“Opening up cultural artifacts from African organizations might change how we’re represented in online spaces” says Kirsty von Gogh from Johannesburg. She also shares how increasing production of culturally, linguistically, and contextually aware and relevant content can ensure a more representative digital space for Africans, and how open licensing increases accessibility to this content.
Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Kirsty is a project manager for Neil Buchanan & Associates where she works to promote open licensing of educational and cultural material across Africa, for example of story books in underrepresented languages, and the implementation of the UNESCO recommendation on Open Education Resources.
Kirsty responds to the following questions:
What are the main benefits of open GLAM?
What are the barriers?
Could you share something someone else told you that opened up your eyes and mind about open GLAM?
Do you have a personal message to those hesitating to open up collections?
Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.
Join us on 14 June at ‘Disruption: Creator Edition’ as we explore the profound influence of generative AI on creativity across multiple industries. Register now >>
“Humans walking together” by Anna Tumadóttir for Creative Commons was generated by Dall-E with the text prompt “a group of individual faceless humans in all different colors walking on the lunar surface in three dimensions.” CC dedicates any rights it holds to the image to the public domain via CC0.
CC has long focused on the ways that artificial intelligence (AI) can build on, contribute to, and exploit the commons and impact sharing of knowledge and creativity. The rapid rise of generative AI late last year presented a unique challenge and opportunity for CC. From the community and beyond, we saw an urgent demand for support in navigating AI’s implications for the commons.
This year, we kicked off a public consultation with CC community members and a wide range of stakeholders. We believe AI can work in the public interest, and want to be part of the solution in navigating to that reality.
As one component of that consultation, we joined forces with the team at EQTY Lab, and with Nonny de la Peña of the Arizona State University California Center, to host an event called Disruption. This brought together a diverse set of speakers, from the fields of law, entertainment, and beyond, and showcased a series of curated conversations about copyright and generative AI in arts & entertainment. We gratefully received fiscal support from Morrison Foerster, whose lawyers are on the front lines of what may well turn out to be landmark cases in the field of generative AI.
We’ve always been an organization that, at our core, is about empowering creators to share knowledge and creativity in ways that work for them. We are delighted to announce that the next iteration of Disruption will happen 14 June in Los Angeles, bringing together experts across AI and creators across film & TV, music, and the arts to discuss how creators in all arts & entertainment industries are being affected with the rise of generative AI. This conversation goes beyond copyright, into issues of labor, value, ethics, and more.
Date: 14 June Time: 9:30am to 5pm (optional happy hour afterwards) Location: ASU California Center (1111 South Broadway, Los Angeles, CA 90015)
Creative Commons has a strategic emphasis on “better sharing”, sharing that is just, equitable, and pro-social. Copyright, and the open licenses that CC stewards, are one way to share knowledge and creativity, but many more abound. How can we balance technological innovation and development of disruptive tools with the rights of creators to be fairly remunerated for their human creative efforts? And how do we ensure individual freedoms whilst protecting broader social norms?
In particular, we want to interrogate these key themes during the course of the proceedings as they relate to creators:
Representation
How can we address the problems of representation in generative AI while we’re still early in its rise? How can creators be a part of that?
How does AI affect inclusion and representation in the entertainment industries?
Lessons Learned
What can we learn from the past? The ways previous technologies have been incorporated into art, and in particular the relationships between creators and publishers, distributors, and other intermediaries?
Generative AI carries both opportunities and challenges for creators, but which if any are innate in the technology and which stem from other factors, like the current business and institutional structures?
The political environment
How might labor policy and organizing from the creator perspective factor into the future of generative AI, and how do they compare to other levers for policy and business change?
Register here to join us on June 14th in downtown LA.
The proceedings will be recorded and released at a future date. Full speaker line-up is forthcoming.
Like the rest of the world, CC has been watching generative AI and trying to understand the many complex issues raised by these amazing new tools. We are especially focused on the intersection of copyright law and generative AI. How can CC’s strategy for better sharing support the development of this technology while also respecting the work of human creators? How can we ensure AI operates in a better internet for everyone? We are exploring these issues in a series of blog posts by the CC team and invited guests that look at concerns related to AI inputs (training data), AI outputs (works created by AI tools), and the ways that people use AI. Read our overview on generative AI or see all our posts on AI.
“Open Access… is an amplification of the work that these institutions do” Ivan says in this episode. He also shares what unique challenges are faced by cultural heritage institutions in Mexico which has one of the longest copyright terms in the world: 100 years plus the lifetime of the creator or author
Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Ivan is a Coordinator for Creative Commons Mexico, an activist for knowledge and human rights, and is part of the organizing team of the 2023 CC Summit in Mexico City.
Ivan responds to the following questions:
What are the main benefits of open GLAM?
What are the barriers?
Could you share something someone else told you that opened up your eyes and mind about open GLAM?
Do you have a personal message to those hesitating to open up collections?
Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.
“Group photo at CC’s Open Culture Roundtable in Lisbon” licensed CC BY 4.0
As part of our Open Culture Program, we at Creative Commons (CC) are exploring avenues to build momentum towards a UNESCO Recommendation on Open Culture. On 11 May, 2023, we hosted our first in-person Open Culture event, in Lisbon, Portugal. In this blog post, we look back at the day’s highlights and map out next steps.
Background
Over the past decade, the open movement has made incredible strides in the cultural sector — take a look at some of the pioneers — yet it is still facing major barriers and challenges. But challenges are opportunities in disguise. In September last year, UNESCO declared culture a global public good at Mondiacult 2022. With the successes of the 2019 UNESCO Recommendation on Open Educational Resources and 2021 Recommendation on Open Science, the world looks to UNESCO’s leadership to create the necessary international framework that would unlock the possibilities of equitable, ethical, and respectful sharing of cultural heritage in the digital age: a UNESCO Recommendation on Open Culture. For an explanation of useful terms related to open culture, take a look at the glossary developed by the CC open culture platform.
Meeting highlights
Recognizing that such an international instrument requires deliberative, inclusive community consultations, the in-person event focused on the foundational work of gathering community input. Structured around a co-created agenda and under the able guidance of Abdul Dube and Mona Ebdrup, facilitators at Visual Confidence, just under 40 experts gathered to exchange views and open initial discussions on the need to realize open culture as a global public good.
Participants came from far and wide across the open movement and beyond, spanning the fields of law, library science, policy, design, anthropology, history, museum curation, international organizations, and many others. Attending from CC’s team were Brigitte Vézina, Director of Policy and Open Culture; Connor Benedict, Open Culture Coordinator; Jennryn Wetzler, Director of Learning and Training; and Jocelyn Miyara, Open Culture Manager.
During convivial, engaged, polyphonous and cross-pollinating conversations, we exchanged our diverse perspectives; explored potential common grounds on backgrounds and contexts, core issues, and key principles; built a common understanding of what we collectively want to achieve; and elaborated a skeleton of a shared vision for “open culture.” Issues discussed included the role of copyright over access to cultural heritage, the impact of artificial intelligence, the “platformization” of culture, a sense of a generational shift in the open movement, the need to account for ethical sharing, the economics of open culture, open beyond “GLAMs” (galleries, libraries, archives and museums), the need for diversity and inclusivity in global and local contexts (including traditional knowledge and Indigenous rights), a vision for open culture in 100 years, and a lot more!
Take a look at the meeting’s graphic record, offering a visual summary of the diverse perspectives that felt most resonant within our breakout groups and that surfaced in plenary debriefs.
Participants appreciated the opportunity to meet peers and build new relationships, and got a sense of the possibilities of going down a common path together. While in-person meetings such as this cannot include all of the perspectives needed, participants noted the value of in-person discussions to probe various approaches to open culture deeply. We aim to offer additional avenues to include more perspectives in follow-up activities.
Here’s what some of the participants shared about their experience:
“The CC Open Culture Roundtable was an opportunity to meet and engage with open culture experts and advocates around the world and see how, despite the many contextual differences, there are meaningful ways for us to collaborate and shape nuanced, context-mindful perspectives for projects and policies aiming at a shared and open culture.”
— Mariana Valente, Assistant Professor in law, University of St. Gallen, Switzerland and Associate Director, InternetLab (Brazil).
“It was a great opportunity to hold first discussions about the initiative, and it allowed me to reflect on possible options further.”
— Gašper Hrastelj, Secretary General, Slovenian National Commission for UNESCO
“The CC Open Culture Roundtable was a perfect opportunity to meet in person to discuss Open Culture, and it allowed me to enlarge my view and learn other perspectives.”
— Deborah de Angelis, Chapter Lead, Creative Commons Italy
“The CC Open Culture Roundtable was a great opportunity to meet people from diverse organizations and parts of the world, and it allowed me to see different perspectives on IP and ‘openness’ as a concept and movement.”
— Matt Voigts, Copyright and Open Access Policy Officer, IFLA
“It was an excellent opportunity to bring different open culture stakeholders together and reignite and expand important discussions among them. And it allowed me to reflect on the possibilities in my reach to contribute more effectively to the progress of open culture, both locally and globally.”
— Fátima São Simão, Chapter Lead, Creative Commons Portugal
“It was an inspiring opportunity to share ideas of the open culture and notice that there are a lot of people trying to solve similar questions from different angles, and it allowed me to meet many new and interesting people and to enjoy working together.”
— Johanna Lilja, Director of Services, National Library of Finland, and IFLA Cultural Heritage Advisory Board
“For me, it was an opportunity to do a historical reflection exercise where we were able to look at how we have grown as a movement. And it allowed me to collaborate in the construction of a more or less common concept or idea of what is understood in different corners of the world as “open culture”. It also allowed me to connect with people who are doing amazing projects.”
— Ivan Martinez, Coordinator, Creative Commons Mexico
“The CC Open Culture Roundtable was a first step on a exploratory journey on how GLAMs could be better supported through open approaches to public domain material. It allowed me to understand the diversity of stakeholders’ perspectives on the issue.”
— Lutz Möller, Deputy Secretary-General, German National Commission for UNESCO
“The CC Open Culture Roundtable was a pitstop for ongoing discussions around the importance of open culture, and it allowed me to reconnect to the wider international community.”
— Maarten Zeinstra, Owner, IP Squared and Member, Creative Commons Netherlands
“It was firstly a chance to meet people who are actively involved in the movement, particularly from different contexts, it allowed me to better see somewhat paradoxically the boundaries of open culture, and have the space to start to think about what openness means for knowledges outside of the legal frameworks of IP.”
“The CC Open Culture Roundtable was a warm gathering of fellow travelers and it allowed us to imagine new ways to act together.”
— Fiona Romeo, Senior Manager, Culture and Heritage, Wikimedia Foundation
Next steps
We are excited to take the outcomes of our Lisbon event forward. We are already planning to continue the conversation at the CC Summit in Mexico in October, and hopefully at GLAM Wiki 2023 in Montevideo, Uruguay in November this year. We will also organize multiple virtual opportunities to contribute as we engage more community members in our work on open culture.
The United States Supreme Court released its opinion today in Andy Warhol Foundation v. Goldsmith. While it’s hard to predict the full ramifications of this decision at this point, our initial opinion is that this decision is not ideal, but also not the death knell for transformative fair use that many feared it could have been. We address three points below.
What use is fair?
First, the Court’s focus on Warhol’s specific “use” of Lynn Goldsmith’s photograph of Prince provides clarification on what the word “use” means as part of the fair use analysis, and narrows the scope of the opinion in ways that will allow for many future fair uses.
Fair use analysis in the United States depends on a four-factor test, where courts must consider all four factors and decide how to balance each one. The Goldsmith case focuses entirely on factor 1: the “purpose and character of the use.” (In particular, it was argued that Warhol’s Orange Prince was a “transformative” use: where the original work served one function, but has a different purpose and character because it has been “transformed” by changing the context of the use.) The copyright statute does not specify what “use” means in this context, and indeed there are many different ways to interpret it. For example, in this case, “use” could mean:
Andy Warhol’s use of Lynn Goldsmith’s photograph of Prince Rogers Nelson to create a series of silk screen prints called The Prince Series;
Warhol’s use of the photograph to create Orange Prince without it ever appearing on a magazine cover;
The use of Orange Prince as a portrait of Prince for a magazine cover/profile piece.
Here, the Court narrowly focuses on this third meaning: The commercial “use” of Orange Prince as a published magazine portrait of Prince. The Court found the “purpose” of these two images of Prince to be identical: Both featured in magazines as portraits of the same musician. This narrow similarity will enable later would-be transformative users to distinguish their use from the original in a way that makes it different from the fact pattern in this case, suggesting that the fair use analysis of this factor would be different. That is, if a use does not serve the exact same function as the original, then this decision leaves the door open to argue that it has a different “purpose” from the original. The decision’s distinctions between these different kinds of uses suggest that a case over this very same work used for another purpose might have had a different outcome.
Additionally, the Court’s particular focus on the commerciality of this use is not ideal. While commercial purpose is part of the analysis of this factor, it is common for commercial uses to still be fair uses. As the Court itself notes, Campbell v. Acuff-Rose (perhaps the most famous fair use case) found an explicitly commercial use to be fair, and was clear about commercial use not barring a finding of fair use. We hope that this case is not read to walk back those statements, harming users who want to make transformative commercial uses of a work.
Derivative v. transformative
Second, the Court’s attempt to draw a line between a derivative work and a fair use does not provide much clarity to guide future uses.
Much of the confusion over distinguishing a derivative work and a fair use involves what it means to “transform” a work, and the degree of that transformation. Under U.S. law, one of the rights that authors have over their works is the right to create or authorize the creation of “derivative works.” As defined by statute, a derivative work is “a work based upon one or more preexisting works” that is “recast, transformed or adapted.” (emphasis added). At the same time, however, since Campbell, one of the most important parts of the fair use analysis has been whether a secondary work is “transformative.” Because of this, there is a tension between what is a transformation in the context of a derivative work and what is a transformative fair use. (This is often one of the most difficult points for users of CC-licensed works to navigate, as well, especially where the license is one that places conditions upon derivative works.)
Unfortunately, the Court does not successfully relieve this tension. While we agree with the Court that “overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works” and that “the degree of transformation required to make ‘transformative’ use of an original must go beyond that required to qualify as a derivative,” the decision does not provide clear guidance on what this actually means.
Fair use: An engine of creativity
Third, as Justice Kagan writes in a dissent joined by Chief Justice Roberts, the majority seems to undervalue the importance of transformation in the fair use inquiry, and indeed, may undervalue fair use more broadly. Justice Kagan writes: “Why do we have ‘fair use’ anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their ‘public availability.’ … But that description sells fair use far short. Beyond promoting ‘availability,’ fair use itself advances creativity and artistic progress.” Moreover, “when a transformation of the original work has occurred, the user of the work has made the kind of creative contribution that copyright law has as its object.” By failing to focus on how Warhol’s piece transformed the original photograph and added a new meaning and message to the original, the Court’s opinion may influence future decisions to also undervalue this point and undermine the purpose of fair use itself.
Ultimately, this decision is disappointing to champions of fair use, but does not appear to change much about judgments on fair use from what we’ve seen before. Transformative fair use has always been difficult to rely on, with the possibility of a court’s judgment differing from the artist’s as to when a fair use was made. It is promising to note how much of what we believe to be fair use the Court also holds up as examples to distinguish — Warhol’s own soup cans, for example, which don’t occupy the same place in the market as the product on supermarket shelves. Moreover, the Court’s narrow focus on a single, very specific, use — the commercial use of one portrait to serve as another portrait — continues to leave a lot of room for more easily distinguished transformative uses like remixes and other forms of appropriation art.
CC continues to believe that fair use is essential to creativity and culture. Justice Kagan’s dissent aligns well with CC’s views on transformation and creativity; in particular, that “artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others.” All art incorporates and transforms what came before it, and depends on the ability to reuse and reinterpret previous works, and the exclusivity of copyright should block that only as far as necessary to support an environment where artists can continue to create. This was a case with a particularly challenging set of facts, where there was a great deal of similarity to consider in the fair use analysis, and we believe that even after this decision, fair use continues to be alive and well in the United States, and that the Court’s narrow decision changes little about that.
