Development of Creative Commons licenses

[Rob Myers <robmyers AT mac.com>]

On 4 Jan 2005, at 16:31, Johannes Ernst wrote:

> Here are some options:
> 1) explicitly state that CC licenses only deal with copyright, and no 
> other IP rights are affected (e.g. no license is granted to 
> trademarks, patents)
> 2) add another configuration category for other IP rights, with 
> choices such as 1) no rights are granted, 2) non-commercial use of 
> trademarks, patents 3) use of trademarks, patents but only if 
> ShareAlike, 4) commercial use, ...

1. To be honest, this kind of confusion of copyright with a patent 
"right" and a trademark "right" (and a database "right", etc.) is 
exactly why "Intellectual Property" is such a bad label. The CC 
licenses are copyright licenses. They do not need to exclude "other IP 
rights" because these are unrelated. WIPO needs reform here, not the CC 
licenses. :-)

2. I'm sure the Science Commons will handle patents and trade secrets, 
and GPL 3 is going to tackle patents much more robustly. Those licenses 
will be more appropriate for most work that can involve patents. So 
that leaves database right (which I'm not going to touch with a 
bargepole), trade secrets (which probably shouldn't be open :-) ), 
trade dress (which I don't know that much about) and trademarks/Service 
Marks.

IMHO it *would* be good to see a (separate) CC trademark license for a 
number of reasons. Characters in stories, novels, cartoons and media 
franchises are often both copyright and trademark (or still trademarked 
even after their original stories have entered the public domain!) . 
Being able to license those for well-defined non-infringing use would 
help the law around fan fiction, with great benefits to fans *and* the 
markets they grow for content creators.

There's an interesting bit of IP ju-jitsu using copyleft and trademark 
licensing known as the d20 license, which is used to license a 
particular brand for role-playing games. You essentially "pay" for use 
of the d20 brand in contributed Open Content. This kind of thing could 
be useful for building distributed communities or commercial projects, 
but it does demonstrate the main potential pitfall of mixing trademarks 
or patents with open licenses; the ability to exert downstream control.

A CC-TM license would mean that Adbusters could CC their "Black Spot" 
brand (rather than just emulating the centralised micromanaged global 
brands they are trying to critique). I'm sure real social projects 
could benefit as well.

So there's lots that could be done with creative Trademark licenses. 
But TMs and other "IP Rights" still shouldn't be factored into the main 
CC *copyright* licenses IMHO.

- Rob.

--
http://www.robmyers.org/ - A decade of art under a Creative Commons 
license.
http://www.robmyers.org/weblog/ - Art, aesthetics & free culture weblog.