Creative Commons - Governance

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Discussion

Creative Commons as a Political Franchising Model

Leonhard Dobusch and Sigrid Quack:

"Creative Commons was founded with financial support from Stanford University and the Center for Public Domain as an US charitable corporation in 2001 by a network of mostly academic lawyers12 of which Stanford law professor Lawrence Lessig was the central node. Elsewhere we have laid out in great detail, why and how this “epistemic community” (Haas 1992) of lawyers engaged in the development and provision of alternative copyright licenses as a politically motivated endeavor to correct for in their view overly restrictive copyright regulation (Dobusch and Quack 2009, 2010).

Only one and a half year after launching the first US license version, Creative Commons, started to legally translate (“port”) its license modules into local jurisdictions – an unprecedented move in the field of open content licensing.13 For porting the licenses into other jurisdictions and for promoting the licenses among creators, Creative Commons teamed up with local affiliate partners. In nearly half (23) of the 50 jurisdiction projects under study,14 there is even a formal division between people responsible for the legal translation of the license (“legal project lead”) and others, who predominantly deal with the community of license users (“public project lead”). In 11 of these 23 jurisdiction projects, this division of labor manifests in two or more different affiliate partners for each task. Among the other 27 jurisdiction projects, the majority (21 or 78%) is led by only one affiliate organization.

The relationship between the focal Creative Commons organization and its affiliates is probably best described as a form of “political franchising”: The affiliate organizations and Creative Commons sign a “Memorandum of Understanding” (MoU) that predominantly deals with Creative Commons as a brand. License porting procedures in turn are standardized but not formally regulated. All other aspects of the affiliates‟ work such as local events, funding or thematic priorities are up to them to decide (for details see Dobusch and Quack 2010).15 As a result, the activity level between different jurisdiction projects varies substantially. Only a minority of jurisdiction projects (fewer than 10) report that there was some group of volunteers regularly contributing to Creative Commons aside from the official legal or public project leads.

Parallel to the legal and organizational transnationalization of Creative Commons, adoption rates of its licenses experienced exponential growth in various fields of application (see Figure 3), pointing to the formation of a vibrant and transnational community of license users; cautious search engine estimates of the total number of Creative Commons licensed works add up to about 130 million by mid-2008.16 And while not all license users, of course, would consider themselves as being a member of the Creative Commons community, the local organizational outposts attracted groups of previously non-organized but latently existing actors (Dahrendorf 1959; Dolata 2003) from the diverse fields of license application. The German public project lead explains Creative Commons‟ appeal to such pre-existing but often dispersed copyright activists, with the “possibility to legally underpin your own views.”

So, after having been initiated by an epistemic community of lawyers, Creative Commons led to and built upon a second, non-legal and heterogeneous community of license users. At different points in time, the importance of these two communities for both organizational transnationalization and license adoption changed: In the beginning of its transnationalization process, finding local affiliate partners worked alongside professional networks: Many of the early project leads had previously participated in seminars or workshops held by the founding members of Creative Commons at Harvard or Stanford and subsequently developed personal contacts with them. The legal project leads of the first two porting countries, Japan and Finland, for example, both attended the same seminar of Lawrence Lessig at Stanford. Ronaldo Lemos, the Brazilian legal project lead, first came into contact with Creative Commons at Harvard‟s Berkman Center. Back in their home countries, they then convinced their hosting institutions – mostly law schools – to act as affiliate organizations.

Over time, more and more non-legal affiliate organizations and activists joined the Creative Commons network: While in the first half (25) of jurisdiction projects 17 (68%) consisted of at least one affiliate organization with a legal background, this number dropped to 8 (32%) in the second half (for details see Dobusch and Quack 2010). On the Creative Commons board of directors, however, still five out 11 members had a legal background by the end of 2008.

The composition of the Creative Commons board follows a self-selection logic, which remained relatively uncontested over the years – publicly, at least. In interviews and off the record, several jurisdiction project leads bemoaned the lack of insight and participation within Creative Commons‟ organizational structuring. Leading figures such as Lawrence Lessig justified both the dominance of legal professionals as well as the lack of at least some form of community participation with the need for professional “expertise” and tried to source demands for participation out to a newly founded organizational entity called “iCommons”, hived-off in 2005: “I think in the long run, iCommons should have that democratic relationship to its online communities but Creative Commons has a real brand and product that it needs to guarantee and that requires a component of expertise more than democratic motivation.”18 (Interview in 2007) ICommons, however, did never live up to these expectations and silently suspended its activities after four years of existence in 2008.

The rationale for founding iCommons was a change in tasks for local Creative Commons outposts once the license porting process was over. Aside minor legal tasks around versioning of the licenses, the major activity after the launch is promoting the licenses among diverse communities of (potential) licenses users. Consequently, in several interviews project leads with legal background explicitly mentioned their plans to hand over the responsibility to other, non-legal entities due to changing task structures. The Belgian project lead, for example, explicitly mentioned being uncomfortable with the task of promoting the licenses, stating that “I am an academic – I want to be able to critique and I don‟t want to be restrained.” As a result, in some jurisdictions such as Japan, South Korea or recently Mexico, local project leads departed from the franchise approach and newly set up local Creative Commons organizations. And many later jurisdiction projects without a strong legal background such as most of the projects in the Balkan region, did not embrace the task of license porting in the first place. The Serbian project lead even claims that “localized licenses are of symbolic, not of practical value” and bemoans “it was hard to explain the need to port the license to local institutions”. For him, criticism of Creative Commons licenses can be embedded in promoting the license – a tactic he calls an “avant-garde approach”.

So, about seven years after its foundation as a project of legal professionals, during which both transnational outreach and license usage grew enormously, Creative Commons faces a “double movement”: More and more activist license users without any legal background are gravitating towards the organization whereas legal professionals are drifting away from it. While this corresponds with changing task structures after the completion of license porting, attempts to mirror these changes in the realm of related communities by altering the formal organizational structures have not been successful, yet.

...

While after 2003 its increase in geographical scope lead to some organizational decentralization, it did not change the non-participatory relationship between Creative Commons as an organization and neither the epistemic community of lawyers nor the community of license users. The strategy to meet demands for more participation of the latter in form of a separate but still connected legal entity called “iCommons” was never really implemented and, eventually, given up in 2008." (http://wikis.fu-berlin.de/download/attachments/59080767/Dobusch-Quack-Paper.pdf)

Source: Managing Boundaries between Organizations and Communities: Comparing Creative Commons and Wikimedia. Paper prepared for the 3rd Free Culture Research Conference, October 8-9, 2010, Berlin. By Leonhard Dobusch and Sigrid Quack."