Making the Creative Commons Smarter

Lance Koonce,

Lance Koonce, Davis Wright Tremaine

Guest post: Last week at the terrific inaugural RightsTech Summit, a wide range of very knowledgeable people came together to discuss the current state of digital rights management, and more importantly, the direction that new technologies are taking this field.

If I had to sum up the common themes from the event in two words, they would be:  Metadata and Standardization.

Figuring out if, how much, and which metadata about digital assets – such as a song, or an e-book – can be shared, especially among companies with different goals and interests, was one sub-theme. Also discussed was the right mix of technologies to facilitate sharing and tracking of metadata; of course, blockchain technology was a key topic of discussion.  But we also covered other distributed technologies that address not just the management of the metadata, but also of the underlying content.

Standardization of the metadata also took center stage, especially during Benji Rogers’ keynote/fireside chat discussing his dot-blockchain project and the Berklee Open Music Initiative. Another key issue involving standardization was interoperability among content platforms.

Something that struck me was the extent to which there was agreement among participants — ranging from start-ups to established industry players — that many of the best new use cases being proposed for the “rightstech” industries depend on contracts for digital assets being standardized and simplified, and ultimately rendered in machine-readable code.

I moderated a panel on smart contracts, and my panelists were the brilliant Sophie Goosens and Jim Griffin (Jim, I should add, took the panel down a very interesting and not-so-SFW rabbit hole with an anecdote nominally about “transparency” that somehow turned out to be about Swedish saunas). We teased out the differences between “smart code” – agreements between parties coded entirely on a blockchain – and legal contracts with portions that can be reduced to code.  But it all comes down to standardization of schemas.

A “Commons” Model

One of the things I mentioned was what I called the Creative Common-ization of areas where rights issues can be addressed with simple menus of contracts like those offered by the Creative Commons organization. Creative Commons was very much on my mind because I was in the middle of a project proposed by Jesse Walden and Denis Nazarov at Mediachain involving the creation of a hypothetical CC license that provides for “gratitude” back to creators.

Sophie Goosens (left) and Jim Griffin

Sophie Goosens (left) and Jim Griffin

What we mean by gratitude is a means of giving a creator who agrees to share a work freely under a CC license, without seeking financial compensation, something back other than mere attribution.  The thought is to provide a feedback loop of data: In particular, information about exactly where the author’s work is being used.  The hope is that if authors begin asking for this, and people who use others’ works agree to provide it, eventually everyone, including the big social media platforms, will agree to provide that type of usage back to authors as well. This would allow authors, musicians, artists and other creators to have good data on usage of their works, which will benefit them in many ways.  These feedback mechanisms would likely be best realized by utilizing blockchain technology, which allows the association of metadata about works to be kept on a decentralized network that everyone – the creators, the platforms, the users – can access.

The result of our project can be found at a blog post here that describes our proposed license, with a link to its terms.

I’ve also written a companion post in which I describe how the creative commons approach springs from the same theoretical underpinnings as copyright law generally: The need to increase the human knowledge by enhancing the public domain (although many argue that this underlying rationale for copyright has been diminished or distorted over the years).

I’ve sometimes encountered people who look somewhat skeptically on the “commons” and argue that too much of a focus on free sharing undermines that system (there’s a tendency to associate open licensing with piracy, which is erroneous).  My post attempts to explain that this is a false dichotomy:  Efforts like Creative Commons serve a purpose that was simply not being served at all by the existing tools at creators’ disposal twenty years ago.  While it was certainly possible for an author to offer someone a royalty-free license for use of his or her work, there was no ready mechanism for allowing free downstream sharing as well.  The suite of CC template licenses changed all that, and the success of that schema is proof that many creators are happy to share their works with no expectation of financial reward.

At least, up to a point.  Creators who want to make a living off of their creations still need a system for offering content for a price, so for the foreseeable future the “open license” system will live right alongside the pay-for-access system.  Indeed, some creators who release content on a free basis, under a gratitude license, may later be able to convert their usage information – proof of their popularity – into financial rewards for new works they create.  Or maybe they won’t: Who knows what types of new ways of valuing content we’ll discover if we provide new tools?  Ultimately, it’s up to the creators to decide.

But that’s what I mean by the Creative Commonization of the flow of digital assets, more generally.  All of these systems, whether they exist now or are being developed, and whether they encourage free sharing or facilitate licensing between commercial entities, will need smart, simple contract templates, ultimately expressible in code, to eliminate inefficiencies and take best advantage of the new tech.

What I liked about the RightsTech Summit was that people with different visions for how the content world may work in the future, across multiple industries from music to television to publishing to film, all gathered in a collaborative environment to share their thoughts about the emerging technological tools.  Kudos to Ned and Paul for organizing, and I can’t wait to see what comes out of this effort to find “common” ground.

Lance Koonce is a partner at Davis Wright Tremaine LLP and authors the Creative Blockchain blog.

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