Twenty years ago, Congress passed a statute that triggered a turning point in a cultural war. The Sonny Bono Copyright Term Extension Act extended the term of existing copyrights by 20 years. It was the 11th extension that Congress had granted in the prior 40 years. By its enactment, it announced a kind of cultural policy: that the United States government would do as much as it possibly could to favor commercial culture, regardless of its effects on a public domain.
At the time Congress passed the Sonny Bono Act, the nation was just coming to recognize the extraordinary significance of the Internet to the future and possibilities for creativity. The music industry launched litigation against Napster. “The copyright wars” had begun. And to most it seemed as if the battle was a simple one — between those who believed in copyright and those who opposed it. Given that choice, most chose copyright.
To many, however, that binary was just too simple. Certainly, there were many who believed in the culture of “All Rights Reserved.” And certainly, the Internet was inspiring a whole generation who seemed to believe in “No Rights Respected.” But many at the time knew that there were artists, creators, and educators who stood between these two extremes. They believed in copyright, certainly, but they also believed that many creators would want their work to be shared. Those sorts had no clear language to express their moderation in the middle of the copyright wars. Nor did they have any way to even understand whether they were just a few, or part of the many.
Eric Eldred, a non-commercial Internet publisher of public domain works, helped give these sorts a language with which to speak. Eldred challenged the Sonny Bono Act in federal court. His case was taken by the United States Supreme Court. I was his lawyer, and I (naively) believed Eldred would win. But before the case was argued, Eric told me he was grateful for our work, but convinced we would not win. It was therefore important, he insisted, that we be certain that the fight that his case had come to represent not end with a decision by the Justices. Instead, he insisted that regardless of the outcome, we build a foundation to support the legal sharing of copyrighted creativity.
When the Supreme Court upheld the Sonny Bono Act, Eric’s foundation was born. Creative Commons from its birth aimed to give creators and the public a way to say — in a legally meaningful and consistent way — that they wanted their work to be shared. The Creative Commons licenses were a “Some Rights Reserved” alternative to “All Rights Reserved.” They gave creators a simple way to mark their creativity with the freedoms the author intended it to carry.
To do this effectively on the Internet, however, required a strange sort of hybrid. We needed a way to mark creative work that judges would respect, that the public could understand, and that technology would sort. The Creative Commons licenses thus married three forms of expression into a single bundle — a lawyer readable license, a machine-readable expression of the license, and a human readable “Commons Deed” that would be easily understood by anyone. Very quickly, the project was adopted globally, and soon scores of jurisdictions from across the world had ported the licenses to local law. Soon after that, millions of objects of creative work had been tagged to be shared according to one of the six core licenses CC offered.
And with that, the language of free culture could be spoken. Foundations started encouraging their grantees to use this language of freedom to enable others to share and build upon their funded work. Scientific journals started embracing the licenses as a standard way to express ideals of open access to science. And innovators in many fields copied the ideas that Creative Commons had copied from the Free Software Foundation to build ecologies of freedom in every context of creativity.
These ecologies don’t criticize commercial creators. They don’t deny the need of artists and authors to earn from their creativity so that they have the freedom to create. Instead, the innovators who use the Creative Commons licenses create for different reasons, within different economies. Some may still sell their creativity; others are happy simply to share.
And thus has the space between the extremes been occupied, by a language that expresses a creativity that celebrates others as powerfully as itself. This is the creativity that lives with the Commons.
Between 2002 and 2015, MacArthur invested more than $3 million to help establish and grow Creative Commons, providing free, easy-to-use copyright licenses that offer a simple and standardized way to give the public permission to share and use creative work.
