[cc-sampling] on default rules and "timidity"

Glenn Otis Brown glenn at creativecommons.org
Fri May 30 13:17:54 EDT 2003

Cathy Kirkman said:

"Since we are not varying the default situation under the law, it is not
necessary to have a statement about ownership rights."  

DJ of Negativland said in response:

"Ok, See Cathy, I completely disagree with this advice on the grounds of
undoubtedly harried legalistic timidity. . . . I'm thinking of this
license as a kind of voluntary, fair use-bestowing license, directed at
those who want to protect art's free access to art, not as a protection
for any artist involved 
whenever the two interests conflict."

Now I respond: DJ, I have to disagree with your disagreement. Cathy's
explanation has nothing to do with "legalistic timidity"; it is
explaining how we express these ideas in a lawyer-readable way.  Her
point is simply that where there  default rules cover an issue (here, the
copyrightability of a work derived from samples), there's no need spell
the issue out in the license. Yes, we might want to do so in the Commons
Deed, FAQ, or other human-readable parts of the license; but to do so in
the license itself is to render our lawyer-readable nonsensical, says the
expert. Cathy's simply acting as legal translator here. 

Legalistic, yes -- we need to be legalistic for this license to actually
work.  Timid, no -- avoiding redundancy has nothing to do with timidity.  


And still wondering about "Fair Use For Collage" - whether we might, 
in some way, declare our own self-defined "fair use" for any partial 
reuse of this CC licensed work, partial fair use of BOTH this entire 
new work and whatever it happens to be made out of, which may still 
be copyrighted outside this new work, but no longer is a copyright 
controlled appearance here in the new collage that is, guess what, 
reusing previously copyrighted work to exist. And I wouldn't care if 
this new collaged reuse is a dance record that hits the top of the 
pops or not, there would be no strings attached back to the 
fragmented content's copyrights. Would such a reworking of the 
"derivative" definition for our purposes of artistic reuse have any 
more authority in a voluntary license if we connected it to something 
well established that already does exactly this, like fair use?

  If we don't incorporate this inherently backfiring  ("But what about 
the copyrights?") problem into the free reuse license's awareness, it 
will be the license that furthers the mess... 
Glenn Otis Brown
Executive Director
Creative Commons
glenn at creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)

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