A critique of Wikipedia's use of the Creative Commons BY-SA license

1. The Globalisation of “Open”
Heather Ford, DRAFT for WikiWars reader
December, 2009
The world has become a colouring book again. Nowhere more apparently in the
open source and free content community, where we like to colour in world maps with
places we’ve conquered. Whether it’s Lawrence Lessig talking about areas of the
world that have been ‘liberated’ by Creative Commons1, or Wikipedia ‘buil(ding) an
international network of associated chapters’2, ‘free culture’ is definitely going global.
Country chapters and projects from Creative Commons and Wikipedia grew
organically from the original American nodes, relying on volunteers in a country
taking the initiative to build a local community of people to fly the free culture flag.
This has worked well for the past few years. But the rapid growth of these projects
seems to hit a wall when it comes to the continent of Africa. People don’t seem to
want to be involved – and when they do, it’s in such small numbers that they don’t
get the kind of traction necessary to create an organic community.
South Africa is the only country in Africa to have ‘ported’ the Creative Commons
license to the national jurisdiction3. This was in 2005. That’s one country in seven
years – with only Jordon and Nigeria on the horizon for future launches. Wikipedia
isn’t in much better shape when it comes to Africa. There isn’t a single Wikimedia
chapter on the continent and the work of Mark Graham has shown that, although the
numbers of Wikipedia volunteers are dwindling, there are still ‘whole continents that
4
remain a virtual “terra incognita” ’.
Says Graham: ‘Almost all of Africa is poorly represented in Wikipedia. Remarkably
there are more Wikipedia articles written about Antarctica than all but one of the fifty-
three countries in Africa (or perhaps even more amazingly, there are more Wikipedia
articles written about the fictional places of Middle Earth and Discworld than about
1
Here http://lessig.org/blog/2005/06/the_spreadofcc.html and
2
Here http://wikimediafoundation.org/wiki/Local_chapters
3
I was involved in this effort with my colleague, Andrew Rens
4
Mark Graham ‘Wikipedia’s known unknowns’ on the Guardian, 2 December, 2009
http://www.guardian.co.uk/technology/2009/dec/02/wikipedia-known-unknowns-geotagging-
knowledge. Graham writes here http://zerogeography.blogspot.com/

2. many countries in Africa, the Americas and Asia).’
Graham believes that ‘the next explosive growth in the online encyclopedia will come
from places that have not previously been represented’. He points to the arrival of
more broadband to many parts of Africa as a way that ‘people there will start
discovering Wikipedia, and that the site will see a second explosion of new editors
and articles about places that have so far been ignored’.
He adds that ‘it is equally conceivable that as peer-produced projects such as
Wikipedia become our primary sources of knowledge, we could begin to see
permanent information inequalities between different parts of the world.’
There are obviously many reasons for Africans not joining the global free culture
movement. My goal with this paper is to try to explain one of those reasons. It is to
attempt to make transparent the particular politics at play in the design of Creative
Commons licenses, to show how CC is a political artefact and how, as a political
artefact representative of the values and principles of its architects, it continues to
mirror global inequalities that exist in the real world. It is my belief that, if
organisations like Creative Commons and Wikipedia do not design for global
solidarity, they will never achieve it.
As someone who has passionately argued and fought for the principles of free
culture, this paper is a labour of love. It is an attempt to understand where we went
wrong, where we continue to go wrong, in the hope that perhaps we might break out
of the patterns that the world has dictated and go back to those days when we
imagined that the Internet held new possibilities.
Wikipedia and Creative Commons
st
On the 21 of May this year, the Wikimedia Foundation Board passed a resolution to
move from the GNU Free Documentation License (GFDL) to the Creative Commons
Attribution/Share-Alike License (CC-BY-SA) as their primary content license.
‘The Wikimedia Foundation Board of Trustees passed a resolution that will
bring about significant changes to the way the content of the Wikimedia
Foundation projects, including Wikipedia, will be licensed. This resolution

3. follows a vote among the international Wikimedia community. More than
17,000 votes were cast, with strongest participation in English, German,
French, Russian, Spanish, Polish, Italian, and Chinese. 88% of all voters who
5
expressed an opinion supported the change. ’
For many, the change had been a long time coming. I was at a party in San
Francisco a year and a half before this when Creative Commons Founder, Lawrence
Lessig and Wikipedia Founder, Jimmy Wales announced the beginning of discussion
with the Free Software Foundation to enable interoperability with Creative Commons.
At the party, Wales announced6 that the Wikimedia Foundation board voted to
approve a deal between the FSF and CC and Wikimedia. Said Wales, ‘We’re going
to change the GFDL in such a way that Wikipedia will be able to become licensed
under the Creative Commons Attribution-ShareAlike license.’
This was a major victory for Creative Commons. The organisation knew that, as the
most legitimate global open content resource available today, Wikipedia was a
critical piece in its strategy to become the default license for open content projects.
Wikipedia is important in the free culture universe not only because it is so widely
used (the sixth biggest website in the world according to Alexa7 means that its not
just geeks and free culture fans who use it). It is important because it is the best (and
possibly the only) example of peer production on a scale similar to what has been
achieved by the free and open source software movement. No other single open
content project has been able to achieve the level of volunteer support, quality and
distribution that Wikipedia has.
Licensing is really important for projects like Wikipedia. The ownership and
distribution of Wikipedia is governed by its copyright license. The license determines
who gets to participate in Wikipedia, how it is shared and who, ultimately, is able to
5
‘Wikimedia Foundation announces important licensing change for Wikipedia and its sister
projects’ Press release from the Wikimedia Foundation, 21 May 2009
http://wikimediafoundation.org/wiki/Press_releases/Dual_license_vote_May_2009
6
Video and transcript at http://blog.jamendo.com/2007/12/01/breaking-news-wikipedia-
switches-to-creative-commons/
7
http://www.alexa.com/topsites

4. access it.
An illustration of the importance of licensing can be seen in the origin of photographs
that exist on Wikipedia. Wikipedia requires that photographs be licensed under the
same terms as its own license – the Creative Commons license that enables free
copying and sharing around the world as long as the same terms are used for
8
derivative works. On Nelson Mandela’s Wikipedia page , for example, the only
(relatively) current photograph is one taken in 1993 by the White House Photograph
Office. This is the same photograph being used in both the Xhosa and Afrikaans
9
Wikipedia pages .
th
Wikipedia is the 6 most visited site in South Africa, but awareness and acceptance
of Creative Commons in the country is limited. More work needs to be done to
assess the relevance of local participation figures, but it is safe to say that if there is
no widespread understanding about Creative Commons in a particular community,
then it is more difficult for Wikipedians in that community to participate. Every
photograph needs the consent of the photographer to release it freely under the
terms of the license, and without a freely-licensed pool of local photographs (such as
those available on Flickr), the inclusion of every photograph requires negotiation with
individual rights-holders.
Code is law
‘Code… will present the greatest threat to both liberal and libertarian ideals,
as well as their greatest promise. We can build, or architect, or code
cyberspace to protect values that we believe are fundamental. Or we can
build, or architect, or code cyberspace to allow those values to disappear… A
code of cyberspace, defining the freedoms and controls of cyberspace, will be
built. About that there can be no debate. But by whom, and with what values?
10
That is the only choice we have left to make .’
Lawrence Lessig published these words in 1999 in his first book about the changing
8
http://en.wikipedia.org/wiki/Nelson_mandela
9
This is both on the English, Afrikaans (http://af.wikipedia.org/wiki/Nelson_Mandela) and
Xhosa (http://xh.wikipedia.org/wiki/Iphepha_Elingundoqo) Wikipedia page for Nelson Mandela
10
‘Code and Other Laws of Cyberspace’ Lawrence Lessig 1999

5. nature of regulation in the digital age.
The book, called ‘Code and Other Laws of Cyberspace’ describes a world in which
‘the instructions embedded in the software or hardware that makes cyberspace what
it is’ is the ‘latest, and most dire, threat to liberty that we have ever seen’.
The idea that ‘code’ should have politics isn’t a new idea. It extends the writings of
others throughout history who have analysed the particular politics embedded or
architected into man-made structures. In 1986, Langdon Winner wrote about the
need to investigate, not just the effects of technology, but the ways in which they can
11
‘embody specific forms of power and authority ’. Winner believed that the choices
that we make about how to design technology reflects important social and political
consequences.
‘The things we call “technologies” are ways of building order in our world.
Many technical devices and systems important in everyday life contain
possibilities for many different ways of ordering human activity. Consciously
or not, deliberately or inadvertently, societies choose structures for
technologies that influence how people are going to work, communicate,
travel, consume, and so forth over a very long time.’
Winner said that it is important to look at the initial design of a particular technology –
since it is at this point that the most important decisions are made – decisions that
will have the greatest impact on the technology in years to come.
According to Winner, ‘In the processes by which structuring decisions are made,
different people are differently situated and possess unequal degrees of power as
well as unequal levels of awareness. By far the greatest latitude of choice exists the
very first time a particular instrument, system, or technique is introduced. Because
choices tend to become strongly fixed in material equipment, economic investment,
and social habit, the original flexibility vanishes for all practical purposes once the
initial commitments are made.’
Let’s look, then at the initial founding of Creative Commons to see how the initial
design reflects a particular political structure.
11
Do Artifacts Have Politics? Langdon Winner 1980

6. The politics of CC code
12
Launched a month before the result of the Eldred vs. Ashcroft case, CC was
designed as a solution to the problem that there was no simple way for people to
give up some of the rights that they received automatically under copyright law. The
case challenged the constitutionality of the 1998 Sonny Bono Copyright Term
Extension Act that extended the duration of copyright in the United States from fifty to
seventy years. Lawrence Lessig was lead counsel for the plaintiff, Eric Eldred, an
Internet publisher who at the time was republishing works that were in the public
domain. The law affected both new and existing works (making it both a prospective
extension as well as a retroactive one) forcing Eldred’s publishing of some works to be
illegal.
The initial idea for Creative Commons came from Eldred and MIT professor, Hal
Abelson. It was an idea formed mostly by lawyers and technologists. As Lessig wrote
in his first blog post about CC, ‘After many hours with lawyers, and many productive
hours with tech-types, and lots of imagination by many, an idea first suggested by
Hal Abelson and Eric Eldred will come to life on Monday, December 16: Creative
Commons’13.
The original board was almost exclusive male and almost exclusively lawyers. It is
thus natural that Creative Commons was designed as a legal (rather than, for
example, political) solution – working within the current legal structures rather than
outside of them.
14
David Berry and Giles Moss write that this is Creative Commons’ biggest failing.
‘Like others before him, Lawrence Lessig bemoans the loss of a realm of
freely shared culture. He writes about the colonisation of the public domain
brought about by extensions in intellectual property law and the closing down
12
http://www.law.cornell.edu/supct/html/01-618.ZS.html
13
http://lessig.org/blog/creative_commons/
14
‘On the “Creative Commons”: a critique of the commons without commonality’ David Berry
and Giles Moss, 2005
http://www.freesoftwaremagazine.com/articles/commons_without_commonality/

7. of the technical architecture of the internet. He rightly identifies the way in
which global media corporations have lobbied to extend the terms of
copyright law so that they can continue to profit from their ownership of
creative works. He also identifies the way in which private interests are
simultaneously encoding and enrolling digital technologies in order to support
their control of artistic and intellectual creativity. Whereas others who
problematise these trends turn to the political, the legal professor’s penchant
is to turn to the field of law and lawyers. What follows is a technical attempt to
(re-)introduce a commons by instituting a farrago of new legal licences in the
existing system of exploitative copyright restrictions. This is the constructive
moment of the so-called “Creative” Commons.’
Giles and Moss declare that Creative Commons was designed as a ‘technical’
solution – one that relies on law and lawyers to regulate – and does not cut to the
heart of the political problem that is inherent in current copyright structures. By
developing a solution that is in keeping with copyright law, they argue, Creative
Commons is not solving the most important problem inherent in the way that global
media corporations have commoditised culture.
As I’m writing this, Creative Commons is celebrating its seventh birthday. The
organisation’s licenses have been ‘ported’ to over 50 jurisdictions around the world.
Its use has been extended to offline works, it has been applied to software projects in
addition to creative works and works of scholarship and science. As Creative
Commons works to port the core Creative Commons licenses to different copyright
legislations around the world, and as volunteers from countries around the world
contribute to discussions on new license versions, it has come under increasing
pressure to diversify its leadership. And yet, seven years on, the organisation is still
led predominantly led by a homogenous group of American technologists.
As Winner says, this is not to suggest that there is any conspiracy, but only that
those making design decisions reflect a particular power hierarchy. If the solution
was being designed by and for the current audience (consisting of different levels of
internet adoption, legal literacy etc) it is certain that the solution’s design would be
very different. Because the major decisions about the design are now fixed and the
latitude of choice has decreased, it becomes more difficult to introduce changes to
reflect the needs of new stakeholders.

8. Design for choice… but whose choice?
In developing the license suite, Creative Commons picked up from the Free Software
Foundation’s original idea to use copyright to carve out certain uses that would be
automatically allowed. CC differed from the FSF with one important feature that
would drive a rift between the two organisations. Unlike the FSF, Creative Commons
enabled users to choose the conditions under which their works could be re-
published. Instead of defining freedom upfront, CC employed a licensing engine that
would enable user to choose the conditions under which they would make their
works available.
15
David Clark et al in ‘Tussle in cyberspace: defining tomorrow's internet ’ might
suggest that the modularity of CC licenses, their open architecture and their
allowance for choice reflects a favourable design in keeping with the ‘end to end’
nature of the Internet. ‘Tussle in cyberspace’ presents the idea that the architecture
of the Internet is based on a number of principles, and that the best way to design for
a favourable outcome in the evolving design of the Internet is to accommodate the
tussle between different stakeholders.
But there is still a set of important questions that remain unanswered by Clark et al,
and it is at a more granular level that the cracks begin to appear. Just because there
are choices, for example, doesn’t mean that those choices don’t reflect a particular
bias in deciding which choices to offer. What level of modularity works best? And
what kinds of outcomes are being designed to ensure here?
Some of the critiques of the Creative Commons that focus on user choice and
modularity emphasise these questions. Richard Stallman, founder of the Free
Software Foundation, for example, suggested that providing users with choices as to
which license they wanted to use was wrong because some of these licenses could
not be called ‘free’. For the free software movement, there is only one (at least in
terms of the Creative Commons license choices) version of a “free” license, and
offering users a choice only allowed more powerful forces easy membership to a
political movement that the FSF didn’t believe should be diluted by those who weren’t
15
‘Proceedings of the 2002 conference on Applications, technologies, architectures, and
protocols for computer communications’ http://portal.acm.org/citation.cfm?id=633059

9. prepared to give up very much.
In response to such debates, Lawrence Lessig and other Creative Commons
supporters suggested that CC was merely enabling each sector to decide for
themselves what the best license was for their purposes. In the words of the ‘Tussle’
paper, CC was designing the perfect ‘playing field’ rather than the perfect outcome.
The particular design of the playing field, however, cannot be said to be objective,
and certainly reflects to a large extent who is invited to play the game and on the
basis of which rules. If future users (for example, those from Africa, and other
developing countries) are left out of the ‘tussle’, then the resultant design will never
reflect their needs. The fact that CC was designed by a particular community to solve
a particular problem indicates how far its influence will reach in the current
incarnation. Unless it involves others in designing future solutions then it will remain
a distinctly American solution that is being translated (or to use the CC term ‘ported’)
to solve problems that may be different but that are similar enough in many countries
to have some effect.
Designing a solution?
Flanagan, Howe and Nissenbaum in ‘Embodying Values in Technology: Theory and
Practice’ have a possible solution to the problem of a technology that is increasingly
unrepresentative of its growing user base. Conducting empirical investigations of
values in relation to individuals and their societies who are both using and not using
the licenses may be just what is needed to ensure that CC’s design evolves as it
grows to be seen (and to see itself) as a truly global solution. Developing
technologies for such global use, as Flanagan et al suggest, requires ‘reasonable
tradeoffs’ in order to discover ‘a middle ground’. This isn’t easy, but finding out what
is important to the global creative class is essential in ascertaining ‘whether a
particular design embodies intended values’. CC would do well to conduct such
studies and transparently deliver results of both intended and unintended
consequences in order to refine the solution as it progresses.
In conclusion, as Winner suggests, it is not enough to declare a technological
solution to be either inherently good or bad. What matters, and what influences the
effects of a technology is in ‘the specific configurations of both hardware and the

10. social institutions created to bring that (solution) to us’. In the case of Creative
Commons, it is essential that as its user base grows, that the design of Creative
Commons solutions develop in a way that aligns to its new global role. Closely
analysing individuals using and not using the technology in a variety of contexts,
taking note of intended and unintended consequences, and critically assessing the
power relations in the current leadership are all essential to establishing CC as a
global player that reflects the diversity of its users.
In doing so, CC will have to accomplish the difficult task of recognising the important
role of diverse contexts in the design of future solutions. This is important because,
to quote Winner: ‘(Saying that) we ought to attend more closely to technical objects
themselves is not to say that we can ignore the contexts in which those objects are
situated.’