Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright

Abstract

The underlying purpose of the Copyright Act, as stated in the Constitution, is to promote the progress of knowledge and learning. Today, the complexities surrounding copyright law confront millions of users of creative works who find it difficult to determine whether a work is subject to copyright protection, difficult to understand what they can and cannot do with these works, and difficult to locate the copyright owner. These high transaction costs facing users create an impediment to the achievement of copyright's constitutional goal. The Creative Commons offers tools embraced by millions of copyright owners to provide clear public use rights broader than those provided by the Copyright Act. This article posits that by selecting to employ the Creative Commons tools, copyright owners are placing their works into a semicommons status. Property that has a semicommons status embodies both important private rights and important public rights that dynamically interact. Creative works with a semicommons status can facilitate the very progress that copyright law is designed to serve. Thus, this article argues that courts should facilitate the growth of this semicommons of creative works by enhancing the reliability of both the private rights that the copyright owners have retained in these works, as well as the reliability of the public rights that the copyright owners have signaled exist through the use of the Creative Commons tools.

Enforcing the private use rights requires appropriately recognizing both copyright infringement claims and breach of contract claims. Enhancing the reliability of the public use rights requires prohibiting a retraction of those rights by the copyright owner, including any attempt at terminating the grant pursuant to provisions contained in the Copyright Act. This article proposes that courts embrace a doctrine of limited abandonment of copyright to clarify the nature of the public rights in works released under Creative Commons licenses and to enhance the overall reliability, and hence value, of the semicommons of creative works.

Keywords: Copyright, Creative Commons, License, Abandonment

JEL Classification: K11, O34