Florian Cramer <[EMAIL PROTECTED]> said:

> Am Freitag, 01. Juli 2005 um 18:53:51 Uhr (+0100) schrieb David M. Berry:
>> These licenses are  written explicitly against the presuppositions and
>> caveats of the  Creative Commons licenses which (un)consciously seek
>> to use culture  as purely a resource. Instead these licenses are
>> anti-licenses;  ethical frameworks or chromosomes of social practices.
> I would have two other suggestions for people who want to make their work
> freely available, but dislike CC:

here follows a text written for the Arteleku (http://www.arteleku.net)
review Zehar in which I try to compare the options taken by CC and Licence
Art Libre 

Creative Commons in context

Adaptation of the Creative Commons (CCs) to various European legislation
has provoked a flurry of articles in the press. The reason most often
adduced for their importance is that they would make it possible for many
Internet users to do something legally which could currently land them in
court downloading music free of charge. The Creative Commons would put an
end to the war between the distributors, users, artists and producers.

Our view of this "conflict" may be conditioned by the polarisation of the
participants. In the current debate, the conflict is defined as being one
of simple opposition: bootleggers v large companies. We consider this
polarisation to be dubious, given that it silences the space from which we
seek to understand/ place the artists/writers/coders/researchers, etc. It
is built on a twin amalgam:
 - the economy of musical creation backs a war which faces off the large
companies against the users of music files, strategically likened to
 - the artistic economies are reduced to the paradigm of commercial
musical production.

It is really quite disappointing that, in this scheme of things, the only
position that remains for artists is very close to that of the producers
-- poor creators pillaged by the greed of the Internauts. Thus, the
artist, as if under a spell, expresses solidarity with his or her
"distributor". If we conduct a bit of research, however, we clearly see
that artists are far from being unanimous on this question. Many consider
that citation, "sampling", "remix" and reappropriation of existing
resources all form part of a certain artistic practices. And there are
many and sometimes concurrent reasons why large numbers of artists
severely criticise the notion of (the rights to) authorship. It would be
difficult to find a common thread to the postmodern reinterpretations of
Sherrie Levine and Elaine Sturtevant; the pop appropriation of Warhol or
Lichtenstein; the deterrent policy of the situationists and the
collaborative openings of mail-art. The theoretical
influences/affiliations surrounding them (postmodernism, situationism,
critical feminism, etc) are also different and even sometimes competing.
And if we leave the area of "high art" and look at "pop" culture, we can
also hear dissonant voices: from the pragmatic criticism of Courtney
Love1, through the rebellion of "Prince/The Love symbol"2, to the numerous
lawsuits filed against fans who have made a range of less than indulgent
re-interpretations of TV series or commercial productions3. Finally, a
growing number of artists are showing themselves to be sensitive to the
problems raised by the evolution of author's rights in these international
problems: their role in supporting America's industrial and commercial
hegemony (transformation of European author's rights (royalties) into
copyright, pillaging of the intellectual resources of developing
countries4, etc)

It is easy to show up the bias in this analysis and bring out its true
purpose. In an attempt to protect artistic creation, strong pressure is
being brought to bear to achieve and ensure technical and legal measures
are taken that will greatly outweigh the financial problems of the
musicians and their representatives: confiscation of the dissemination
tool -- in this case the Internet -- the strengthening of the monopolies
of certain players (the ever greater power of management companies), the
consolidation of control policies (EUCD5), etc.

All of these features need to be examined in greater detail, but within
the framework of this presentation, we will centre on the Creative Commons
which have grown up in the fertile terrain of this criticism and this
dimension on author's rights. If the Creative Commons have drawn heavily
from the critique/controversy sparked by author's rights, they have also
been inspired by the alternatives that preceded them. In order to
understand the complexity of the Creative Commons proposal, we want to
place it in some perspective, by briefly looking at the nature of the
General Public Licence , one of the major alternatives to the use of
intellectual property, as used by big business and software
multinationals. We also want to compare the Creative Commons with another
proposal which has received less media coverage, the Free Art Licence. 

The General Public License (GPL), copyright reinterpreted.

The GPL was created by Richard Stallman in 1983 and adopted by free
software developers. This licence unambiguously guarantees the right to
use a computer program free from any restriction (the program may be used
for any purpose), the right to study (we can learn how the programme
works), the right to copy, modify and distribute copies free of charge or
commercially. Some have described the GPL as a "viral licence". To
understand the meaning of the word "viral" in this context, we need to
look at the mechanism governing copyleft within the framework of the GPL.
Copyleft is not a negation of the author's rights; rather it is a
reformulation of the way they are applied. It is a rerouting of the
author's rights. Because I am the author of a work, I can convey greater
liberties to my users under contract than the law awards them by default.
As Florian Cramer6 points out, the word "licence" comes from the verb
licere meaning to authorise. In order to authorise the additional uses of
a production, one needs to be its owner. And in the field of intellectual
property, this means being the author (or possessing rights equivalent to
those of the author). These additional rights are attributed with one sole
condition: that the same freedom is guaranteed with copyleft for any work
deriving from it. One cannot place a work under copyleft if one does not
own the rights (a work cannot be "laundered") and one cannot restrict the
usage authorisations which have been awarded to a free work, either for
that specific work or for the consequent works. 

In the context in which copyleft has emerged, the world of IT, re-using
the code is a fundamental challenge. Programmers write a generic code on
which others can build higher-level applications. Otherwise, it would be
necessary to reinvent the wheel for each new program. Offering an open
code thus represents a huge advantage, in that it enables hackers to spend
their time writing what still remains to be written, instead of on what
has already been written. Another element essential to any understanding
of the success of this model in this context, is that the emergence of
copyleft is a "conservative" movement which seeks to go back to the
practices of exchange that prevailed before copyright on computer programs
came on the scene. For many years, exchange of codes and free circulation
of sources was the norm. The GPL did not create practical solutions out of
nothing. It reinforced a tradition solidly anchored in the computer

An alternative can be a way of escaping from the world and digging oneself
into a trench; of living apart. In this scenario, the world is left behind
and a new world built outside the world. An alternative can also be a way
of transforming the world we live in so as to be better off. The viral
aspect of these licences, the fact that they are based on existing
practices and on grounded necessities represents a real challenge in this
distinction. The progressive adoption of free software, in fields as
varied as scientific applications, public administrations and the arts,
shows that a growing number of individuals are convinced that they offer
empowerment, that access to the code allows a plural definition of culture
and knowledge. Creations as refined as the Linux operating system and the
Apache server are inescapable proof of this. In the case of free software,
the fact that the GPL is more than an avoidance of the world, does not
mean that a certain tendency to isolation is not present in the free
software culture. If it is not disseminated, the use of this licence
essentially operates as a filter, rejecting all the impurity at the
frontier of its utopian world and the project becomes an avoidance of the
world. That which is free is condemned to live on the basis of this
paradox, because it is based on the author's right to transform the
practice. In effect, this danger/temptation is always present given that
the users of the GPL must recreate, from original materials, creations
that stand at the beginning of a chain. The GPL takes to heart the idea of
a new genealogy of works, encouraging the re-appropriation and
transformation of free materials. Copyleft obliges the user to maintain
the genealogy of these creations. Copyleft has not arisen out of the
paradigm of copyright, it reinterprets it. 

For many, the scope of the GPL is not limited to information technology.
It is a model of resistance which can be applied to various fields. We
find its influence behind projects for encyclopaedias, information,
scientific research. The GPL's potential consists of "releasing" the
knowledge, the resources and the conditions of access to those "universal
assets". It is a way of renegotiating the social contract, i.e., the
limits of property, the conditions of its application and, in short, the
relations between the individuals and the state. 

Copyleft, as defined by the GPL, encompasses a set of things: legal
practice (reappropriation of author's rights), methods of dissemination
(viral aspect) and political project. Let us now look where subsequent
licences such as the Licence Art Libre and the Creative Commons stand
vis-à-vis these different aspects -- how they incorporate them, qualify
them, disseminate them or reject them.

The Licence Art Libre (LAL) - the GPL in the context of Contemporary Art.

The Licence Art Libre was drawn up in 2000 by Copyleft Attitude, a French
group made of artists and legal experts. The goal was to transfer the
General Public License to the artistic field. The interest shown by the
group in the GPL was oriented towards a pragmatic and ideological use. In
the GPL, Copyleft Attitude was looking for a tool of cultural
transformation, rather than a convenient and effective means to help
disseminate a piece of work. The world of art (the dissemination of
culture) was perceived as being entirely dominated by a mercantile logic,
monopolies and the political impositions deriving from closed circles.
Copyleft Attitude tried to seek out a reconciliation with an artistic
practice which was not centred on the author, which encouraged
participation over consumption, and which broke the mechanism of
singularity that formed the basis of the processes of exclusion in the art
world, by providing ways of encouraging dissemination, multiplication,
etc. Copyleft Attitude prioritises a viral opposition/alternative rather
than a head-on one. From there on, the LAL faithfully transposes the GPL:
authors are invited to create free materials on which other authors are in
turn invited to work, to recreate an artistic origin from which a
genealogy can be opened up.

The process has not been free from problems. In the art world, for
example, the existing practices were mostly individualist. Despite the
fact that there was a tradition of artists working in an open way, even if
sampling and collage could not exist without using material made by
others, the value given to the name, to the author was, in short, a
synonym of uniqueness. Whereas Warhol drew unreservedly on the repertoire
of images provided by American popular culture, his estate has mercilessly
persecuted anyone trying to use his work without paying very high
royalties. The use of existing materials in art cannot so simply be
compared to the situation in the field of IT. Images or sounds are often
not used as building material, but instead they are torn out, transformed
against their will, attacked, ridiculed and criticised. Artists rightly
attack the emblems of the consumer society, commercial propaganda and the
tricks of the new powers that are colonising our minds. This place the
creators of the LAL in a paradoxical situation: they now have a licence
which is more elaborate than the practice it is supposed to defend -- a
positive collaboration instead of a reappropriation7. This licence is
therefore supposed to accompany the propagation of a model of positive
collaborative creation which is rarely found in this area (although the
Internet is increasingly changing this situation). And only if these
practices are adopted can the Licence Art Libre acquire an authentic
transforming status and emerge from a distant utopia into this world. The
members of the group, conscious of this problem, hold public events,
Copyleft parties, which are at the same time a chance for exhibition and a
chance for participative creation. 

The LAL shares with the GPL the project of re-examining the existing terms
of the relations between individuals and access to creation and artworks.
While LAL is not intended to renegotiate the social contract in general,
it does include elements of great interest from an egalitarian point of
view between the creators who use them. The position of the different
authors in the chain of works, does not consist of a hierarchy between the
first author and subsequent one. Rather, the licence defines the
subsequent works as original works "resulting from modification of a copy
of the original work or from modification of a copy of a consequent work",
and throughout the text of the licence they are mentioned regularly. This
concern has left its mark on various of the group's practices and, of
course, on the licence logo -- of which there are as many different
versions as there are interested users.

The Creative Commons (CCs), a Legal Toolbox8

Set up in 2001 by an essentially academic group (legal experts,
scientists, employers and a director of documentaries) and backed by one
foundation and several universities, the CCs acknowledged that their
inspiration came from the GPL. However, they are more influenced by the
pragmatic potential (how to resolve a problem) of the GPL than by its
potential to transform. In effect, the CCs are presented as the
"guarantors of balance, of the middle ground and of moderation". Unlike
the GPL, which is a specific mechanism for effecting a modification in the
system of creation/dissemination of software, the CCs have been set up to
smoothen it out, make it more flexible, more moderate, although not
entirely different. The main aim is to save the cost of a legal
transaction when drawing up a contract, and to restore the friendly image
of the Internet -- which has been turned into a battlefield with the
growing number of lawsuits against Internauts -- in order to restore
confidence among possible investors.

What the CCs propose is a palette of licences that offer the possibility
of granting users certain rights. These rights may be more limited than
those awarded by the GPL and the LAL. Users of the CCs can choose between
authorising or prohibiting modification of their work, commercial use of
their work and a possible obligation to re-distribute the subsequent work
under the same conditions. In the CCs, two distinctions are re-introduced
which were not contained in the GPL: the possibility of prohibiting
modification of a work and the difference between commercial and
non-commercial use. The CCs give the author a predominant position.
Whereas the LAL view the author as being like the others in a given
genealogy, the CCs see him/her as a person who stands at the beginning of
the chain. He or she can decide whether to authorise the subsequent use of
the work, and is defined as the original author. When this decision is
taken, the authors can request that their names not be associated with a
derived work whose contents they do not approve of. If the GPL excludes
the commercial/non-commercial distinction (the user is given the freedom
to sell the software), it is because the possibility of trading with the
resulting code will help accelerate its propagation. The greater the
propagation, the greater the dissemination achieved by the free software
and the greater the number of monopolies that will be abolished. The
business made from a piece of free software is simply considered as
another means of propagation. It accelerates the process that allows a
social contract to be renegotiated. The CCs do not place as much stress on
propagation -- the viral aspect. They were not conceived as the outriders
of a renegotiation of the social contract, but as tools for renegotiating
individual contracts, based on individual relations. Naturally, we can use
the CCs to create a licence close to the LAL/GPL; accepting the
transformations and commercial use, on condition that the author is
mentionned and that these conditions are applied to subsequent works. But
this is just one of the possibilities on offer. As Antoine Moreau said,
the CCs represent freedom of choice and the LAL represents a free choice.
Or as Femke Snelting suggested9 at the launch of the Guide to Open Content
Licenses, the CCs are licences which have gradually erased their narrative
potential (their way of narrating the world) to become tools. As tools,
these licences logically anticipate the varieties of conflicts which might
arise with the use of the work as a commercial reappropriation or the
deformation/de-naturalisation of a text or a film. 

Even at the risk of oversimplifying, we could start from the postulate
that the CCs and the LAL are legal tools which allow another application
of authors' rights.
- In the case of the LAL, a stress is placed on the transforming potential
for the field in which it is applied: art. This transforming potential can
only be produced if this licence reduces/supports a series of practices.
And these practices, in this particular field, are still not very
widespread, although this is changing. The LAL always faces the temptation
of defining itself as a project of society or, at the very least as a
project for art. And the identitary question hangs over it: do we really
form a group because we use the same licence or stop using it?
- In the case of the CCs, an entire discourse, the image, the choice of
representatives, etc., is there to erase/mask any attempt at
transformation. This is more of a desire for arbitration, for compromise,
to make do and to contribute the tools to do so without a prioris. Of
course, this supposed "neutrality" has been called into question by many
players. The artist/activist Sebastian Luetgert10 referred to the CCs as
the "social democracy of the Commons". This may be a valid criticism if we
take into account the general spirit of the licences and the promotional
discourse which follows. In some later article, we should examine how
users react: the true potential of these licences can only be measured by
looking at how those interested use them and if observing the dichotomy --
sometimes flagrant -- between all of the projects and the carefully
selected sample on the website creativecommons.org. But in terms of the
CCs' official discourse, the message is clear; they are defined as a
service, and not as a project.

The "alternative" licences give a vision of creative exchanges in society.
In doing so they have a twin aim: to announce to the participants in a
project, the rules of a game to which they are invited, but also to
highlight through contras -- and it is a worthy quality -- the narration
that underlies "traditional law". What was considered as something that
had been acquired, as a fact, suddenly is rediscovered as a project. We no
longer have the law and what is outside the law. We have the law as a
project and the world that the law creates by narrating it. 

Copyleft. This text has been published in accordance with the conditions
set out in the Licence Art Libre. 

http://www.gnu.org http://artlibre.org 

1.Courtney Love Does The Math. In this article, published in salon.org,
the singer shows with figures that the music production/distribution
system is designed to minimise the revenue of the performer. She does not
accept that Internauts should be treated as pirates while the large
corporation are behaving like unscrupulous predators.

2.The name "Prince" has been the legal property of Warner since 1993.
Prince decided to change his name to protect the independence of his work.
He was one of the pioneers in the struggle against the large companies. He
has been followed by stars such as George Michael and Courtney Love. 3 -
The Poachers and the Stormtroopers, Henry Jenkins,

3.Textual Poachers: Television Fans & Participatory Culture (Studies in
Culture and Communication), Henry Jenkins, Routledge (June 1, 1992)

4.Copyrights: A Choice of No Choice for Artists and Third World Countries;
The Public Domain is Losing Anyway, Joost Smiers

5.EUCD, "European Union Copyright Directive", and EU directive whose
purpose is to harmonise author's rights in the member states of the Union.
Adoption of this directive jeopardises the right to private copy and tends
to restrict the exercise of "exceptions" to authors' rights.

6.On the occasion of the launch of the book "Guide to Open Content
Licences" by Lawrence Liang, Florian Cramer gave an analysis of the notion
of "licence" in relation to artwork.

7."In spite of all its qualities, the LAL suffers a considerable handicap
insofar as it is targeted at artists, to whom precisely the idea of art is
something distant, given that the best of them prefer to practise art or
even, although this is more difficult, not to make art, and as a result
they avoid using the LAL. By dint of overly restricting its goal, the LAL
runs the risk of losing its practical value and being remarkable only for
its beauty". Comparatif de Licences Libres, Isabelle Vodjdani, 31 May

8.Term used by Séverine Dusollier, a researcher at the "Centre de
Recherche Informatique et Droit", of Facultés Notre Dame de la Paix
(Namur), in charge of coordinating adaptation of the Creative Commons to
Belgian law. 

9 On the occasion of the launch of the book "Guide to Open Content
Licences", Femke Snelting gave an analysis of the development of the logos
used by the different copyleft movements.

10.Debate on the mailing list nettime:


> - Use the GPL. In fact, the GPL can be used and has been used to license
>   all kinds of works, not only computer programs. In the free software
>   world, much documentation, visual artwork or audio is GPLed. The
>   huge benefit of using the GPL in this way is that it allows a free reuse
>   of works between different technical format and media. A GPLed piece
>   of audio, for example, can be integrated into a computer program, a
>   GPLed computer program can be reprinted as poetry in a GPLed book, a
>   GPLed piece of writing can be reused in the online help system of
>   a computer program etc.etc.. 
>   A major disadvantage of the CC licenses is their incompatibility
>   to the GPL. CC-licensed work cannot be reused in GPLed
>   work [unless the copyright owner agrees that the work or parts of it
>   are also distributed under the GPL]. A second disadvantage, which you
>   pointed out in your earlier posting, is the multitude of CC licenses.
>   It even impossible to share/copy'n'paste between projects released 
>   under different CC licenses.
> - Use the "Free Art License" <http://www.artlibre.org> which is older
>   than CC, artistic in spirit and reflects that it was not written
>   by lawyers with questionable or naive understandings of "creativity".
> Both the GPL and the Free Art License are, to use your wording, 
> "ethical frameworks". They don't naively conceive of culture
> as a resource, but manifest a cultural politics.
> Btw., all Creative Commons licenses were evaluated by the Debian project with 
> the
> conclucsion that they currently fail to fulfill the criteria of the Debian 
> Free
> Software Guidelines [widely recognized as the standard criteria for free 
> licenses].
> Since the Open Source Definition is based on the DFSG, the same should apply 
> to the
> CC licenses as "Open Source"; it might not be coincidental that no CC license 
> is
> listed on <http://www.opensource.org/licenses/>.
> -F
> -- 
> http://cramer.netzliteratur.net
> #  distributed via <nettime>: no commercial use without permission
> #  <nettime> is a moderated mailing list for net criticism,
> #  collaborative text filtering and cultural politics of the nets
> #  more info: [EMAIL PROTECTED] and "info nettime-l" in the msg body
> #  archive: http://www.nettime.org contact: nettime@bbs.thing.net

                  C O N S T A N T
                       V Z W

#  distributed via <nettime>: no commercial use without permission
#  <nettime> is a moderated mailing list for net criticism,
#  collaborative text filtering and cultural politics of the nets
#  more info: [EMAIL PROTECTED] and "info nettime-l" in the msg body
#  archive: http://www.nettime.org contact: nettime@bbs.thing.net

Reply via email to