In its recent „Special Report“ on copyright protection and enforcement (498 pages, PDF) to the US Trade Representative, the International Intellectual Property Alliance (IIPA) recommeded keeping Indonesia on the „watch list“. One of the major reasons given for this recommendation (PDF) was the following:

„Worse yet, instead of focusing attention on piracy and solutions to the problem, the government retained onerous market access barriers […] and added new restrictions. For example, in March 2009, the Ministry of Administrative Reform (MenPAN) issued Circular Letter No. 1 of 2009 to all central and provincial government offices including State-owned enterprises, endorsing the use and adoption of open source software within government organizations. While the government issued this circular in part with the stated goal to “reduc[e] software copyright violation[s],” in fact, by denying technology choice, the measure will create additional trade barriers and deny fair and equitable market access to software companies.“

In what follows, the paper argues that endorsing the adoption of open source software „fails to build respect for intellectual property rights“. While this opposition towards open source software can be explained by the fact that the Business Software Alliance, which is dominated by proprietary software vendors such as Microsoft, is among the most influential IIPA member organizations, others share the basic concern. The Austrian researcher Stefan Weber, for example, similarly decries a declining respect for intellectual property and a rise of plagiarism – something he refers to as the „Google-Copy-Paste-Syndrome“; he also links alternative licensing such as Creative Commons with an allegedly dropping respect for authors’ copyrights (see pp. 34-35 in Maurer et al. 2007, PDF).

Ironically, some critics of the prevalent copyright regime such as Niva Elkin-Koren (see „Private Ordering of User-generated Content: Uppsala Follow-up“) fear exactly the opposite. They worry that free/open licensing, which is based upon existing copyright law, might even strengthen an outdated and overly restrictive copyright regime.  For example, in her piece „Exploring Creative Commons: A Skeptical View of a Worthy Pursuit“ (2006, PDF) Elkin-Koren argues that

„Creative Commons’s strategy is left with the single unifying principle which empowers authors to govern their own work. This paper argues that such a strategy could spread and strengthen the proprietary regime in information.“

My personal perception lies somewhere in between: on the one hand, I would argue that alternative copyright license schemes increase awareness and reflectivity on copyright issues in the digital realm. When people are asked to decide under which license they want to upload photos at Flickr, this probably makes them more reluctant in simply copy-pasting photos from others for their own homepage or blog.

The Creative Common system as a whole and related business models, on the other hand, may thoroughly be a challenge – if not for copyright per se, then for its currently long and extensive protection: First, it enables and thereby demonstrates the feasibility of new or alternative forms of cultural production (e.g. commons-based, Benkler 2006) and creative practices (e.g. remix, Lessig 2008). Second, as a system Creative Commons is more than just licensing, it is a licensing standard, which comprises an alternative regulatory regime.

In other words, by developing and using Creative Commons licenses, critics of the current copyright regime not only point to the latter’s problems and difficulties but also practically demonstrate the feasibility of alternative forms of regulation. Of course, the „degree of subversion“ then depends on the degree of license proliferation.