24] . Whether Debian now declare the CC Attribution and Attribution-ShareAlike licenses to be free according to the DSFG or not — given all negotiated amendments are included in version 3.0 with the exception of the parallel distribution provision — remains an open question. Certainly, Debian voted [25] earlier in 2006 to allow works licensed under the Free Documentation License to be used in Debian projects. The vote specifically says that the anti-TPM clause in the FDL does not render the FDL incompatible with the DSFG. However, it is not clear whether this treatment is an exception or will also enable the CC Attribution and Attribution- ShareAlike license to also be held to be compatible with the DSFG. MIT With MIT, their OpenCourseWare (OCW) project [26] was initially launched in September 2002 prior to the formal release of the Creative Commons core licensing suite in December 2002 and thus, used an early version of the Attribution-NonCommercial-ShareAlike license. “OpenCourseWare” is the free and open digital publication of high quality educational materials, organized as courses. Flexible licenses such as Creative Commons licenses are key to enabling the openness of these materials. MIT’s OpenCourseWare project has initiated a global opencourseware movement. Most recently, the OpenCourseWare Consortium [27] has been formed which involves the collaboration of more than 100 higher education institutions and associated organizations from around the world — including China, France, Japan, the UK, the USA and Vietnam — who are committed to creating a broad and deep body of open educational content using a shared model. Given CC licenses have improved over time, both CC and MIT wanted to work together to address any issues MIT had about the CC licenses so that MIT could switch over to a more recent version of the CC BY-NC-SA license. However, a key concern for MIT, given its illustrious reputation, is to ensure that when people translate and locally adapt MIT content under the terms of the BY-NC-SA license, they make it clear that they are doing so under the terms of the license and not as a result of a special relationship between MIT and that person — essentially, a “No Endorsement” clause. Given “No Endorsement” clauses are a standard feature of free and open source [24] software, CC felt that it would be easy issue to make this express in the CC licenses. In CC’s view, a licensee should not interpret the attribution requirement of the CC licenses as a basis (whether intentionally or not) to misrepresent the nature of the relationship with the licensor. Certainly, in most jurisdictions laws other than copyright law will proscribe this misconduct by a licensee. But CC agreed with MIT that it was useful to make this express in the license — both to give the licensor comfort and to ensure that the licensee was under no misapprehensions. This feedback from both Debian and MIT was the impetus for CC commencing the version 3.0 process. However, as many projects do — versioning to 3.0 rapidly developed to encompass new and additional issues. These issues can effectively be described as further internationalization and international harmonization of the CC licenses Further Internationalization When CC’s core licensing suite was first released in December 2002, the licenses were drafted based on US copyright law and referred to as the “generic” license because the license did not identify a specific jurisdiction or governing law to apply to the interpretation of the license. Towards the end of 2003, Creative Commons launched its license internationalization project [28], which involves the “porting” of the generic licenses to different jurisdictions around the world. Since this project started, the CC core licenses have been “ported” to over 30 jurisdictions around the world to countries as diverse as Argentina, Australia, Brazil, Croatia, China, France, Italy, Japan, Malaysia, Mexico, South Africa and South Korea. [28-A] While the internationalization has taken off far beyond Creative Commons’ [20] [21] [22] [23] See Greg London, Re:Subject: Version 3.0 – List Discussion Responses, September 28, 2006, http://lists.ibiblio.org/pipermail/cc-licenses/ 2006-September/004130.html See also, Terry Hancock, Debian and Creative Commons, October 18, 2006, http://www.freesoftwaremagazine.com/blogs/ debian_and_the_creative_commons See the discussion archives for August. http://lists.ibiblio.org/ pipermail/cc-licenses/2006-August/thread.html See the discussion archives for September. http://lists.ibiblio.org/ pipermail/cc-licenses/2006-September/thread.html [25] [26] [27] [28] [28-A] See the discussion archives for October. http://lists.ibiblio.org/ pipermail/cc-licenses/2006-October/thread.html See ‘General Resolution: Why the GNU Free Documentation License is not suitable for Debian main, http://www.debian.org/vote/2006/ vote_001 http://ocw.mit.edu/index.html http://ocwconsortium.org/ http://creativecommons.org/worldwide/ Id. 11 THE PHILIPPINE IT LAW JOURNAL 12 THE PHILIPPINE IT LAW JOURNAL expectations and has demonstrated the amazing energy around the globe for a more flexible and permissive copyright licensing approach, two issues arose. The first is that as Creative Commons’ license internationalization project continued to grow, the “generic” license and the US license were one and the same. For the casual visitor to the CC worldwide page [28-B], it seemed that the licenses had not been “ported” to the US, when in fact they had started out there. The challenge becomes though — if CC recognizes a specific US license, on what law should the “generic” license be based? The approach Creative Commons adopted to respond this issue required further internationalization of our licenses. We decided to spin off the “generic” license to be a US license and recraft the “generic” license to have it utilize the language of the international intellectual property treaties, in place of the language of US copyright law. The new license relies on the language of the Berne Convention for the Protection of Literary and Artistic Works [29], the Rome Convention of 1961 [30], the WIPO Copyright Treaty of 1996 [31], the WIPO Performances and Phonograms Treaty of 1996 [32] and the Universal Copyright Convention [33]. Because treaties are matters of international agreement between countries and, as a general rule, require adoption into national law to be effective in a particular country, simply basing the license wording on these treaties is not, of itself, sufficient. Consequently, clause 8(f) of the new generic specifically provides that the license takes effect according to the corresponding provisions of the implementation of those treaty provisions in the applicable national law. To reflect the nature of the new “generic” license we also decided to change its name to “unported.” This description is intended to highlight the different nature of the new generic license and to utilize [28-B] [29] [30] [31] [32] the “porting” terminology that Creative Commons has been using in its license internationalization project since its launch in 2003 to more clearly illustrate the nature of the license that has not been adapted for a local jurisdiction. The result of this further internationalization is that CC will now offer both an “unported” license and a US license, in addition to the 30-plus ported licenses; the unported license can be selected by those creators to whose jurisdiction CC has not yet ported a license. International Moral Rights Harmonization – But the moral right of integrity, as a general rule, gives the author of a creative work the right to object to alterations or mutilations of the work that are prejudicial to their reputation or honor. Obviously, this has potential to impact the freedom to exercise the right to make derivatives — a derivative will likely always qualify as an alteration of the original work and there may be some instances where it is arguable that it is prejudicial to the original author’s reputation or honor. Obviously, the first generic version 1.0 license suite released in December 2002 did not mention moral rights because it was based on US copyright law and US copyright law only grants very limited moral rights to works of fine art. However, as the CC licenses began the porting process to other countries, it became necessary for CC licenses to address the moral right of integrity. To do so, the Creative Commons licenses, with one exception, have taken the approach of not interfering with the author’s moral right of integrity in those jurisdictions that recognize this right. The one exception is in Canada where the moral right of integrity is waivable. Because Canada was one of the first ten countries to port the CC licenses and one of the first (if not the only one) to have a waivable moral right of integrity, on advice of our local affiliate, the CC Canada licenses choose to waive the right of integrity in order to ensure that the licensor’s intention in choosing to permit derivative works was not compromised. However, in all other CC licenses for jurisdictions that recognize the moral right of integrity, the right was retained albeit in different forms; again, on advice from local affiliates. For example, in most European jurisdictions, the right was expressly retained in the Legal Code because of the strong level of protection for the right in these jurisdictions, as evidenced by the fact that courts would take a dim view of a license that did not expressly include it. The second more major issue that arose through the porting process was that different jurisdictions had different approaches to issues relating to moral rights and collecting societies. Moral rights, to described them briefly, are author’s right that are distinct from the economic copyright that can be bought and sold [34] . Moral rights recognize an author ’s personal attachment to their creativity and seek to protect that connection. While there can be many different moral rights depending on the jurisdiction, the two main ones that are consistently present in most countries around the globe are the moral right of attribution and the moral right of integrity [35]. Obviously, since attribution became a default CC license characteristic with version 2.0 there is less of an issue regarding the moral right of attribution. However, the moral right of integrity presents a more complex issue for Creative Commons licenses. CC licenses are intended to enable and promote reuse of creative content, particularly the making of derivative works. And those copyright owners who use CC licenses have acknowledged this with over twothirds of CC licensors consistently choosing to allow derivative works. [33] [34] [35] Id. http://wipo.int/treaties/en/ip/berne/ http://wipo.int/treaties/en/ip/rome/ http://wipo.int/treaties/en/ip/wct/ http://wipo.int/treaties/en/ip/wppt/ http://www.unesco.org/culture/laws/copyright/html_eng/page1.shtml See generally, http://en.wikipedia.org/wiki/Moral_rights See Article 6bis of the Berne Convention (as amended September 1979), http://www.wipo.int/treaties/en/ip/berne/ trtdocs_wo001.html#P123_20726 In most Latin American jurisdictions, the license was not expressly retained in the Legal Code on the rationale that courts would read it in the license. In Japan, the moral right of integrity was retained in those licenses that prohibited derivative works but not fully retained in those licenses that permit derivative works. The local CC Japan team recommended this approach because the moral right of integrity can be interpreted so broadly as to render any change or alteration to the original work a violation of the right. Although there is overall consistency in the treatment of the moral right of integrity at the Legal Code level (with the exception of Canada) among the CC licenses, now that the licenses have been ported to over 30 jurisdictions, we felt that it was time to harmonize the approach to this issue at both the Legal Code level and the Commons Deed level. The different approaches towards recognizing the right of integrity in the CC licenses arose because, as CC engaged in the novel process of license porting, we became familiar with the different treatment of this right in different jurisdictions. With the benefit of experience with more than 30 different treatments, CC now felt comfortable to adopt a unified approach. As a consequence, as part of version 3.0 all CC licenses for jurisdictions that recognize the moral right of integrity will expressly retain that right in the Legal Code to the extent that this is feasible given the status of derivative works under the license. In those jurisdictions in which retention of the moral right of integrity may be completely block exercise of the derivative works right (ie. in Japan) the right will be tempered to the extent necessary to enable the exercise of the derivative works right in a manner intended by the licensor. In addition, because of the importance of the moral right of integrity in protecting both the author’s rights and for its impact on the derivative works right, from version 3.0 the CC Commons Deeds will clearly state that the author retains their moral rights. International Harmonization — Collecting Societies Collecting societies are organizations that are established either by private agreements between copyright owners or by copyright law [36]. Societies license works and process royalty payments from various individuals and groups who use copyrighted works either as part of a statutory scheme (compulsory schemes) or by entering into an agreement with the copyright owner to represent the owners interests when dealing with licensees and potential licensees (voluntary schemes). The rationale underlying societies is that it is more efficient and effective for copyright holders to be represented collectively in negotiating and levying license fees. CC licenses also contained different treatments of whether and how a licensor can collect royalties via collecting societies because of the differences in the status of collecting societies amongst different jurisdictions. In the United States, where the CC licenses originated, an artist can be a member of a collecting society and use CC licenses for those of their works that suit them. This is because of the rigorous enforcement of antitrust laws in the US during the early 20th century that requires that US collecting societies take a nonexclusive license from artists. This allows artists to then engage in direct licensing, including via CC licenses, to their fans and others who wish to share and remix their music. Consequently, in the original CC licenses language was introduced into the licenses as part of version 2.0 to clarify what was considered to be the obvious interaction between CC licenses and collecting society membership. This initial approach stated that under those licenses that permitted commercial use (Attribution, Attribution-NoDerivatives and AttributionShareAlike) the licensor waived the right to collect both compulsory and voluntary royalties. Under those licenses that permitted noncommercial use only, the licensor reserved the right to collect royalties for any uses that were commercial in nature but otherwise authorized royalty-free noncommercial use of the work under the CC license. This approach reflected the fact that by choosing to apply a CC license to their work, a CC licensor clearly intends to permit “free” (as in both price and freedom) uses under the terms of the applicable CC license. However, the situation regarding collecting society membership in many other jurisdictions around the world is remarkably different to the US position. Elsewhere, collecting societies take either an assignment of copyright ownership or an exclusive license to a work of the rights that they represent (which tends to include all of the works an artist creates). This means, for the most part, that an artist cannot directly license their works online, including via CC licenses. The consequence of this is that artists who use CC licenses cannot receive voluntary royalties collected by a society because they are not able to become a member of the society. Thus, the treatment of collecting society royalties in the CC licenses differed according to the jurisdiction — in many jurisdictions the collection of voluntary royalties was not mentioned so as not to give any misleading impression that membership of a collecting society was possible for a CC licensor. In addition, many CC licenses retained the right to collect compulsory royalties in all licenses, both those that permitted commercial use and those that permit noncommercial use only, because of the advice of local affiliates that local law would not permit the waiver of such a right. In version 3.0, after the benefit of seeing the different permutations of collecting society membership in over 30 countries and having had a dedicated team working on the issue of the interaction of CC licenses and collecting society membership for more than a year, CC has decided to harmonize the treatment of collecting societies in the CC licenses. The harmonized approach still allows different jurisdictions to adopt an approach towards collective royalty collection that suits their jurisdiction but ensures that this is consistently applied 13 [36] See generally, http://en.wikipedia.org/wiki/Collecting_society THE PHILIPPINE IT LAW JOURNAL 14 THE PHILIPPINE IT LAW JOURNAL across jurisdictions. Specifically, as regards compulsory royalty collection, the licensor will reserve the right to collect these royalties in those jurisdictions in which this cannot be waived. In those jurisdictions in compulsory royalty collection can be waived, it will be waived completely for those licenses that permit commercial use and reserved only for commercial uses in those licenses that permit noncommercial use only. For voluntary royalties, the licensor will reserve the right to collect this “in the event that they are a member of a collecting society” that collects such royalties. This then allows for those jurisdictions in which an artist can be a member of a collecting society and use CC licenses. It also allows for flexibility for those artists who are members of collecting societies and use CC licenses anyway or if in future collecting society membership structures do allow some use of CC licenses, to also enjoy the benefits of their membership if their collecting society moves towards being able to collect for commercial uses of CClicensed works. BY-SA — Compatibility Structure Introduced A final change incorporated into Version 3.0 is that the CC BY-SA 3.0 licenses now include a compatibility structure that will enable CC to certify particular licenses, stewarded by other organizations similarly committed to promoting a freer culture, as being compatible with the CC BY-SA. Once certified as compatible [37], licensees of both the BY-SA 3.0 and the certified CC compatible license will be able to relicense derivatives under either license (eg., under either the BY-SA or the certified CC compatible license). Creative Commons CEO Lawrence Lessig first outlined the vision of allowing an ecology of flexible content licenses to flourish in November 2005 [38]. As Lessig explained: [37] [38] "Even if all the creative work you want to remix is licensed under a copyleft license, because those licenses are different licenses, you can’t take creative work from one, and remix it in another. Wikipedia, for example, is licensed under the FDL. It requires derivatives be licensed under the FDL only. And the same is true of the Creative Commons Attribution-ShareAlike license that governs Opsound content, as well as much of the creativity within Flickr. All of these licenses were written without regard to the fundamental value of every significant advance in the digital age — interoperability." This incompatibility also serves as a barrier to dual licensing works under the FDL and CC BY-SA [39]. Simply put, the problem is that any license with a "ShareAlike" or similar copyleft provision requires that any derivatives be licensed under exactly the same license (or family of licenses) as the original. This means that an article about Rio de Janeiro on Wikipedia [40] (which is currently licensed under the FDL) cannot be mixed with an article about Rio on Wikitravel [41] (which is currently licensed under the CC BY-SA 1.0). Even if a project were dual licensed, none of the derivatives of the project could be returned back to the duallicensed project (because they must be licensed under one or the other license), thus causing "project bleed." The result of the ShareAlike or "copyleft" license terms is seemingly antithetical to the very purpose of the licenses that contain them. Content, rather than being "free" to remix, is instead locked within particular licensing systems. Consequently, CC has been working to ensure that, to again quote Lessig: "[C]reative work[s] will more easily be able to move from one [41] [42] [43] [44] license to another, as creativity is remixed. And this ability for creative work to move to compatible free licenses will provide a market signal about which licenses are deemed more stable, or reliable, by the free licensing community. Free culture will no longer be “ghettoized” within a particular free license. It will instead be able to move among all relevantly compatible licenses. And the world of “autistic freedom” that governs much of the free software world will be avoided in the free culture world." There are several obvious candidates for compatibility with the CC BY-SA. The Free Art License [42] and the Free Software Foundation's Free Documentation License (FDL) [43]. Creative Commons' initial work has focused on achieving compatibility with the FDL. As part of this work, CC explored the possibility of introducing one-way compatibility with the FDL. [44], which generated some discussion. CC then responded to some of the concerns raised by this discussion [45] but ultimately concluded that one-way comaptibility with the FDL was not possible because CC licensors could not be guaranteed the same protections under the FDL that they enjoyed under the CC BY-SA. Despite the inability to implement oneway compatibility with the FDL, Creative Commons is still hopeful of being able to announce licenses that effect the same freedoms as the CC BY-SA to be compatible with the CC BY-SA at some date in the future. To allow the compatibility negotiations to occur separate and apart from the timing of the license versioning process, we have included a structure for certifying licenses as compatible with CC BY-SA as part of Version 3.0 [46]. TO PAGE 19 [39] [40] http://creativecommons.org/compatiblelicenses See CC in Review: Lawrence Lessig on Compatibility, http:// creativecommons.org/weblog/entry/5709 See Evan Prodromou, Derivatives of dual-licensed Creative Commons Attribution-ShareAlike and GFDL works, May 3, 2005, http://lists.ibiblio.org/pipermail/cc-licenses/2005-May/ 002265.html http://wikipedia.org/ [45] [46] http://wikitravel.org/en/Main_Page http://artlibre.org/licence/lal/en/ http://www.gnu.org/copyleft/fdl.html See Discussion Draft — Proposed License Amendment to Avoid Content Ghettos in the Commons, http://creativecommons.org/ weblog/entry/5701 http://creativecommons.org/weblog/entry/5731 See Version 3.0 — It's Happening & With BY-SA Compatibility Language Too, http://creativecommons.org/weblog/entry/7234 CREATIVE COMMONS INTERNATIONAL THE PORTING PROCESS This article adopts the document “Worldwide Overview,” and its subpages, available at http://wiki.creativecommons.org/ Worldwide_Overview, with footnotes outlining the Philippine experience. http://www.creativecommons.org/licenses/by/3.0/ The Creative Commons generic, or "unported," licenses are jurisdictionagnostic. They do not mention any particular jurisdiction's laws or statutes or contain any sort of choice-of-law provision. In light of this, although the licenses could function in legal systems across the world, some aspects of the "unported" licenses may not jibe with a particular jurisdiction's laws. Hence, the International Commons project allows the porting of the Legal Code to accommodate a specific jurisdiction's legal background rules. [1] The Process of porting Project Lead and Institution or Law Firm Identified The Project Lead is the central figure for the porting of the licenses into national law. He/she is an expert in copyright law, more often than not a lawyer, and more often than not associated with the Institution or Law Firm. In some jurisdictions Creative Commons International (CCI) identifies the Project Lead first and asks him/her for help in finding a renowned copyright Institution or renowned Law Firm. In other jurisdictions, the CCI is in contact with the Institution/Firm first and tries to find a [1] [2] Project Lead from within. [2] Whether for the application for the project lead and public institution, or for the porting of the generic licenses towards a jurisdiction-specific licenses, the Director [3] of the CCI had to be contacted. The project lead had to read all the relevant documents, including the porting checklist, required in license porting from the iTeamSpace repository of the CCI, in preparation of the necessary processes in the production of the license drafts. The project lead had to check the jurisdiction's current licenses. [4] Considerations as to the prevailing circumstances involving Collective Rights Management, within the jurisdiction, also had to be made. 2. Production of First Draft To preserve the global spirit of Creative Commons, CCI strives for utmost similarity between the licenses worldwide. It is thus important for CCI that the porting be very close to the original and go into the specifics of national law only when absolutely necessary. Once the first draft of the licenses is produced, it is re[5] translated into English. This is also important for CCI, so that it can learn what differences the legal systems of the respective jurisdictions have brought into the Creative Commons licenses. [5] 3. Online Public Discussion Creative Commons makes the first draft of the licenses accessible on the CCI website, via a mailing list and archive, for public discussion. [6] Both the Project Lead and CCI make concentrated efforts to drive expert traffic toward the project e-mail list. [7] 4. Production of Second Draft In a new draft, the Project Lead incorporates relevant ideas that were put forward in the public discussion. This second draft, however, is optional since the Project Lead may decide to keep the original published, if none of the ideas brought forward seem usable. The Project Lead generally provides an English translation for the second draft, but which was not necessary for the Philippine porting process since the drafts have always been in English. There was no second draft created as there were no TO PAGE 22 [3] [4] http://creativecommons.org/international/ In the Philippines, CCI is working with the e-Law Center of the Arellano University School of Law to create Philippine jurisdiction-specific licenses from the generic Creative Commons licenses.The Arellano University School of Law is the Public Lead Institution, while Atty. Jaime N. Soriano, the Executive Director of the e-Law Center therein, is the Philippine project lead for the Creative Commons affiliate in the Philippines. http://creativecommons.org/worldwide/ph/ Catharina Maracke. See http://creativecommons.org/about/ people#67 No Philippine-specific license was officially released prior to the porting procedure for the Version 3.0 licenses. The process of porting the generic license of Creative Commons 2.0 licenses -- which has been undertaken by the Creative Commons project lead after he has been identified to be so up to the interim stage between public discussions and the production of the second draft -- was overtaken by the release of Creative Commons versions 2.5 and 3.0. Hence, the whole process of porting, towards the Creative Commons 3.0 licenses, had to be reinitiated. [6] [7] The first draft of the Version 3.0 Philippine license, using the CC-BYNC-SA 3.0 as a template, was submitted to CCI late March 2008 for their initial comments. Suggestions from the representatives from the University of the Philippines – Internet Society Program, which were made during the public discussions of the previously proposed 2.0 Philippine licenses were incorporated into the Version 3.0 Philippineported license, when and if they remain to be applicable. Correspondence with CCI ensued for certain clarifications on the proposed ported 3.0 license's wordings. The draft was submitted in English, a recognized alternative national language to the Filipino language. English was adopted so that the license would not experience any entanglement with political undercurrents relating to the Tagalogbased Filipino language, and more importantly, for convenience, inasmuch as English is the recognized language in Philippine courts. http://creativecommons.org/worldwide/ph/ The final copy of the first draft was submitted late May 2007, and was posted for public discussion immediately thereafter. The public discussion was completed, without new comments, at the end of June 2007. By early July, the set of 6 licenses were submitted to CCI. 15 THE PHILIPPINE IT LAW JOURNAL 16 THE PHILIPPINE IT LAW JOURNAL CREATIVE COMMONS PHILIPPINES PORTED LICENSE MODIFICATIONS BY MICHAEL VERNON GUERRERO This article documents the changes made to generate the Philippine set of Creative Commons licenses: 1. The modification in the general header disclaimer, "CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED. CREATIVE COMMONS ALSO DISCLAIMS LIABILITY FOR DAMAGES AND ASSUMES NO LEGAL RESPONSIBILITY RESULTING FROM ITS USE" is merely for style. 2. In the second paragraph of the license header, the phrase "TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT," was removed. The phrase was removed to avoid any doubt that the license can be considered as part of an entirely different class of documents besides those of contracts. The following points are made to support this position: a. From where obligations arise: Article 1157 of the Philippine New Civil Code (Republic Act 386, approved 18 June 1949) provides that "Obligations arise from: (1) Law;(2) Contracts; (3) Quasicontracts; (4) Acts or omissions punished by law (delicts); and (5) Quasi-delicts." In light of the stipulations detailing the obligations of the licensee in the Creative Commons license, such obligations emanate under Article 1157 (2), RA 386, as provided above. b. Requisites of a valid contract; Effect of absence of cause: Article 1318 of the Philippine New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established. One of the focal point in c. d. determining whether the Creative Commons license, hence, is a valid contract lies in the existence of the third element "cause". Article 1352 [of the New Civil Code] declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2). (JLT Agro v. Balansag; GR 141882, 11 March 2005; citing PADILLA, CIVIL LAW, Vol. IV-A, 247-248 (1988). Ocejo, Perez and Co. v. Flores and Bas, 40 Phil. 921, Escutin v. Escutin, 60 Phil. 922.) "Cause" or "consideration": In [Philippine] jurisdiction, cause and consideration are used interchangeably (Footnote 28, Saguid v. Security Finance, GR 159467, 9 December 2005). As expressed in Gonzales v. Trinidad, 67 Phil. 682, consideration is "the why of the contracts, the essential reason which moves the contracting parties to enter into the contract." (Villamor v. Court of Appeals, GR 97332, 10 October 1991) Presumption of existence of cause/consideration: Under Article 1354 of the Philippine Civil Code, it is presumed that consideration exists and is lawful unless the debtor proves the contrary. (Saguid v. Security Finance, GR 159467, 9 December 2005; citing Nuguid v. Court of Appeals, GR 77423, 13 March 1989, 171 SCRA 213, 218) Moreover, under Section 3(r) of Rule 131 of the Rules of Court, it is presumed that there is a sufficient consideration for a contract. The presumption that a contract has sufficient consideration cannot be overthrown by a mere assertion that it has no consideration. (Saguid v. Security Finance, GR 159467, 9 December 2005; citing Fernandez v. Fernandez, G.R. No. 143256, 28 August 2001, 363 SCRA 811, 828.) To overcome the presumption of consideration, the alleged lack of consideration must be shown by preponderance of evidence. (Saguid v. Security Finance, GR 159467, 9 December 2005; citing Ong v. Ong, G.R. No. L67888, 8 October 1985, 139 SCRA 133, 136.) e. Cause/consideration not necessarily pecuniary in nature: The consideration need not be monetary but could consist of other things or undertakings. (Navotas Industrial Corp. v. Cruz, GR 159212, 12 September 2005; citing Bible Baptist Church v. Court of Appeals, G.R. No. 126454, 26 November 2004, 444 SCRA 399.) Under Philippine jurisdiction, the CC license should be considered as a valid contract when the other two elements are also present, especially in light of the obligations being imposed against the licensee(s) in exchange for the permission to use the materials licensed by the licensor therein. This is a major change since the principle beyond its enforceability is distinct from other jurisdictions, where the license's enforceability may emanate from the law itself. 2. The phrase "dramatization, translation, adaptation, abridgment, arrangement, and other alterations of a literary or artistic work," replaced "translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work," in the definition of "Adaptation." This change was made to reconcile the definition with Section 173.1(1), Republic Act 8293. 3. The phrase "sound recording, audiovisual work, or fixation." replaced "phonogram." Sound recordings, audiovisual works, and fixations are defined under Sections 202.2 to 202.4 of Republic Act 8293. 4. The phrases "collection of literary, scholarly or artistic works, and a compilation of data and other materials," and "which by reason of the selection or coordination or arrangement of their contents," replaced "collection of literary or artistic works," and "which, by reason of the selection and arrangement of their contents," in the definition of "Collection." This was made to reconcile the definition with Section 173.1(2), Republic Act 8293. This is a major change since "a compilation of data and other materials" is adjusted towards the purview of "Collection," which is a derivative work, as provided by law and not under "Work," which contemplates original work, under the unported licenses. It is also noteworthy that Version 3.0 uses the word "Collection" and no longer "Collective work," as used in Versions 2.0 and 2.5. This removed the necessity to explain the distinction between a collection contemplated in Section 173.1(2) with collective works as defined in Section 171.2, Republic Act 8293. It appears that the term "collective work" in the Philippine jurisdiction is synonymous with "joint work" in other jurisdictions. 5. The sentence "Such distribution of the original and copies of the work or adaptation, which is the material object that is subject of copyright, does not imply a transfer or assignment of the copyright of such works or adaptation." was added to the definition of "Distribute." This change was made to emphasize Section 182, Republic Act 8293, which distinguishes the material object that is subject to copyright, and copyright itself. 6. The phrases "person, whether natural or juridical," replaced "individual, individuals, entity or entities" in the definition of "Licensor." This change was made so as to provide a legal context as to the parties involved in the agreement. The provisions on Persons are provided in Republic Act 386 (Philippine New Civil Code), 7. 8. 9. 10. 11. Book I: Natural Person (Articles 4043), Juridical Persons (Articles 44 to 47). This change was similarly replicated in the definition of "Original Author" where "natural person or persons" and "natural person" replaced "individual, individuals, entity or entities" and "individual or entity", respectively; in the definition of "You" where "a person, whether natural or juridical," replaced "an individual or entity"; in the first paragraph on the title on "Termination," where "Persons, whether natural or juridical," and "persons" replaced "Individuals or entities" and "individuals or entities" respectively The phrase "who or which owns the copyright of the work," was added in the definition of "Licensor" to emphasize the requirement that the one who grants the license should have the right to do so. Ownership of copyright is elaborated under Section 178, Republic Act 8293. The change in the word "offer(s)" to "offers" in the definition of "Licensor" is merely for style. The phrase "especially for anonymous and pseudonymous works, the natural person or persons represented by the publisher" replaced "the publisher;" in the unported license, in light of Section 179, Republic Act 8293. This major change clarifies that publishers cannot be deemed to be the original authors for pseudonymous works but that publishers can represent them. The phrase "to the extent applicable, "original author" may also include:" was added in the definition of "Original Author." This change was made to reflect the distinction of the status of "authors" under the general provisions of the Philippine Intellectual Property Code (Sections 171-201, 213-220), and "performers, producers, and broadcasters" under the specific provisions on the rights of performers, producers of sound recordings and broadcasting organizations (Sections 202-212). Authorship and ownership are clearly distinguished in the general provisions to provide a clear relation between natural and juridical persons as to the exercise of the rights. The phrase "(i) in the case of a performance, the actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play 12. 13. 15. 17 THE PHILIPPINE IT LAW JOURNAL 14. in, interpret or otherwise perform literary or artistic works;" replaced "(i) in the case of a performance the actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore;" in the definition of "Original Author." This change was made to align the stipulation with the definition of "Performers" as provided by Section 202.1, Republic Act 8293. The phrase "(ii) in the case of a sound recording, audiovisual work, or fixation, the producer who is the person who takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representation of sounds;" replaced "(ii) in the case of a phonogram the producer being the person or legal entity who first fixes the sounds of a performance or other sounds;" in the definition of "Original Author." This change was made to align he stipulation with the definition of "Producer of sound recording" as provided by Section 202.5, Republic Act 8293. The phrase "(iii) in the case of broadcasts, the person, duly authorized to engage in broadcasting, that transmits the broadcast" replaced "(iii) in the case of broadcasts, the organization that transmits the broadcast" in the definition of "Original Author." This change was made to align he stipulation with the definition of "Broadcasting organization" as provided by Section 202.8, Republic Act 8293. The phrases "protected from the moment of its creation, and by the sole fact of its creation," and "as well as of its content, quality and purpose," were added in the definition of "Work." This change reflected the wordings of Section 172.2, Republic Act 8293. The enumeration "such as a book, pamphlet, article and other writings; a periodical and a newspaper; a letter; a lecture, sermon, address, dissertation prepared for oral delivery, whether or not reduced in writing or in any other material form, or other work of the same nature; a dramatic or dramatico-musical composition or work; a choreographic work or 18 THE PHILIPPINE IT LAW JOURNAL entertainment in dumb show; a musical composition with or without words; an audiovisual work and a cinematographic work, and a work produced by a process analogous to cinematography or any process for making audio-visual recordings; a work of drawing, painting, architecture, sculpture, engraving, lithography, or other works of art; a drawing or plastic work of a scientific or technical character; a photographic work including work produced by a process analogous to photography; a lantern slide; a pictorial illustration and advertisement; a model or design for works of art; an original ornamental design or model for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; an illustration, map, plan, sketch, chart or three-dimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a sound recording, audiovisual work, or fixation; and other literary, scholarly, scientific and artistic works" replaced that which were enumerated in the definition of "Work" in the unported license. This change was made to reflect the definition of "Works" in Section 172.1, Republic Act 8293, although the items in the law are in their plural form and not in the singular form. as adopted. 16. The phrases "public recitations, plays, dances, or otherwise to perform the work” and "either directly or by means of any device or process," replaced "public recitations of the Work" and "by any means or process," respectively; while "to publicly show of images in sequence and to make the sounds accompanying it audible; to make the recorded sounds audible at a place or at places where persons outside the normal circle of a family and that family's closest social acquaintances are or can be present, irrespective of whether they are or can be present at the same place and at the same time, or at different places and/or at different times, and where the performance can be perceived without the need for communication;" was added, and "to perform the Work to the public by any means or process and the communication to the public of the 17. 18. 19. 20. 21. performances of the Work, including by public digital performance;" was removed in the definition of "Publicly Perform." This change was made to reconcile the stipulation with the definition of "Public Performance" in Section 171.6, the definition of "Communication to the public" in Section 171.3, and "Communication to the public of a performance or a sound recording" in Section 202.9, Republic Act 8293. Broadcasting, defined by Section 202.7, Republic Act 8293, was not modified. The phrase "a copy or" was added, while the phrase "manner or form" replaced "means." This change was made to indicate that even a single instance of making a copy constitutes "Reproduction" under Section 171.9, Republic Act 8293. "Limitations on Copyright" replaced "Fair Dealing Rights" in Section 2. This change was made to reflect the applicability of the whole chapter on Limitations on Copyright (Sections 184-190 [with exception to Section 189 which covers computer programs]) and Section 212 (which relates to the Limitations on Protection on the rights of performers, producers of sound recordings, and broadcasters) of Republic Act 8293, and avoid the implication that only Section 185 or "Fair Use" applies. The modification in the first words of all enumerations under "License Grants," in Section 3, from “to” to “To” was made only for style. The modification of "The original work was translated from English to Filipino," from in "The original work was translated from English to Spanish," one of the enumerations of the license grant was made only for style. Reference to last section in the title "Miscellaneous" was removed in the last paragraph of the title on "License grants" as it no longer applies as a result of the porting process. The last paragraph of the title on "Miscellaneous," which provided "The rights granted under, and the subject matter referenced, in this License were drafted utilizing the terminology of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on July 24, 1971). These rights and subject matter take effect in the relevant jurisdiction in which the License terms are sought to be enforced according to the corresponding provisions of the implementation of those treaty provisions in the applicable national law. If the standard suite of rights granted under applicable copyright law includes additional rights not granted under this License, such additional rights are deemed to be included in the License; this License is not intended to restrict the license of any rights under applicable law." was deleted inasmuch as the Philippine license is now more attuned to the terminology of Philippine Intellectual Property Code, Republic Act 8293. 22. The phrase "or (iii) either the unported Creative Commons license or a Creative Commons license for another jurisdiction (either this or a later license version) that contains the same License Elements as this License (e.g. AttributionNonCommercial-ShareAlike 3.0 (Unported))" replaced "a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., AttributionNonCommercial-ShareAlike 3.0 US)" as suggested by Creative Commons International. 23. The example "Filipino translation of the Work by Original Author," replaced "French translation of the Work by Original Author." This change was made only for style. 24. Only the Voluntary Licensing Scheme was adopted since there is no compulsory licensing scheme (whether waivable or unwaivable) for copyright, unlike patents, available under Philippine law. The primary relevant provision as to the instance of collecting societies may be found under Section 183 (Designation of Society), Republic Act 8293, which provides that "The copyright owners or their heirs may designate a society of artists, writers or composers to enforce their economic rights and moral rights on their behalf." The right of collecting societies to collect the royalties for and in behalf of the copyright owner in the Philippines is derived from the Deed of Assignment CREATIVE COMMONS VERSION 3.0 LICENSES - A BRIEF EXPLANATION Summary of Links The following list provides the CC blog posts that relate to Version 3.0: Getting to Version 3.0 [47] Version 3.0 — Public Discussion Launched [48] FROM PAGE 14 [47] Version 3.0 — Revised License Drafts [49] Version 3.0 — It's Happening & With BYSA Compatibility Language Too [50] Version 3.0 — Launched [51] [48] [49] [50] [51] http://creativecommons.org/weblog/ entry/5908 http://creativecommons.org/weblog/ entry/6017 http://creativecommons.org/weblog/ entry/6120 http://creativecommons.org/weblog/ entry/7234 http://creativecommons.org/weblog/ entry/7249 19 THE PHILIPPINE IT LAW JOURNAL (usually for Public Performance Rights) made between the copyright owners and the collecting society, and not directly from a specific provision of law. Related to the exercise of rights on copyright, incidental to the assignment, is Section 180.1 (Rights of Assignee), which provides that "The copyright may be assigned in whole or in part. Within the scope of the assignment, the assignee is entitled to all the rights and remedies which the assignor had with respect to the copyright." Considering thus that the designation of the collecting society is not in the nature of a power of attorney, but an assignment of rights; the copyright owner could not exercise the rights necessary to license his work outside the agreement made with the collecting society, without being contrary to the Deed of Assignment made with the Collecting Society. Under this scenario, if the copyright owner would license his work with CC license when in fact the rights necessary are already assigned to the Collecting Society, the "in case of doubt clause" would not operate within the sphere of ambiguities of the license terms but within the sphere of the ambiguity of the licensor's capacity itself. Such ambiguity cannot be made to benefit the licensor who would initiate the ambiguity. The licensees' interests remain to be material here since the license is to be taken as a contract in Philippine jurisdiction, in fact a contract of adhesion. Hence, ambiguity, under Philippine jurisprudence, is taken against the one formulating (here, adopting) the terms of the agreement. It cannot be made to prejudice the licensees who have taken the work, according to the terms provided, in good faith. 25. It is noteworthy that Section 4(f) includes an express moral rights acknowledgment, which was omitted by the previous versions 2.0 and 2.5 unported/generic licenses, which were based on US realities. Noting however that (1) the right to make Adaptations per se, in the Philippines, is not deemed a derogatory action prejudicial to the author’s honor and reputation; and (2) Section 4(f) could be read as if the licensee has the obligation "....to not distort, mutilate, modify or take any other derogatory action in relation to the Work which would be prejudicial to the Original Author's honor or reputation" in every jurisdiction even if moral rights do not exist, as pointed out by CCI, there was more wisdom in adopting the more encompassing and neutral statement "Moral rights remain unaffected to the extent they are recognized and not waivable by applicable law," as suggested by the CCI Director, as it considers fully Sections 193 and 195, Republic Act 8293. 26. The phrases "ACTUAL OR COMPENSATORY, INCIDENTAL, MORAL, NOMINAL, TEMPERATE OR MODERATE, LIQUIDATED, EXEMPLARY OR CORRECTIVE" replaced "SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY" in the title on "Limitation on Liability" in Section 6; while "actual or compensatory, incidental, moral, nominal, temperate or moderate, liquidated, exemplary or corrective damages" replaced "general, special, incidental or consequential damages" in the Creative Commons Notice. This change was made in light of the fact that Special, Incidental, Consequential, Punitive and Exemplary Damages, are terms not found in Philippine law. Damages under Philippine Law, specifically under Article 2197, Title XVIII, of the Civil Code of the Philippines (1950) are enumerated as “(1) actual or compensatory; (2) moral; (3) nominal; 27. 28. 29. 30. 31. (4) temperate or moderate; (5) liquidated; or (6) exemplary or corrective.” Based on the definitions or examples being made over the Internet as to the meaning of the original wordings of the damages, "Special damages" somehow relates to Actual or Compensatory damages, "incidental damages" relates to Liquidated damages, "Consequential damages" somehow relates to Moderate or Temperate damages, and "Punitive damages" relates to Exemplary damages. The phrase "or its affiliates in the Philippines ("CC-PH")" was added since a limitation of liability is equally important to affiliates, authorized representatives, etc. of the Creative Commons in the Philippines, relating to the license. The words "Work," "Adaptation," "Collection," Licensor", "License", "License Elements," "Original Author," "You," "Distribute," "Publicly Perform," and "Reproduce" were converted to lower case words, unless they are the first word in a sentence, or are the words being defined in the license. This change was made for style. The words "Applicable License", and "Attribution Parties" were converted to lower case words, unless they are in quotation marks. The word "the" was added before the word "licensor" for consistency, unless if "licensor" is preceded by the word "any" or is related to "original author" in an enumeration or option. Specific section references in Section 4(d), Attribution-NonCommercial 3.0 Philippines now referred to Section 4(b), rectifying the minor error in the unported suite, which refererred to Section 4(c); while Section 1 (b) of Attribution ShareAlike 3.0 Philipines now referred to Section 1(h), rectifying the minor error in the unported suite, which referred to Section 1(f). 20 THE PHILIPPINE IT LAW JOURNAL CREATIVE COMMONS PHILIPPINE JURISDICTIONAL LICENSE SAMPLE ATTRIBUTION- NONCOMMERCIALSHAREALIKE 3.0 PHILIPPINES (LEGAL CODE) This contains the legal code for the Creative Commons Attribution-NonCommerical-ShareAlike 3.0 Philippines available at http:// www.creativecommons.org/licenses/by-nc-sa/3.0/ph CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEYCLIENT RELATIONSHIP CREATIVE COMMONS . PROVIDES THIS INFORMATION ON AN "ASIS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED. CREATIVE COMMONS ALSO DISCLAIMS LIABILITY FOR DAMAGES AND ASSUMES NO LEGAL RESPONSIBILITY RESULTING FROM ITS USE. License c. THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE ("CCPL" OR "LICENSE"). 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. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS. 1. Definitions a. "Adaptation" means a work based upon the work, or upon the work and other preexisting works, such as a dramatization, translation, adaptation, abridgment, arrangement, and other alterations of a literary or artistic work, or sound recording, audiovisual work, or fixation or performance and includes cinematographic adaptations or any other form in which the work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a collection will not be considered an adaptation for the purpose of this license. For the avoidance of doubt, where the work is a musical work, performance or sound recording, audiovisual work, or fixation, the synchronization of the work in timed-relation with a moving image ("synching") will be considered an adaptation for the purpose of this license. "Collection" means a collection of literary, scholarly or artistic works, and a compilation of data and other materials, such as encyclopedias and anthologies, or performances, sound recordings, audiovisual works, or fixations or broadcasts, d. or other works or subject matter other than works listed in Section 1(g) below, which by reason of the selection or coordination or arrangement of their contents, constitute intellectual creations, in which the work is included in its entirety in unmodified form along with one or more other contributions, each constituting separate and independent works in themselves, which together are assembled into a collective whole. A work that constitutes a collection will not be considered an adaptation (as defined above) for the purposes of this license. "Distribute" means to make available to the public the original and copies of the work or adaptation, as appropriate, through sale or other transfer of ownership. Such distribution of the original and copies of the work or adaptation, which is the material object that is subject of copyright, does not imply a transfer or assignment of the copyright of such works or adaptation. "License Elements" means the following high-level license attributes as selected by licensor and indicated in the title of this license: Attribution, Noncommercial, ShareAlike. "Licensor" means the person, whether natural or juridical, who or which owns the copyright of the work, that offers the work under the terms of this license. "Original Author" means, in the case of a literary or artistic work, the natural person or persons who created the work; if no natural person can be identified, especially for anonymous and pseudonymous works, the natural person or persons represented by the publisher. In addition, to the extent applicable, "original author" may also include: (i) in the case of a performance, the actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works; (ii) in the case of a sound recording, audiovisual work, or fixation, the producer who is the person who takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representation of sounds; and, (iii) in the case of broadcasts, the person, duly authorized to engage in broadcasting, that transmits the broadcast. "Work" means the literary and/or artistic work offered under the terms of this license including without limitation any production in the literary, scientific and artistic domain e. f. protected from the moment of its creation, and by the sole fact of its creation, whatever may be the mode or form of its expression including digital form, as well as of its content, quality and purpose, such as a book, pamphlet, article and other writings; a periodical and a newspaper; a letter; a lecture, sermon, address, dissertation prepared for oral delivery, whether or not reduced in writing or in any other material form, or other work of the same nature; a dramatic or dramatico-musical composition or work; a choreographic work or entertainment in dumb show; a musical composition with or without words; an audiovisual work and a cinematographic work, and a work produced by a process analogous to cinematography or any process for making audio-visual recordings; a work of drawing, painting, architecture, sculpture, engraving, lithography, or other works of art; a drawing or plastic work of a scientific or technical character; a photographic work including work produced by a process analogous to photography; a lantern slide; a pictorial illustration and advertisement; a model or design for works of art; an original ornamental design or model for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; an illustration, map, plan, sketch, chart or threedimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a sound recording, audiovisual work, or fixation; and other literary, scholarly, scientific and artistic works. h. "You" means a person, whether natural or juridical, exercising rights under this license who has not previously violated the terms of this license with respect to the work, or who has received express permission from the licensor to exercise rights under this license despite a previous violation. "Publicly Perform" means to perform public recitations, plays, dances, or otherwise to perform the work and to communicate to the public those public recitations, either directly or by means of any device or process, including by wire or wireless means or public digital performances; to publicly show of images in sequence and to make the sounds accompanying it audible; to make the recorded sounds audible at a place or at places where persons outside the normal circle of a family and that family's closest social acquaintances are or can be present, irrespective of whether they are or can be i. b. g. present at the same place and at the same time, or at different places and/or at different times, and where the performance can be perceived without the need for communication; to make available to the public works in such a way that members of the public may access these works from a place and at a place individually chosen by them; to broadcast and rebroadcast the work by any means including signs, sounds or images. j. "Reproduce" means to make a copy or copies of the work by any manner or form including without limitation by sound or visual recordings and the right of fixation and reproducing fixations of the work, including storage of a protected performance or sound recording, audiovisual work, or fixation in digital form or other electronic medium. 2. Limitations on Copyright. Nothing in this license is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws. 3. License Grant. Subject to the terms and conditions of this license, the licensor hereby grants you a worldwide, royalty-free, nonexclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the work as stated below: a. To reproduce the work, to incorporate the work into one or more collections, and to reproduce the work as incorporated in the collections; To create and reproduce adaptations provided that any such adaptation, including any translation in any medium, takes reasonable steps to clearly label, demarcate or otherwise identify that changes were made to the original work. For example, a translation could be marked "The original work was translated from English to Filipino," or a modification could indicate "The original work has been modified."; To distribute and publicly perform the work including as incorporated in collections; and, To distribute and publicly perform adaptations. Resource Identifier (URI) for, this license with every copy of the work you distribute or publicly perform. You may not offer or impose any terms on the work that restrict the terms of this license or the ability of the recipient of the work to exercise the rights granted to that recipient under the terms of the license. You may not sublicense the work. You must keep intact all notices that refer to this license and to the disclaimer of warranties with every copy of the work you distribute or publicly perform. When you distribute or publicly perform the work, you may not impose any effective technological measures on the work that restrict the ability of a recipient of the work from you to exercise the rights granted to that recipient under the terms of the license. This Section 4(a) applies to the work as incorporated in a collection, but this does not require the collection apart from the work itself to be made subject to the terms of this license. If you create a collection, upon notice from any licensor you must, to the extent practicable, remove from the collection any credit as required by Section 4(d), as requested. If you create an adaptation, upon notice from any licensor you must, to the extent practicable, remove from the adaptation any credit as required by Section 4(d), as requested. b. You may distribute or publicly perform an adaptation only under: (i) the terms of this license; (ii) a later version of this license with the same license elements as this license; or (iii) either the unported Creative Commons license or a Creative Commons license for another jurisdiction (either this or a later license version) that contains the same license elements as this license (e.g. Attribution-NonCommercial-ShareAlike 3.0 (Unported)) ("Applicable License"). You must include a copy of, or the URI, for the applicable license with every copy of each adaptation you distribute or publicly perform. You may not offer or impose any terms on the adaptation that restrict the terms of the applicable license or the ability of the recipient of the adaptation to exercise the rights granted to that recipient under the terms of the applicable license. You must keep intact all notices that refer to the applicable license and to the disclaimer of warranties with every copy of the work as included in the adaptation you distribute or publicly perform. When you distribute or publicly perform the adaptation, you may not impose any effective technological measures on the adaptation that restrict the ability of a recipient of the adaptation from you to exercise the rights granted to that recipient under the terms of the applicable license. This Section 4(b) applies to the adaptation as incorporated in a collection, but this does not require the collection apart from the adaptation itself to be made subject to the terms of the applicable license. You may not exercise any of the rights granted to you in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works. d. If you distribute, or publicly perform the work or any adaptations or collections, you must, unless a request has been made pursuant to Section 4(a), keep intact all copyright notices for the work and provide, reasonable to the medium or means you are utilizing: (i) the name of the original author (or pseudonym, if applicable) if supplied, and/or if the original author and/ or licensor designate another party or parties (e.g., a sponsor institute, publishing entity, journal) for attribution ("Attribution Parties") in the licensor's copyright notice, terms of service or by other reasonable means, the name of such party or parties; (ii) the title of the work if supplied; (iii) to the extent reasonably practicable, the URI, if any, that the licensor specifies to be associated with the work, unless such URI does not refer to the copyright notice or licensing information for the work; and, (iv) consistent with Section 3(b), in the case of an adaptation, a credit identifying the use of the work in the adaptation (e.g., "Filipino translation of the work by original author," or "Screenplay based on original work by original author"). The credit required by this Section 4(d) may be implemented in any reasonable manner; provided, however, that in the case of an adaptation or collection, at a minimum such credit will appear, if a credit for all contributing authors of the adaptation or collection appears, then as part of these credits and in a manner at least as prominent as the credits for the other contributing authors. For the avoidance of doubt, you may only use the credit required by this Section for the purpose of attribution in the manner set out above and, by exercising your rights under this license, you may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the original author, licensor and/or attribution parties, as appropriate, of you or your use of the work, without the separate, express prior written permission of the original author, licensor and/or attribution parties. For the avoidance of doubt: The licensor reserves the right to collect royalties, whether individually or, in the event that the licensor is a member of a collecting society that administers voluntary licensing schemes, via that society, from any exercise by you of the rights granted under this license that is for a purpose or use which is otherwise than noncommercial as permitted under Section 4(c). Moral rights remain unaffected to the extent they are recognized and not waivable by applicable law. b. c. d. e. The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by the licensor are hereby reserved, including but not limited to the rights described in Section 4(e). 4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions: a. You may distribute or publicly perform the work only under the terms of this license. You must include a copy of, or the Uniform c. f. 21 THE PHILIPPINE IT LAW JOURNAL 22 THE PHILIPPINE IT LAW JOURNAL 5. Representations, Disclaimer Warranties and 6, 7, and 8 will survive any termination of this license. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the work). Notwithstanding the above, the licensor reserves the right to release the work under different license terms or to stop distributing the work at any time; provided, however that any such election will not serve to withdraw this license (or any other license that has been, or is required to be, granted under the terms of this license), and this license will continue in full force and effect unless terminated as stated above. 8. Miscellaneous a. Each time you distribute or publicly perform the work or a collection, the licensor offers to the recipient a license to the work on the same terms and conditions as the license granted to you under this license. Each time you distribute or publicly perform an adaptation, the licensor offers to the recipient a license to the original work on the same terms and conditions as the license granted to you under this license. If any provision of this license is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this license, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable. No term or provision of this license shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent. e. UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE , INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE , MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THIS EXCLUSION MAY NOT APPLY TO YOU. 6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY ACTUAL OR COMPENSATORY, INCIDENTAL, MORAL, NOMINAL, TEMPERATE OR MODERATE , LIQUIDATED, EXEMPLARY OR CORRECTIVE DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7. Termination This license and the rights granted hereunder will terminate automatically upon any breach by you of the terms of this license. Persons, whether natural or juridical, who have received adaptations or collections from you under this license, however, will not have their licenses terminated provided such persons remain in full compliance with those licenses. Sections 1, 2, 5, This license constitutes the entire agreement between the parties with respect to the work licensed here. There are no understandings, agreements or representations with respect to the work not specified here. The licensor shall not be bound by any additional provisions that may appear in any communication from you. This license may not be modified without the mutual written agreement of the licensor and you. Creative Commons Notice Creative Commons, or its affiliates in the Philippines ("CC-PH"), is not a party to this license, and makes no warranty whatsoever in connection with the work. Creative Commons will not be liable to you or any party on any legal theory for any damages whatsoever, including without limitation any actual or compensatory, incidental, moral, nominal, temperate or moderate, liquidated, exemplary or corrective damages arising in connection to this license. Notwithstanding the foregoing two (2) sentences, if Creative Commons has expressly identified itself as the licensor hereunder, it shall have all rights and obligations of the licensor. Except for the limited purpose of indicating to the public that the work is licensed under the CCPL, Creative Commons does not authorize the use by either party of the trademark "Creative Commons" or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons. Any permitted use will be in compliance with Creative Commons' then-current trademark usage guidelines, as may be published on its website or otherwise made available upon request from time to time. For the avoidance of doubt, this trademark restriction does not form part of this license. Creative Commons may be contacted at http:// creativecommons.org/. b. c. d. The other Philippine jurisdictional licenses are: • Attribution 3.0 Philippines: Available at http://www.creativecommons.org/licenses/by/3.0/ph • Attribution-NonCommerical 3.0 Philippines: Available at http://www.creativecommons.org/licenses/by-nc/3.0/ph • Attribution-ShareAlike 3.0 Philippines: Available at http://www.creativecommons.org/licenses/by-sa/3.0/ph • Attribution-NoDerivatives 3.0 Philippines: Available at http://www.creativecommons.org/licenses/by-nd/3.0/ph • Attribution-NonCommercial-NoDerivatives 3.0 Philippines: Available at http://www.creativecommons.org/licenses/by-nc-nd/3.0/ph THE PORTING PROCESS FROM PAGE 15 additional details or suggestions acquired from the public discussions. 5. Creative Commons Second Draft Reviews Creative Commons licenses, i.e. the CCBY 3.0, the CC-BY-SA 3.0., the CC-BYNC 3.0., the CC-BY-ND 3.0., and the CC-BY-NC-ND 3.0 licenses. [9] [10] 6. Production of Human-Readable Translation Ease-of-use by non-lawyers has been Creative Common's priority since its birth. Therefore, it is important that, in addition to the ported licenses, the Project Lead produce a translation or adaptation of the human-readable layer in the national language, the Commons Deed, which gives a brief graphic explanation of what the licenses stand for. [11] 7. Ported Licenses creativecommons.org posted on In some cases, the"review" is done on a public email list, while in others, it is done offline. Either way, the Project Lead and Creative Commons work on producing a result everyone will be happy with. [8] If and when the draft has been cleared to be adopted by CCI, the public lead had to port the other five (5) unported Up to this point, creativecommons.org would have listed links pointing to the Lead's website, and to important places of national discussion and/or press coverage (as provided by the Project Lead). At this moment, however, CCI place the full final licenses, plus the Commons Deed, on the CCI website, in the national language. [12] CREATIVE COMMONS PHILIPPINES PROMOTING CREATIVE COMMONS How can one promote Creative Commons? Depending on one's area of expertise, one can get involved in Creative Commons in a variety of ways. Creators can CC license their works. Creative Commons licenses would not be of much use if there would be little enthusiasm from authors that create works. Developers can provide ideas on tools that could help users license their work more easily. Lawyers can consider giving some pro bono counseling to potential license users by educating them about the current state of copyright, the Creative Commons mission and all the legalities of using the licenses. Further, Creative Commons can be supported pecuniarily, since donations keeps the organization and its projects alive. [1] On the part of Creative Commons Philippines, Atty. Jaime N. Soriano and Atty. Michael Vernon Guerrero have taken every opportunity to promote Creative Commons licensing. For the year 2007, Atty. Soriano has given lectures on "Digital Copyright" on 21 January 2007 and 3 March 2007, in accredited Mandatory Continuing Legal Education (MCLE) seminars sponsored by the Center for Legal Education and Research, Arellano University School of Law. He also provided a lecture on "New Publishing Models in the Digital Environment" during the ‘Sub-Regional Roundtable on Copyright-Based Business: Authorship, Publishing and Access to Knowledge’ of the Philippine Intellectual Property Office in partnership with the World Intellectual Property Organization (WIPO) and the Japan Copyright Office (JCO) at the Batanes Function Room, Lower Level, Edsa Shangri-La Manila Hotel in Pasig City on 29 March 2007. He also provided a lecture on "Blogging and Copyright Law," 3rd Philippine Blogging Summit (i-Blog 3) sponsored by the UP College of Law - Internet Society Program at the School of Economics Auditorium, UP Campus, Diliman, Quezon City on 13 April 2007; and a lecture on "Use of Creative Commons Licenses in Publishing", in a seminar sponsored by the Interinstitutional Communication Workshop 2007, International Rice Research Institute (IRRI), Harrar Hall Seminar Room, IRRI, College, Laguna on 16 May 2007. All these lectures tackled Creative Commons licenses. [2] He also teaches Technology and the Law, which includes topics on digital copyright, at the Arellano University School of Law. [8] Atty. Guerrero, on the other hand, promoted the use of Creative Commons among his peers during two seminars, sponsored by the Freidrich Naumann Stiftung, that he attended, i.e. the “Strategic Planning” seminar in Gummersbach, Germany on 8-21 July 2007; and the “Education: Liberal Perspective” seminar in Negros Oriental, Philippines on 26-29 September 2007. He also provided a lecture on “Creative Commons” during the Kapihan sa PeLS Program organized by the Philippine eLearning Society at College of St. Benilde in Taft Avenue, Manila on 24 September 2007; and on "Copyright: Issues and Concerns," at the 6th National Conference on eLearning: "Learning about Technology, eLearning with Technology for the Academe and Industry", organized by the Philippine eLearning Society held at St. Martin de Porres Auditorium (Medicine Auditorium) of University of Santo Tomas on 26 October 2007. [3] He teaches Overview of Commercial Law, which includes topics on copyright, at the paralegal institute, Institute of Continuing Legal Education. [1] [2] [3] http://wiki.creativecommons.org/ Main_Page http://soriano-ph.com/about-thepublisher/lectures/ http://www.berneguerrero.com/node/3 There was no need to create a translated Deed since the Philippine jurisdictional licenses remained in English. The XHTML files were submitted by 3 December 2007, and an error in the BY-SA file was rectified on 12 December 2007. The files were made available in the staging portion of the Creative Commons website to allow further checks before making them live. The HTML files were made live by noon, Philippine time, on 15 December 2007, in time for the Creative Commons 5th Birthday Party and the CC Philippine jurisdictional license soft launch. The Philippine jurisdictional licenses were soft launched on 15 December 2007. The formal launch was set on 14 January 2007, to invite more people to join in the festivities marking the milestone. 8. The Launch Whether the launch be in form of a party, a convention, a television program, a press conference or all of the above will be up to the Project Lead. What is important to CCI is that the event attract the kind of publicity we need to make sure that people will know where to turn to for "creative work available for others to create upon and share." [13] [9] [10] CC Philippines was informed of certain developments in the CCI approach on the moral rights stipulation during Atty. Guerrero’s personal visit to the CCI office in Berlin on late July. As it is a major modification, the item was taken back to public discussion. Absent any opposition to the new wordings, the second draft was submitted to CCI by late August 2007. The six license drafts were submitted to CCI on 10 September 2007. Additional clarifications were made by CCI on the wordings of the second draft, and the draft licenses were subsequently modified. The major modifications were made early November 2007, while styling modifications and proofreading were made through mid- to late November. The final draft was submitted to CCI on 28 November 2007. [11] [12] [13] 23 THE PHILIPPINE IT LAW JOURNAL 24 THE PHILIPPINE IT LAW JOURNAL ICOMMONS ISUMMIT 2007 This article combines the iCommons documents found at the iCommons website: “iSummit07.” http:// www.icommons.org/isummit07, “Our Hosts.” http:// www.icommons.org/isummit07/hosts/, and “About.” http://www.icommons.org/about/ http://www.creativecommons.org/licenses/by/3.0/ Background “We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice and productivity in the information society. How we shall live in this new environment will in some significant measure depend on the policy choices that we make over the next decade or so. To be able to understand these choices, to be able to make them well, we must recognize that they are part of what is fundamentally a social and political choice ‘ a choice about how to be free, equal, productive human beings under a new set of technological and economic conditions.” (Yochai Benkler: "The Wealth of Networks") [1] From students protesting against DRM in the streets of Zurich, Seattle, Paris and New York,[2] to Viacom’s recent $1 billion lawsuit [3] against YouTube [4] (Google)[5] for copyright infringement, we are living through what Benkler calls a ‘period of perturbation’ where the ways in which society organizes itself are ‘up for grabs’. In this state of flux, the free Internet finds itself at a crossroads. Recent threads suggest that what started as an open, neutral network which enabled widespread innovation and creativity by individuals and communities throughout the globe, has developed to a point where in the next 10 years or so, decisions need to be made about whether the Internet retains its network neutrality or whether the industrial giants force us back into consuming a culture that is ‘ready-made’ rather than being able to produce our own information environment (Benkler). The iSummit 2007 The iCommons Summit in Dubrovnik, Croatia brought together pioneers of the free Internet to make sure that, at its crossroads, we guide the world along a path that will enable the kind of free culture and decentralized innovation that has characterised the early years of the Internet. With a focus on both ‘big ideas’ and practical examples of how open sharing on the Internet is driving business development, increased innovation, quality education and advances in science, the iCommons Summit was a must-attend for the pioneers with a stake in how the Internet must evolve in the future. “iCommons.” © 2008. Berne Guerrero. Some Rights Reserved. The derivative work is licensed under CC BY-SA 3.0 PH http://creativecommons.org/licenses/by-sa/3.0/ph/. All source images from Mecredis / Fred Benenson. "iCommons 2007." (http://www.flickr.com/photos/fcb/565027189/); (http://www.flickr.com/photos/fcb/551480041/); "@ Lazareti." (http://www.flickr.com/ photos/fcb/551490055/); "Lawrence Lessig, Jonathan Zittrain." (http://www.flickr.com/photos/fcb/555983182/); "Kevin Driscoll." (http://www.flickr.com/photos/fcb/573125672/); "Star Wreck." (http://www.flickr.com/photos/fcb/551865834/); (http://www.flickr.com/photos/fcb/551868702/); "img_2151.jpg." (http://www.flickr.com/photos/fcb/557891015/); (http:/ /www.flickr.com/photos/fcb/551260858/); "Yochai Benkler." (http://www.flickr.com/photos/fcb/556026542/). CC BY-SA 2.0 http://creativecommons.org/licenses/by-sa/2.0/deed.en [1] [2] [3] [4] [5] [6] http://www.benkler.org/wealth_of_networks/index.php/Main_Page http://wiki.freeculturenyu.org/wiki/index.php?title=DRM_Protest http://lessig.org/blog/archives/003734.shtml http://www.youtube.com/ http://www.google.com/ http://creativecommons.org/ [7] [8] [9] [10] [11] [12] http://lessig.org/blog http://joi.ito.com/ http://wikipedia.org/ http://blog.jimmywales.com/ http://lindenlab.com/ http://lindenlab.com/management With an impressive lineup of iconic free Internet philosophers, we heard from people like Creative Commons [6] CEO, Larry Lessig,[7] CC Chairman and Digital Entrepreneur, Joi Ito, [8] Wikipedia [9] Founder, Jimmy Wales[10] and CTO of Linden Labs,[11] Cory Ondrejka.[12] We also added some new voices to the debate in 2007, including India’s Lawrence Liang[13] who has become renowned for his considered commentary on the positive impact of piracy in developing countries, Jonathan Zittrain[14] discussed themes from his new book ‘The Future of the Internet and How to Stop It’, Benjamin Mako Hill[15] from MIT[16] spoke about competing visions of ‘free culture’ from the free software perspective, and Becky Hogge[17] from the Open Rights Group,[18] who discussed successful campaigns to rid the world of restrictive IP laws. Apart from the insight of the great ‘philosophers of the commons’, the Summit also brought together practitioners, activists and technologists working on concrete projects that continue to inspire us about the possibilities of a free culture on the Internet. In these workshops, leaders of the open education movement seeded new ideas for global cooperation, and participants shared insights on how open content is planned, strategised and built from the ground up. We shared ideas on how to curate open content using tools like del.icio.us and concepts like ‘crowd sourcing’ and ‘peer production’. And we shared experiences on how to increase government use of open access licensing for publicly-funded materials, and looked at new opportunities to fund open content using alternative business models. And when the sun set in Dubrovnik, the Summit hosted a series of concerts by local musicians, screenings of open movies from around the world and an exhibition by six of the world’s most innovative artists exploring concepts of shared ownership and distributed creativity. Lessons Learned Everyone who builds the commons has something important to contribute. The education track, facilitated by Allen Gunn [13] [14] [15] and Mark Surman, took this idea to its obvious conclusion, facilitating an enormously successful stream and emerging with a new community of individuals committed to establishing a working partnership and with a plan of action to follow over the coming months. Humility of leadership paves the way for global ownership of the commons. When Larry Lessig invited the emerging leadership of the commons community to take the reigns and diversify intellectual leadership around free culture, he showed a rare humility that he will be remembered for in the stories about this movement. Games are great way to build new alliances among the global commoners. A new issue entered the commons arena this year – that of poker and the opportunities for the playing of poker to encourage critical thinking, strategic thinking and encourage cross-cultural understanding – all important skills in understanding how to facilitate the revolution in commons-based peer production around the world. Respect and understanding of the vast economic divides that affect the commons is vital to our global strategy. Lawrence Liang invited members of the “legal commons” to begin to understand how the problems of infrastructure are being solved by piracy where the “third world city meets the world of new media.” Liang invited those who believe that the battle to free culture can only be solved using legal means to recognise and respect those who have developed a free culture outside the law, and how this fight will have different parameters in different parts of the globe. We need to get creative about inclusion. USC’s Center on Public Diplomacy and Linden Lab showed us how to include an extra 500 people in the conference by streaming keynotes and accepting questions from an audience in Second Life. A mentorship programme by Creative Commons International affiliates initiated at the Summit will hopefully add support to country affiliates, but we need to do much more to enhance inclusion [16] [17] [18] by people from Africa and other developing countries. The iSummit is 95% community and 5% technology. As the community gets involved in building new programmes and developing the format of the event, we are starting to see something that is truly revolutionary. The iSummit was co-hosted by the Multimedia Institute (MI2) in Croatia. The MI2’s activities range from informal education and training in technology and digital media, free software development, archiving and publishing of digital and print media, cultural management and content curation, and policy and advocacy work. About iCommons Incubated by Creative Commons, iCommons is an organisation with a broad vision to develop a united global commons front by collaborating with open education, access to knowledge, free software, open access publishing and free culture communities around the world. Using the annual iCommons Summit as the main driver of this vision, iCommons will feature projects that encourage collaboration across borders and communities, and promote the tools, models and practice that facilitate universal participation in the cultural and knowledge domains. The Summit will collaborate with organisations and communities from around the world to demonstrate and share best practice and discuss strategies for continuing the positive impact that ’sharing’ practices are having on participation in the cultural and knowledge domains. During the year iCommons will incubate projects that cross borders and unite commons communities, acting as a platform for international collaboration towards the growth and enlivening of a global digital commons. Thanks to scholarships provided by the commons community, through Creative Commons International, Atty. Jaime N. Soriano and Atty. Michael Vernon M. Guerrero were able to attend the iSummit conference in Croatia. http://en.wikipedia.org/wiki/Lawrence_Liang http://en.wikipedia.org/wiki/Jonathan_Zittrain http://mako.cc/copyrighteous/ http://web.mit.edu/ http://en.wikipedia.org/wiki/Becky_Hogge http://www.openrightsgroup.org/ 25 THE PHILIPPINE IT LAW JOURNAL 26 THE PHILIPPINE IT LAW JOURNAL PHILIPPINE COMMONS DEVELOPING A PHILIPPINE COMMONS BY MICHAEL VERNON GUERRERO http://www.creativecommons.org/licenses/by-sa/3.0/ph Attending the iSummit in June 2007 was eye-widening, not merely eye-opening. This was more so when there was an opportunity to join the open education track,[1] one of four tracks available at the three-day conference. Although one could easily expect certain innovations, as one has affiliated himself to a commons-related organization, no adequate preparation could be had in that instance inasmuch as the dynamics of the sessions therein, such as the use of “spectograms” in the first session “Towards an Open Future for Education,”[2] were in contrast to the normal systems of delivery of one may be accustomed to relatively traditional institutions, else society. Speed geeking in the open education track[3] provided ample time, although abbreviated, to be familiarized with various initiatives and projects in different jurisdictions, such as the OERcommons, Free High School Science Textbook (FHSST), CC Netherlands, NEALS, WikiEducator, Acawiki, Educalibre, One Laptop Per Child (OLPC), Meadan, and LeMill. The idea and the means utilized in the FHSST project proved very interesting since the project highlighted solutions relating to the Philippine public textbook bidding issue then popular in the local news. [4] Searching the Internet for similar projects in the Philippines during the breaks in the iSummit, and in the months thereafter, manifested the reality of dispersed initiatives, albeit some with subdued footprints, that benefit or could benefit society within the context of the commons, from local players. Still, a bigger stage may be available if various stakeholders find ways to collaborate to achieve their goals. Besides the LawPhil Project of the Arellano University School of Law, which [1] Image: “Collaboration for the commons: Spokes of iCommons” © 2008. Berne Guerrero. Some Rights Reserved. The derivative work is licensed under CC BY-NC-SA 3.0 PH http://creativecommons.org/licenses/by-nc-sa/3.0/ph/All source images from Mark Surman. "iSummit 2007" (http://www.flickr.com/photos/marksurman/566358017/; http://www.flickr.com/photos/ marksurman/565994442/; http://www.flickr.com/photos/marksurman/566371067/; http://www.flickr.com/photos/ marksurman/566380099/; http://www.flickr.com/photos/marksurman/565990318/; and http://www.flickr.com/photos/ marksurman/566381631/) incidentally is now Creative Commons licensed, some noteworthy efforts are those by the Philippine e-Learning Society,[5] filipiniana.net, wikipilipinas.org, Bluepoint Foundation, [6] Bayanihan Books,[7] among others. Truly, what seems necessary at this point in time are opportunities for collaboration, especially if they favor the commons. Following the footsteps of Creative Commons International in the formation of the iCommons, Creative Commons Philippines is currently spearheading the paving of an avenue for collaboration through the Philippine Commons.[8] The Philippine Commons is envisioned to be a movement-organization which aims to develop a national front through the collaboration of communities involved in free software, open education, access to knowledge, open access publishing, free culture, legal commons, and similar pursuits. The public launching of the [4] [5] [6] [7] [8] [9] Creative Commons Philippine jurisdictional licenses, on 14 January 2008, serves as a preliminary means to gather some of the stakeholders in the commons, and communicate with each other what can be done, whether bilaterally or multilaterally. Nevertheless, the direction of the Philippine Commons lies with the Filipino community. Its future depends upon the eagerness of stakeholders to contribute into the commons pool. Lastly, the Philippine Commons website[9] aims to provide articles and updates to events relating to the commons in the Philippines, and also link to developments in the commons occurring in the international stage. The domain was acquired in December 2007, in time for the soft-launching of the Creative Commons Philippine jurisdictional licenses and Creative Commons 5th Birthday Party. [2] [3] http://wiki.icommons.org/index.php/ISummit_2007/ Open_Education_Track http://wiki.icommons.org/index.php/ Towards_an_Open_Future_for_Education http://wiki.icommons.org/index.php/ Open_Educational_Project_Showcase http://berneguerrero.com/node/38 http://www.elearning.ph http://www.bluepoint.com.ph http://blog.bayanihanbooks.org/ http://www.philippinecommons.org http://www.philippinecommons.org CREATIVE COMMONS PHILIPPINES AND ASIACOMMONS CC-PH SET TO PARTICIPATE IN THE ACIA: INTERNATIONAL WORKSHOP ON ASIA AND COMMONS IN THE INFORMATION AGE This article combines the contents of Welcome (http:// meeting.creativecommons.org.tw/), Original Proposal (http:/ /meeting.creativecommons.org.tw/ac:original-proposal), and Open Legal Content And Creative Commons (http:// meeting.creativecommons.org.tw/program:open-legal-contentand-creative-commons) shared under CC-BY-SA 3.0 http:// www.creativecommons.org/licenses/by-sa/3.0/ http://www.creativecommons.org/licenses/by-sa/3.0/ During the Birds of a Feather (BoF) meeting held at Revelin, Grad, Dubrovnik, Croatia, during the iCommons Summit in June 2007, the idea to have an "Asia Commons" meeting by December 2007 was brought to the forefront. Since it was agreed that Taipei would be a convenient location to hold the meeting, Creative Commons Taiwan was asked to plan for the said meeting. Creative Commons Taiwan subsequently proposed that the meeting be set on 1920 June 2008. A Pre-meeting of Creative Commons jurisdiction project teams, and reception for all workshop participants is set on the afternoon of 18 June 2008. The venue would be the Academia Sinica located at 128 Academia Road, Section 2, Nankang, Taipei 115, Taiwan. In the BoF meeting during the iCommons Summit, the following objectives were proposed -- which have since been adopted by the ACIA workshop -- (1) Strengthening the “Asia Commons” by bringing in more members and improving links to related organizations within the Asia Pacific region; (2) Promoting the commons in the region, and providing a forum to develop practical strategies for this promotion; (3) Providing a forum for industry engagement, and in particular identifying and presenting successful commercial uses of open content licensing within the region; and (4) Providing a forum for discussion of topics of importance to the Asia Commons (e.g., the meaning of ‘open’ in our age, and the history and role of the commons in Asia). The workshop aims to be an open venue for people to formulate Asia Pacific perspectives on the issues of commons in our age. The language of the meeting is English. The two day seminar hosts a battery of speakers, whether in a panel or speaking individually. The full program of the international workshop can be found at http://meeting.creativecommons.org.tw/ ac:program Creative Commons Philippines will speak on Open Legal Content in the morning of January 20 within the panel tackling “Case studies and project showcases.” The abstract of the piece provides: Laws and jurisprudence, as they intimately affect the public, should remain public and not locked as proprietary content by way of the creation of the derivative work of "collection." It is suggested that proponents of the commons, in their jurisdictions, find ways of gathering public domain materials to equate the collections being pursued by proprietary entities, especially in the absence of government effort to provide the same, in the same direction that FLOSS has been made an alternative to the previously predominant proprietary software in the market. Although it may be contended that this line of project(s) is predominantly in the realm of law practitioners and law students, the direction, however, assures the availability of materials that would aid ordinary citizens to be informed of their rights, obligations, and potential liabilities as provided by public documents. The availability of the said resources also provides for the raw data that could be useful in the development of other value-added law-related documents, which if released similarly, could benefit the commons and/or society in general. It is with this background that emphasis is being made to the region-wide cooperation being cultivated to gather multi-jurisdictional legal content. The Philippines, for example, has multiple public resources available to satisfy aspects of legal research. One of these is the LawPhil Project developed by the Creative Commons Philippine jurisdiction lead public institution, Arellano University School of Law. In turn, the LawPhil Project, among other entities in the region, has contributed to the content available in the Asian Legal Information Institute resource. Further efforts remain to be important to support this direction. Following the pattern of development of this class of legal content, fresh efforts are being exerted to create another class of content, i.e. valueadded law-related documents, that are to be released to the commons, preferably through Creative Commons licensing. This is to provide alternative to proprietary law books, which are usually limited by printing considerations (such as content volumeto-price ratio, update requirements viz existing inventory, etc.) The availability of licensed legal content can provide substantial impact in law education, the delivery of legal services, etc., that could inure to the benefit of society as well. Active participation by legally-interested individuals in the development of a single comprehensive resource is also being contemplated. ACIA is organized by people at Creative Commons Taiwan, and National Digital Archives Program, Taiwan (Cultural Academic Socio-Economic Educational Promotion Program, and The Academic Applications and the Dissemination of the Cultural Heritage Project) in collaboration with Creative Commons jurisdiction project teams in the Asia Pacific region, Creative Commons San Francisco and Berlin offices, and with the assistance of colleagues at Arellano University School of Law, Harvard Law School, Mississippi College School of Law, Law School of Renmin University of China, The University of Hong Kong, Queensland University of Technology. The host research institutes at Academia Sinica are Institite of Information Science, Institutum Iurisprudentiae, Research Center for Information Technology Innovation. To know more, see meeting.creativecommons.org.tw/ http:// 27 THE PHILIPPINE IT LAW JOURNAL 28 THE PHILIPPINE IT LAW JOURNAL CREATIVE COMMONS PHILIPPINES CC PHILIPPINE LICENSE SOFT LAUNCHING AND THE CC 5TH BIRTHDAY PARTY This article remixes the articles “Philippines introduces locally ported Creative Commons licenses” (http:// creativecommons.org/press-releases/entry/7909), “Global CC Birthday Parties: Catch the Live Stream!” (http://creativecommons.org/weblog/entry/7913), both written by Michelle Thorne; “One Big Thank You.” (http://creativecommons.org/weblog/entry/7925) written by Michelle Reeder; and “On what exactly happened Saturday night.” (http://lessig.org/blog/ 2007/12/on_what_exactly_happened_satur.html) written by Lawrence Lessig. Philippine festivities On 15 December 2007, in Pasay City, the 42nd locally ported Creative Commons licensing suite was launched for the Philippines. The Creative Commons licenses, now legally adapted to Philippine law, enable authors, artists, scientists, and educators the choice of a flexible range of protections and freedoms in efforts to promote a voluntary “some rights reserved” approach to copyright. This served as a prelude to a larger celebration in January 2008, CC Philippines unveiled the licenses on said 15th of December at the event held in Arellano University’s School of Law. Dr. Catharina Maracke, Director of Creative Commons International, thanked the CC Philippines Team for all their efforts, and she remarks, “The licensing project in the Philippines is a strong step towards strengthening and cultivating the global commons. The Philippines joins neighboring Malaysia, launched two years ago, in offering completed localized CC licenses. With upcoming jurisdictions in Singapore, Thailand, Vietnam, and Indonesia, this region within Asia will continue to thrive and enjoy its vibrant remix-reuse community.” The Creative Commons team members in the Philippines, lead by Atty. Jaime N. Soriano, have worked under the auspices of the e-Law Center at the Arellano University School of Law and in collaboration with Creative Commons to port the licenses. Atty. Jaime N. Soriano, jurisdiction project lead of CC Philippines, reintroduced Creative Commons and alternative licenses to the participants. Atty. Michael Vernon M. Guerrero, jurisdiction deputy project lead of CC Philippines, subsequently introduced the licenses by providing a brief summary to the Image: "Five years" © 2008. Berne Guerrero. Some Rights Reserved. CC BY 3.0 PH http://creativecommons.org/licenses/by/3.0/ph/ . Source images from Arellano University School of Law, the public lead institution for Creative Commons in the Philippines. modifications introduced to jurisdictional version of the code. The concept of the Philippine Commons -- a collaboration fostering alternative licensing, free and open source software, open education, and free culture in the region -- was also introduced. The soft launch event continued in the mid-afternoon as a birthday party for Creative Commons, as part of a series of synchronized celebrations worldwide to commemorate Creative Commons’ fifth year. Atty. Soriano serenaded the crowd, who shared in the food and beverages. This was the first time, the Philippines joined other jurisdictions in celebrating Creative Commons birthday. Creative Commons 5th Birthday There were ten (10) announced CC Birthday Parties held on 15 December 2007: Bangalore (India), Beijing (China), Belgrade (Serbia), Berlin (German), Brisbane (Australia), Los Angeles (United States), Manila (Pasay, Philippines), New York City (United States), San Francisco (United States), and Seoul (South Korea). Over 1000 people around the world celebrated CC’s 5th birthday. Since the “CC@5” parties span six timezones, the generous team at n3tv.it, alongside Berlin’s seasoned Erik Stripparo, helped stream the CC Birthday Parties around the globe, starting in Berlin December 14th at 2000 UTC (2100 Central European Time). One of the most notable parties was that held in San Francisco, where Lawrence Lessig announced the upcoming CC license integration by Current TV, the upcoming release of a beta protocol to support the new tool "CC0," the developing venture with public.resource.org to collect and make available machine readable copies of government documents and law to create Legal Commons (beta), the CC+ protocol which is also being baked "into the system" of Yahoo, the success of the Annual Campaign which exceeded its target by more than $40,000, and [5x5] Challenge which ensures core funding for Creative Commons for 5 more years. If you partook in the celebrations - please tag your photos or videos with CC5Bday so that everyone may enjoy all the celebrations that happened on 15 December 2007.
