“When the culture of openness is part of society it helps knowledge to grow” is what Nkem says to introduce her perspective on Open Culture. In this episode we learn about how the walls around culture discourage growth and discovery and how opening up knowledge and culture encourages inclusivity and fosters growth.
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. Nkem has been working with open access and open culture at Libraries and institutions across Africa for more than 20 years. She works to increase engagement with public knowledge and promote open access across the continent through her work at the African Library and Information Association.
Nkem 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.
The Creative Commons Open Education Team is pleased to provide a snapshot of progress made toward opening access and equity in education, through a look at our collective efforts in 2022.1 We laud the CC open education community for its important work throughout 2022. CC and community members’ open education efforts in 2022 included, but were not limited to:
We ran a successful French translation, as well as the first ever Spanish language sprint for the CC Certificate course reading content. Thanks to the efforts of CC Certificate graduates and additional translators,2569 million more people will have access to CC Certificate open educational resources (OER) in their native languages. These published works enable 493 million native Spanish speakers and 76 million native French speakers to access translations in their languages — not to mention others who have Spanish or French as a second language.
CC continued its partnership with InclusiveAccess.org, a community-driven initiative that launched in 2021, to raise awareness of the facts about textbook sales models that add the cost of digital course materials into students’ tuition and fees. Learn more about it in our Open Minds Podcast interview with Trudi Radke.
We interviewed Jennifer Miller about her Open Syllabus for Open Scienceproject (see lightning talk below), which provides a complete but flexible way for early career researchers to learn about open science.
We ran CC Open Education Lightning Talks in March and August. Lightning talks are concise presentations that provide a specific update or story. During the talks, open education practitioners highlighted OER into capstone courses, discussed funding opportunities within open education, and explored how the CC Network can provide support for the United Nations Sustainable Development Goals. Practitioners also discussed leveraging tax legislation for open education funding, theories and practices around OER, fireside stories of open sharing, and even led a Texas Sing-a-long!
CC continued to engage global partners and stakeholders in our work on Open Education.
CC staff and network colleagues presented at six regional UNESCO hosted meetings to support national governments and NGOs in understanding and implementing the UNESCO Recommendation on Open Education Resources. We highlighted the importance of using standard international CC open copyright licenses in open education policies and open educational resources (slides).
CC is working with UNICEF and others to find OER curriculum and openly licensed psycho-social support materials to help Syrian and Turkish children and their teachers who have been displaced by the devastating earthquakes.
The CC team expanded our Certificate program. We ran 16 online courses in 2022, raising the total number of graduates to over 1255 from 65 countries by the end of 2022. We piloted two open pedagogy CC Certificate courses in September, which encouraged participants’ greater agency in the course and also as contributions to their larger communities.
We also launched the CC Certificate for GLAM with three courses and 93 participants. With Evelin Heidel (nickname: Scann), we were able to also offer a facilitator training for this program, thereby certifying additional instructors to teach the course. We also offered 38 scholarships to Certificate participants, expanding the program’s global reach. The CC Certificate program also continued facilitation and evaluation measures, ensuring the CC Certificate program is on a trajectory of continuous improvement. Thanks to Jonathan Poritz’s analysis, we learned four key takeaways from evaluating the CC Certificate.
Aside from the CC Certificate courses, CC continued its training, including a workshop for the U.S. Department of State’s TechCamp Morocco, thanks to facilitation from Shanna Hollich; a workshop for the UK National Lottery Heritage Fund, and training for Open Education Fellows at Lafayette College, among others.
In addition to these efforts, many more community members noted their work advancing open education in CC Open Education Platform meetings, ongoing conversations and collaborations. While we cannot cite everyone’s efforts here, we are honored to work with and learn from this community. Interested in joining us? If you are not yet a member, learn more about the CC Open Education Platform – we hope to hear from you!
This work is essential. While Open Education Week has ended, our efforts in support of open education march on as strong as ever. We believe access to knowledge is a human right, and CC is working hard to ensure that open educational opportunities are available to all.
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[1] While CC celebrates the wonderful contributions our open education community members have made, we recognize even more advancements were made than we can highlight, from collective open education work, spanning multiple communities, networks and continents.
[2] Translators included Nicolas Simon, Carlos E. Ferrero, Emma Miliani, Hector Teran Torres, Talia Méndez Mahecha, and Jackeline Bucio.
“Creativity does not happen in a vacuum” is how Eric Luth introduces his take on Open Culture in the GLAM sector. Our creativity is inspired by others which is why being able to enjoy our shared cultural heritage is so important. Platforms like Wiki-commons and others work to support these efforts and encourage sharing.
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. Eric Luth is a Project Manager at Wikimedia Sweden where he organizes collaborations, events, and exchanges of practices in the cultural sector. Wikimedia Sweden also organizes edit-a-thons for Wikipedia articles.
Eric 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.
From 13 to 17 March 2023, Creative Commons (CC) participated in the 43rd session of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) in Geneva, Switzerland. In this blog post, we look back on the highlights of the SCCR/43 week.
We once again support the Wikimedia Foundation, who have yet again been denied accreditation as an observer to WIPO’s standing committee on copyright and related rights (SCCR).
CC’s policy agenda at WIPO
We generally drive copyright reform towards better sharing of copyright content in the public interest and in tune with the sharing possibilities of the digital environment. We promote better sharing and open culture, and recently published a Call to Action to policymakers that offers a basis for a shared vision on better sharing in the cultural context. We also share many of the views co-developed by our partners in the A2K coalition, including Communia, Centrum Cyfrowe and Intellectual Property Institution.
Our views on the draft broadcasting treaty
Regarding the discussions on a draft broadcasting treaty, we voiced our opposition to the Second Revised Draft Text of the Broadcasting Treaty. While we agree that broadcast content plays a key role in today’s society, the Draft would deal a severe blow to the public domain, threaten to unduly curtail the possibilities offered by open licensing, and is antithetical to people’s freedom to share and right to equitable access to knowledge.
Our two main concerns were that the Draft (1) lacks robust, mandatory exceptions and limitations to guarantee access to broadcast content for purposes of research, education, journalism, cultural preservation and creativity; (2) threatens to unduly curtail the possibilities offered by open licensing and restrict access to or distribution of works already licensed under a Creative Commons license, as noted in the past.
Preservation, access, sharing, use, and reuse of cultural heritage are essential ingredients of thriving and resilient societies and are demonstrated contributors to sustainable development. Alas, overly restrictive or outdated copyright laws continue to raise unnecessary barriers around cultural heritage. CC stewards legal tools to enhance the sharing of a wide variety of creative content, including cultural heritage. But while they advance global sharing, they are not designed to establish a general, permissive framework for everyone — that is the role of clear, effective, and consistent limitations and exceptions.
We welcomed the Toolkit on Preservation (SCCR/43/4); it is a valuable resource that provides important guidance. However, this document fails to consider the crucial aspect of access in preservation efforts. Preservation is not just about storage, it is about how our heritage lives on in the interpretations of researchers, in the recreations of creators, and in the minds and hearts of every member of the public enjoying their fundamental right to access cultural heritage. Access is a precondition for preservation that is meaningful, inclusive and sustainable. Moreover, this document is not a substitute for an international normative instrument that would guarantee clear and certain exceptions for preservation at the international level.
Conclusions and next steps
Overall, we are pleased with the many steps forward taken by the Committee at this session. First, on exceptions and limitations, we welcome the SCCR’s adoption of a work program based on the Proposal by the African Group for a Draft Work Program on Exceptions and Limitations (SCCR/43/8), which we supported. The program calls on the Committee to discuss “priority issues” including:
to promote the adaptation of exceptions to ensure that laws at the national level enable the preservation activities of libraries, archives, and museums, including the use of preserved materials;
to promote the adaptation of exceptions to the online environment, such as by permitting teaching, learning and research through digital and online tools; and
to review implementation of the Marrakesh Treaty and how to ensure that people with other disabilities (also covered by the Convention on the Rights of Persons with Disabilities) can benefit from similar protections, in particular in order to benefit from new technologies.
The program also proposes that discussions be facilitated by the Committee on the UNESCO Recommendation on Open Science (2021) and its implications for international copyright laws and policies, an initiative that we support, given CC’s involvement in the development of this important UNESCO instrument.
We are also pleased with its decision to start negotiations with a view to “preparing objectives and principles and options for implementation” on exceptions and limitations.
Second, regarding the draft broadcasting treaty (SCCR/43/3), we commend the Committee for its decision to revise the document, including its limitations and exceptions provisions, and look forward to the Chair’s Third Revised Draft Text, which will be used as a basis for discussion at the next SCCR session.
Third, the Committee agreed that there should be a three-day session of the SCCR (SCCR/44) during the week of November 6, 2023. We welcome this opportunity to intensify substantive discussions and look forward to actively participating in shaping a fairer and more balanced copyright system that supports better sharing in the public interest.
In my last blog post, I looked at whether copyright protects artistic style, particularly in the context of generative AI (GAI) art tools like Stable Diffusion and Midjourney. However, in the class action litigation against Stable Diffusion and Midjourney, the plaintiffs are not only concerned that people can use the GAI tools to produce works that mimic the works and/or styles of other artists, but they also argue that the tools should be liable for infringement conducted by their users. In this blog post, I look at this second issue — should GAI tools be held responsible for potential copyright infringement conducted by users of these tools?
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.
What is vicarious liability?
One of the claims raised in the suit against Stable Diffusion and Midjourney is that AI tools should be held vicariously liable for copyright infringement because their users can use the systems to create infringing works. Typically, legal liability arises where someone directly commits an act that harms another person in such a way that the law can hold that person responsible for their actions. This is “direct liability.” If a distracted driver hits a cyclist, the cyclist might ask the court to make the driver pay any damages, because the driver is directly liable for the accident. Normally, third parties are not considered responsible for the acts of other people. So, the law would probably not hold anyone but the driver liable for the accident — not a passenger, and not even one who was helping to navigate or who had asked the driver to make the trip. And unless the car was faulty, the manufacturer of the car would not be liable either, even though if no one had made the car the accident would not have happened: the car could have been used without harming anyone, but in this case it was the driver who made it cause harm.
“Art Meets Technology” by Stephen Wolfson for Creative Commons was generated by the Midjourney AI platform with the text prompt “an artist using a mechanical art tool to create a painting realistic 4k.” CC dedicates any rights it holds to the image to the public domain via CC0.
Under some circumstances, however, U.S. law may hold third parties liable for the harmful acts committed by other people. One such legal doctrine is “vicarious liability” — when a third party has essentially used another party to commit the harmful act. Courts in the United States have found vicarious liability in copyright law when two conditions are met: (1) the third party has the ability to supervise and control the acts of the person who committed the direct infringement, and (2) the third party has an “obvious and direct” financial benefit from the infringing activity. Notably, vicarious liability for infringement only occurs where another party has become directly liable for copyright infringement. If there was no direct liability for infringement at all, a third party cannot be held responsible.
Vicarious liability requires a relationship between the third party and the person committing the direct infringement, where the third party retains some control over the other person’s actions and where the third party economically benefits from those actions — for example, an employer/employee relationship.
In the US, the 9th Circuit examined the issue of control and technology-enabled vicarious copyright infringement in the specific context of search engines and credit card payment processors in Perfect 10 v. Amazon.comand Perfect 10 v. Visa. Perfect 10 v. Amazon.com involved Google image search linking to images owned by Perfect 10 on third-party websites. The court held that Google did not have the ability to control what those third-party websites were doing, even though it had control over its website index and its search results. Similarly, in Perfect 10 v. Visa, the 9th Circuit held that Visa was not liable for infringement committed by websites that hosted content belonging to Perfect 10, even though Visa processed credit card payment for those websites. The court wrote that “just like Google [in Perfect 10 v. Amazon.com], Defendants could likely take certain steps that may have the indirect effect of reducing infringing activity on the Internet at large. However, neither Google nor Defendants has any ability to directly control that activity.” In both cases, the relationship between the third party and the potential infringement was not close enough to sustain a vicarious infringement claim because of a lack of control.
Turning to the second element, obvious and direct financial benefit, the 9th Circuit has written that this is satisfied where infringement acts as a draw for users to the service, and that there is a direct causal link between the infringing activities at issue and the financial benefit to the third party. In another case involving Perfect 10, Perfect 10 v. Giganews, the 9th Circuit held that Usenet provider, Giganews, did not derive a direct financial benefit from users who distributed Perfect 10’s content on their servers, even though Giganews charged a subscription fee to those users. Because it wasn’t clear that users were drawn to Giganews for its ability to distribute Perfect 10’s content, the court was unwilling to hold Giganews vicariously liable for the actions of its users.
Should generative AI tools be liable for the actions of their users?
How do these elements of control and financial benefit apply in the context of generative AI? Normally, no one would argue that the creators of art tools like paintbrushes or digital editing tools like Photoshop or Final Cut Pro should be responsible when their users use their tools for copyright infringement. Their creators cannot directly control how people use them and they do not clearly benefit from copyright infringement conducted with them. That seems uncontroversial. The question, however, is more complex with GAI because these platforms have the ability to deny service to users who misuse their services and may derive their profits/funding based on how many people use them. That said, tools like Stable Diffusion or Midjourney do not have the practical ability to prevent infringing uses of their tools. Like in Perfect 10 v. Amazon.com and Perfect 10 v. Visa, they do not directly control the ways people use their tools. While they could deny access to users who misuse the tools, it seems impossible to stop users from entering generic terms as text prompts to ultimately recreate copyrighted works. Furthermore, as I discussed in my previous post on style and copyright, there are legitimate reasons for people to use other artists’ copyrighted works, such as fair use. So, banning users from prompting tools with “in the style of” or “like another copyrighted work” would be overbroad, harming legitimate uses while trying to stop illegitimate ones, because we can only tell what is legitimate or not based on the facts of individual situations.
As with any other general purpose art tool, there simply doesn’t seem to be a way to prevent all users from using GAI in ways that raise concerns under copyright, without shutting down the tools themselves, and stopping all uses, legitimate or not. Compare with something like automatic content filtering tools. These tools may be good at finding and automatically removing access to copyrighted material that is posted online, but even the best systems identify many false positives, removing access to permissible or authorized uses along with the infringing ones. In doing so, they can harm legitimate and beneficial uses that copyright law’s purpose is designed to support.
Moreover, GAI tools like Stable Diffusion and Midjourney do not necessarily have an “obvious and direct financial benefit” from copyright infringement conducted by users of their platforms. In the case of Stable Diffusion and Midjourney specifically, that link doesn’t appear to exist. They make the same amount of money from users, regardless of how they put the tools to use. Since neither platform advertises itself as a tool for infringement, both discourage copyright-infringing uses as parts of the terms of service, and neither profits directly from copyright infringement, there does not seem to be a direct causal link between these hypothetical infringing users and Stable Diffusion or Midjourney’s funding.
Furthermore, it is not clear that copyright infringement is a draw for users to these services. As mentioned above, simply creating works in the style of another artist does not necessarily mean those works are infringing. Moreover, there may be legitimate reasons to use artists’ names as text prompts. For example, a parody artist may need to use the name of their subject to create their parodies, and these works would have a strong argument that they are permissible under fair use in the United States.
For other GAI tools, the question of whether there is obvious and direct financial benefit from copyright infringement will be case-dependent. Nevertheless, the link between the ability to use the tools for copyright infringement and whether this is a draw for users to the GAI tools will likely be, at best, unclear in most circumstances. And without a causal link between the financial benefit to the GAI creator and infringement conducted by users, this element will not be met.
Ultimately, while it’s easy to understand why artists would feel threatened by generative AI tools being able to mimic their artistic styles, copyright law should not be a barrier to the legitimate use and development of these tools. While it may make sense for the law to step in and prevent specific instances of infringement, copyright should not prevent the legitimate use and development of generative AI technologies, especially when they can help to expand and enhance human creativity. And while there may not be any perfect solutions to these issues, we need to figure out norms and best practices that can allow these promising new technologies to develop and thrive, while also respecting the rights and concerns of artists and the public interest in access to knowledge and culture. For now, we will watch and see what happens in the courts, and continue to encourage dialog and discussion in this area.
