If the culture industries wonder why people have so little respect for copyright law these days, they need look no further than the Warner Music Group’s claimed copyright of the song “Happy Birthday.”  It’s a grotesque mockery of the avowed principles of copyright law and a scam on the public that has persisted for decades.  But with a revenue stream of $5,000 a day, or $2 million a year, Warner Music is not about to stop charging people for the right to perform “its” song.

Thanks to a courageous filmmaker, however, this travesty may soon come to an end.  Jennifer Nelson had been making a documentary about the “Happy Birthday” song when Warner said it would cost her $1,500 to use it in her film.  Nelson filed a lawsuit two years ago, a remarkable challenge in itself to the usual legal bullying by copyright owners. After all, who has the money or stomach to battle large corporations with well-paid lawyers or to lobby Members of Congress whose minds have already been made up by campaign contributions from music, film and publishing companies? Most TV shows simply forbid their hosts and performers from singing “Happy Birthday,” and various restaurants have come up with their own alternative songs, lest they incur licensing fees.

It now appears that Nelson’s legal team has uncovered hard evidence that the copyright to “Happy Birthday” has been invalid for years.  In a storage facility used by the University of Pittsburgh, lawyers found a 1922 songbook that contained the lyrics of “Happy Birthday” in a song entitled “Good Morning and Birthday Song.” This is significant because there was no copyright notice on the song in the book – a requirement for copyright protection under the law at the time – and anything published before 1923 has entered the public domain and is free for anyone to use.

Of course, Warner attorneys have their own highly technical legal responses. That’s what usually happens in such cases – the historical record and legal rules resemble a murky cave from which no one but expensive lawyers emerge. In this case, a judge will have to adjudicate whether there is enough evidence to decide the case now, or whether a trial will be needed. Still the discovery of the 1922 songbook is considered a “smoking gun” by many.

However the arcane legal arguments play out, it’s patently absurd that a song that derived from Negro folk culture and “written” by two sisters, Patty and Mildred Hill, in 1858, is still copyrighted in 2015 and won’t enter the public domain until 2030 — 172 years after its “original” creation. This lengthy copyright monopoly was the supposed “incentive” that the Hill sisters needed to “create” the song.

Thanks to Nelson and other artists who have joined her lawsuit, the expensive copyright joke known as “Happy Birthday” may soon be coming to an end.  But when will copyright law begin to take account of the actual generative power and “authorship” of social commons?  That, I fear, will require a much larger revolution in law.

Robert Brauneis’ 2010 law review article on the copyright of “Happy Birthday” is the most rigorous, full-scale treatment of this subject, available here.  A shorter but still extensive account by Flenn Fleishman appeared recently on Boing Boing.

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Creative Commons has just issued a report documenting usage patterns of its licenses.  It’s great to learn that the number of works using CC licenses has soared since this vital (and voluntary) workaround to copyright law was introduced twelve years ago, in 2003.

According to a new report, the State of the Commons, recently released by Creative Commons, the licenses were used on an estimated 50 million works in 2006 and on 400 million works in 2010.  By 2014, that number had climbed to 882 million CC-licensed works.  Nine million websites now use CC licenses, including major sites like YouTube, Wikipedia, Flickr, Public Library of Science, Scribd and Jamendo.  The report includes a great series of infographics  that illustrate key findings.

For any latecomers, CC licenses are a free set of public licenses that let copyright holders of books, films, websites, music, photography and other creative works choose to make their works legally shareable.  The licenses are necessary because copyright law makes no provisions for sharing beyond a vaguely defined set of “fair use” principles.  Copyright law is mostly about automatically locking up all works in a strict envelope of private property rights.  This makes it complicated and costly to let others legally share and re-use works.

The CC licenses were invented as a solution, just as Web 2.0 was getting going.  It has functioned as a vital element of infrastructure for building commons of knowledge and creativity.  It did this by providing a sound legal basis for sharing digital content, helping to leverage the power of network-driven sharing.

The licenses have also helped commoners develop their own alternatives to conventional, proprietary forms of corporate culture – Hollywood, commercial television, the major record labels, the big book publishers. Instead of a system that separates producers from consumers, and privileges the power of (corporate) intermediaries in market-based culture, CC licenses have enabled commoners to collaborate among themselves, generating a bottom-up flow of mostly noncommercial creative content.

A big issue in many free culture circles is how “free” are the licenses.  Some CC licenses prohibit commercial and derivative uses of a work, which makes them “less free,” while other licenses that allow both adaptations of a work and commercial use are “free.”  (“Free as in freedom, not as in free beer,” as Richard Stallman famously put it.)  According to the new CC report, roughly 56% of the 882 million CC-licensed works out there allow for both adaptations and commercial uses of a work (“free culture licenses”).  This percentage is up from 40% in 2010.  A full 76% of works counted allow adaptations, and 58% allow commercial use.

A breakdown of license usage showed these interesting numbers:

CC0:4%

CC BY:19%

CC BY-SA:33%

CC BY-ND:2%

CC BY-NC:4%

CC BY-NC-SA:16%

CC BY-NC-ND:22%

Usage of CC licenses around the world fall into these inter-continental percentages, as this infographic shows:

The international proliferation of the licenses has spurred an interest in all sorts of initiatives to make government information, scholarly journals, culture and educational curricula more accessible to people.  Fourteen countries have made formal national commitments to open education through legislation or projects that “lead to the creation, increased use, or improvement of open educational resources by requiring an open license like CC BY.  Open textbooks – i.e., CC licensed and therefore more easily shareable and inexpensively produced – have saved students over $100 million.

For years, there were CC licenses for more than 170 legal jurisdictions around the world.  This was the only way to make the licenses legally enforceable.  But as the legal terms of the licenses were gradually adapted to the laws of more than 35 countries, there has been a greater convergence of licensing terms transnationally.  To reflect this, Creative Commons in December 2014 released Version 4.0 licenses that are designed to be more useable by the global user community.

The new licenses include new provisions related to database rights, personality rights, and data mining – provisions that have already been endorsed by the European Commission for use by public sector institutions, and by the White House for federal government datasets.

The CC report concludes with a few warnings about the threats to the sharing of information and culture. These include things like the Trans-Pacific Partnership, a treaty that, if passed, will extend copyright terms by another 20 years beyond its current, mandatory term.  In other words, a giveaway worth billions of dollars to existing copyright holders (primarily large corporations) that will do little to serve the public.  Creative Commons also hopes to improve the technologies that will enable wider usage of its licenses.

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