[Commons-Law] Critique of CC

[Lawrence Liang]

Hi All


An interesting paper that critiques the limits of a private ordering system
in the facilitation of the commons


lawrence 


Niva  Elkin-Koren, "What Contracts Can't Do: The Limits of Private Ordering
in Facilitating a Creative Commons" . Fordham Law Review, Vol. 74, 2005

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=760906
       
Abstract:     
Creative Commons is a non-profit U.S. based organization that operates a
licensing platform to promote free use of creative works. The idea is to
facilitate the release of creative works under generous license terms that
would make works available for sharing and reuse. Creative Commons advocates
the use of copyrights in a rather subversive way that would ultimately
change their meaning.

The paper expresses a skeptical view of this worthy pursuit. While I share
Creative Commons' concern with copyright fundamentalism, which inevitably
leads to the propertization of everything of value, I am more skeptical of
its strategy. The paper explores the legal strategy of Creative Commons and
analyzes its potential for enhancing the sharing, distribution and (re)use
of creative works.

Creative Commons as a social movement creates a platform for a wide range of
ideologies that share an interest in enhancing access to works. This turns
out to be a great advantage for a social movement that is seeking to gain a
wider public support. Creative Commons' legal strategy reflects the lowest
common denominator: empowering owners to govern their creative works. At the
same time, however, Creative Commons lacks a comprehensive vision of the
information society and a shared definition of the prerequisites for open
access to creative works. The end result is ideological fuzziness.

The paper examines the strategic choice of Creative Commons to rely on
property rights in its effort to subvert the meaning of copyright. The
analysis shows that reliance on property rights, in the absence of a shared
sense of free access, may simply strengthen the proprietary regime in
creative works. It may reinforce the property discourse as a conceptual
framework and as a regulatory scheme for governing the use of information.

The fuzziness of ideology may further lead to the proliferation of
contracts. Creative Commons' strategy presupposes that minimizing external
information costs is critical for enhancing access to creative works. The
lack of standardization increases, however, the cost of accessing creative
works, and may further enhance the chilling effect of copyright law.

The paper argues that creating an alternative to copyright may require
standardization. To become successful, Creative Commons would have to trade
the sovereignty of owners for the reduction of transaction cost that would
enhance access to creative works.