Writings on technology and society from Wellington, New Zealand

Thursday, November 22, 2007

Copyright and the creative commons

This week on Radio New Zealand National I talked about copyright and the Creative Commons. I started the item by playing “Imbube” – the first track on Renaissance, a CD by the Soweto String Quartet, which sounds oddly familiar until you realise its striking similarities to “The Lion Sleeps Tonight”.

From there the discussion went on through the good and the bad of copyright, and how the Creative Commons represents a way to prevent copyright being used to lock up our culture.

I end with a link to a great video by Laurence Lessig on how copyright is being used to strangle culture. Enjoy!

Q: Colin, we’ve talked about copyright before – you have some problems with copyright law as it stands, don’t you?

A: Yes, but let’s just pick up on that last song – Mbube means ‘lion’ in Zulu, and the song was a hit in South Africa during the 1940s. Then it got picked up by the US folk singer Pete Seeger, who turned it a song called “Wimoweh” – he misheard the chorus of the song “uyimbube” – meaning “you’re a lion”. Several people had hits in the US and UK with Wimoweh during the 1950s, then it became “The Lion Sleeps Tonight” and a whole lot more people covered it.

Then Disney picked it up as part of The Lion King. In 2000 a South African journalist estimated that the song had made $15m just from the song being in the Disney movie.

Q: So the songwriter did pretty well out of it!

A: Not really, because he’d sold the song to Pete Seeger for a hew hundred dollars back in the 1940s. He died in poverty. That’s the point of the story, really, that copyrights often end up benefiting someone other than the person who does the creating. In the end, the songwriter’s heirs reached a settlement with Disney and another US music company – but that didn’t happen until after a book about it, and a PBS TV documentary had been broadcast on US TV. If you want another example, check out how the Rolling Stones have successfully claimed all the songwriting credits for the Verve’s hit, Bittersweet Symphony.

A: Copyright law around the world is pretty much not suited to the age of the Internet. And that’s a problem for everyone.

Q: So how does it need to change?

A: Copyright law needs to recognize that creativity in a networked world works by people building on each other’s work. Our whole culture, our whole technology is built on people re-using others’ ideas and adding to them. That’s literally true by the way. An example: cars run on roads made of tar seal, or tarmacadam as it was called after its original inventor. Did John McAdam’s estate try to sue Henry Ford for using the road surface he had invented? We all use the Internet, in another example. The inventors of the Internet definitely don’t try to charge every person and every web site that’s connected to it. The main reason the Internet took off – apart from its technical brilliance, of course, was that it is unencumbered by copyrights and patents.

Q: Are we talking open source again?

A: That’s not the point I’m making here, although we’ll probably get to open source soon. No, the point is that the Internet, as I‘ve said before, is actually a set of detailed rules and recipes which explain how to connect computers together so they can pass information transparently around the world. And those rules took a lot of design, they represent some very fine engineering, and they have been made available to anyone to implement at no cost and with no restrictions.

Let’s be really clear about this: the Internet would not exist if the people who designed it had used copyright to control the rules which make it work. Those rules absolutely could have been controlled through copyright and the inventors might have money that way. But they chose not to – actually, it was the US Government, because it paid for the design – they chose to release this stuff into the wild as it were, and look where we are at now. It’s not to argue that the world has received a vastly greater benefit through that release. We should all thank Uncle Sam for that.

Q: But people need copyrights to make money!

A: The stated reason for copyrights is to encourage innovation. Copyright came into being in the century after the printing press – that’s no accident. Before that there hadn’t been a way to cheaply copy creative works so it hadn’t been an issue.

The argument about people profiting from their ideas runs that, if I have no way of profiting from some work because anyone can just copy it when I have finished, why would I bother creating the work in the first place? And that’s a valid question. I can think of reasons why people would create works if they weren’t going to be able to money for them – approbation of the their friends, a creative urge, but those reasons may not be sufficient to generate all the art, music and software that we use and enjoy. Then again, they might be sufficient. We just don’t know because we haven’t tried living without copyright for a while.

If copyright didn’t exist and we were trying to write a case to introduce it, that might be quite a hard case to write. You would have to show that the benefits to people making copyrighted works would exceed the costs to society and the economy due to their use of copyright to suppress the innovation of other people building on each others’ work. I’m not sure I could make that case. The entirety of Hollywood and the music business, for instance, is about 10% of the size of the global IT industry.

Q: Are you saying we should get rid of copyright?

A: No, definitely not. Copyright can be used to very good things, and we’ll come to that in a minute. I am saying that we should not be expanding copyright to provide further benefits to copyright holders to the detriment of everyone else.

Q: Are we expanding it?

A: Apparently so. There is a bill before the House which we’ve talked about before and I’ll get to that in a minute. But first – let’s just consider that both Congress and its European equivalent have been persuaded to increase the term on existing copyrights over the last decade or so. The lobbyists did this by having famous musicians turn up, sing a bit, and then sob about how their songs would soon come out of copyright and so their children would wind up destitute, or, you know, have to get jobs like the rest of us.

As I just said, there is absolutely no evidence that expanding copyrights improves innovation. However, there are some significant beneficiaries to copyright expansion – many music and film copyrights are owned by a few large companies, extending copyright terms greatly increases those companies asset bases and their share prices. And, like I keep saying, it suppresses the kind of innovation that we get when people are free to recycle each others’ ideas, like the Interne itself. Frankly, I think it’s craven behaviour on the part of politicians when they cave into this kind of pressure.

Q: Is there evidence of lawmakers bowing to this kind of pressure?

A: Overseas, certainly. In the US campaign donations are very large, but they are also transparent. There’s a whole website devoted to tracking who is paying how much to which senators. Have a look at, I’ve put it into the links for today. And in New Zealand politicians are subject to lobbying, certainly, but I’m sure they are all honestly doing their best for the country and not in anyone’s pocket. That’s just not how things work here.

Q: And does the New Zealand bill extend copyright terms?

A: No, but it contains other measures which expand the reach of copyright. And it’s clear that those are also being pushed by the US – David Cunliffe, the Minister of IT as good as said so – he referred to Uncle Sam – at a breakfast meeting in Auckland last week. Let’s hope the New Zealand government holds the line. There’s a lot which needs fixing about the Copyright Bill and we’ve gone through that before, but let’s just say that as framed the bill introduces or maintains some of the harsher restrictions in US law without them being balanced by the protections that Americans get from their constitution.

Our copyright law – which still makes it illegal to copy a CD you have bought to your own iPod – is being blamed for the failure of one of the big CD chains today. After all, if people don’t want to break the law and they want to use their iPod, they have buy music form an online download store like the iTunes music store or Amazon. If they don’t care about breaking the law they can just download music for free, illegally. Either way the CD company misses out on a sale. This is squarely the result of New Zealand law not keeping up with the times. We’ve iPods for over ten years now! I’ve put in a link to another commentator on this one.

I want to go on and talk about some of the good things that copyright enables. We talked about the General Public Licence a couple of months ago – that’s one of the open source licences, it’s the one which Linux is licensed under for instance, and it uses copyright to ensure that people can’t capture GPL software.

Q: How does that work?

A: If I wrote a piece of software and decide to licence it under the GPL, that means that I have to make the source code available with the software. You could download that software, and the source code if you want it, and if you want to change it and you have the time and the skills, you can build on it, make it into something much cooler, and you can distribute that for others to do likewise with, but the really important thing about the GPL is that it stipulates that when you release your changes they have to come out under the GPL as well, with source code, and so it goes on. The GPL stops someone from taking open source software and building it into their system without passing the benefits on to the wider community – it prevents capture, if you like.

The GPL rests on copyright law, yet its effect is to make things more open, not less. Some people have likened the GPL to ju-jitsu, a martial art which uses an opponent’s strength against him.

And we should note that not all open source software is GPL – there are other licences mainly more permissive, some of which allow open source code released under them to be taken into other software without acknowledgement, or without the source code being published. For quite a while there was Berkeley-licensed open source software in Windows – it may still be there. People who write open source software are free to choose any licence they want to for whatever reason they want to – unless they are modifying something that is already under the GPL, then they have to stick with the GPL.

Q: The GPL is about software. Is there any equivalent for other kinds of work?

A: Yes there is. The Creative Commons – that’s a form of simple licence that people can attach to their work that allows others to copy it, subject to attribution, and subject to your choice of whether people can make derivative works or not, and if they do, whether they have to let others do the same, like the GPL does for software, or whether others can do what they like, like the Berkeley style open source licence. Creative Commons licences have been around for a while but they need to be customized for each country’s legal code, and a version has just been launched in New Zealand. If you have web pages or a blog, it’s really worth thinking about putting a Creative Commons licence on to it. By doing so, you are cutting away some of the uncertainty and restrictions which copyright places on our culture without losing control over your own work. I’m going to be donig so on my blog.

The Creative Commons is in today’s links, its really well worth while going to them and clicking around in the history. By the way, the Creative Commons was originally set up by a US law professor named Laurence Lessig, and he has some pretty sensible ideas about copyright. I’ve put a video of Lessig speaking – he’s a brilliant presenter, by the way, into the links for today. I know that Lessig and his ideas are being taught in some intermediate schools so maybe there’s some hope for our children’s generation!


As always, discuss this at

The PBS documentary about The Lion Sleeps Tonight

Wikipedia on Bittersweet Symphony

Aardvark News on our copyright law the demise of a local CD retailer.

The GPL or General Public Licence, and a comparison of different open source licensing models.

Creative Commons, the global site and the New Zealand site – if you have a web site or a blog, please consider adding one of these licences to your site.

Laurence Lessig speaks about copyright and remixing others’ work – a must-watch video, broadband only.

posted by colin at 10:50 am  


  1. Hi Colin,
    re the subject of Creative Commons, I thought you might be interested in this:

    Cheers …… Brett

    Comment by Brett Roberts, Microsoft NZ — 1 September 2008 @ 11:25 pm

  2. Brett,
    Is the Microsoft Office source code available under a Creative Commons licence? Then I might be interested.

    Comment by Tim McKenzie — 3 September 2008 @ 8:09 pm

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