text: Creative Commons licences are useful but oversold
  by Noric Dilanchian | 02/01/2008 | Intellectual Property Protection, Copyright Law
  Creative Commons is a popular movement feeding on a populist “anti-copyright monopolists” zeitgeist growing in recent decades, particularly among academics, hackers and the digerati.
  The reception given to Creative Commons has been so positive and widespread that it has obscured the fact that it is the right solution some of the time; it is not all of the solution for all people all of the time. It is useful for solving a range of needs of copyright creators, licensors, and users. It adds to and is supported by traditional copyright law and practices. It does not replace them. This article uses the word “traditional” to distinguish approaches to copyright licensing which pre-date Creative Commons.
  This article is a critique in praise of Creative Commons. It is structured around three observations regarding limitations or limiting design features in Creative Commons licences. To maintain focus, examples are only drawn from the Creative Commons Attribution 2.5 Australia licence. Many comments also apply to the five other Creative Commons licences available in Australia.
  If you believe a Creative Commons licence is a simple and effective solution for copyright licensing needs, then you need to know more. If you earn part of your living from copyright you definitely should be aware of legal risks and issues with Creative Commons licences relative to traditional alternatives.
  Before launching into a critique we’ll briefly put Creative Commons into context for readers unfamiliar with it.
  Overview of Creative Commons
  Lawrence Lessig founded the Creative Commons not-for-profit corporation in 2001 (www.creativecommons.org), and he has been the leading voice in the broad church of the Creative Commons organisation or movement.
  The formation of Creative Commons parallels Lessig’s involvement in the US Supreme Court 2003 copyright decision of Eldred v. Ashcroft as discussed in Lessig’s book, Free Culture [PDF]. Lessig’s side lost that case. This decision has been discussed by Australian author, Matthew Rimmer – see the referenced article.
  Since December 2002 Creative Commons has released several licences labelled “Legal Code” for users of Creative Commons licences, ie contracts relating to copyright work.
  Creative Commons licences are designed for creative works such as websites, music, film, photography, literature and courseware. Their bias is towards open access and expanding the “public domain”. As used in the copyright context, the public domain is a category description for the legal place where copyright works go when copyright expires in those works. In common speech we say for example, “the works of Shakespeare are in the public domain”.
  By mid-2007 jurisdiction-specific Creative Commons licences were currently available in 34 different jurisdictions worldwide (see map below). Nine others were under development.
  The Australian affiliate has its web presence at http://creativecommons.org.au. Catherine Bond, a PHD legal student at the University of NSW in a referenced 2007 paper put the six types of available Australian Creative Commons licences within the context of non-statutory public rights licences: “There are six Australian CC licences: Attribution, Attribution-NonCommercial, Attribution-NoDerivatives, Attribution-ShareAlike, AttributionNon-Commercial-ShareAlike and Attribution-NonCommercial-NoDerivatives. Each licence is available in three formats: a ‘Commons Deed’, described as a ‘human-readable format’ that is comprised of the main features of the licence but has no legal force; the Legal Code, which contains the full licence and is ‘lawyer-readable’; and the Digital Code, that is ‘machine readable’ and attached to the work by the licensor upon licensing the work. There are no fees payable.” (emphasis ours)
  Like the earlier GNU General Public Licence, a benefit of the Creative Commons licences is that their provisions are standardised, in this context meaning that they are typically not offered for negotiation. Instead they are offered on a take it or leave it basis. Partly due to this, their terms are available or ascertainable at the outset. In this way they are akin to online contracts known in legal jargon as click wrap agreements.
  These benefits contrast with what is usually the case in traditional copyright licensing. In the traditional model, those who wish to use a copyright work must first obtain permission, consent or a licence. This involves finding who to communicate to, finding contact details and then preparing and sending a message. After the message is received there is usually an exchange of information between the applicant and the owner, or between their representatives. This concludes in a negotiation, a deal and usually a contract between the claimed copyright owner (licensor) and the prospective copyright user (licensee).
  The Creative Commons collection of licences allows people to reserve none or some of the rights under copyright law. They have an open access bias. In contrast the design of traditional copyright permissions, consents and licences usually has a narrower range of rights granted to users and a broader range of limitations, restrictions and prohibitions imposed on users.
  As a neat summary, while “All Rights Reserved” notices are common in traditional copyright practice, Creative Commons instead uses a “Some Rights Reserved” notice.
  We now turn to a critique of Creative Commons structured around three observations made in the headings below.
  Observation 1: Designed to add a layer to traditional copyright knowledge
  Creative Commons licences add a layer to the pre-existing legal environment of copyright law and practice. When interpretation is needed, readers of a Creative Commons licence must turn to traditional copyright law and practice. Clause 8f of the the Commons Attribution 2.5 Australia licence states the licence is “…governed by the laws in force in New South Wales, Australia” hence the Copyright Act 1968 (Cth) and common law relating to it will apply.
  The layer that Creative Commons adds to the pre-existing legal environment of copyright law and practice broadly emerges from the open source movement in software creation and licensing (ie licensing of open source software) that began in the 1980s in the United States. Mapping Creative Commons across to that movement helps us to better appreciate the core reason for being and bias of Creative Commons.
  In the mid-1980s the non-profit Free Software Foundation sought a solution for licensing code that was comprised entirely of free software.
  One of those items of software was a computer operating system named GNU.
  Creative Commons gained its inspiration from the the Open Publication License used for GNU. The License is now largely defunct and is substituted by the General Free Documentation License (GFDL).
  The GFDL was intended mainly as a licence for software documentation, but is also in active use by non-software projects such as Wikipedia.
  The approach taken to derivative works in the the Commons Attribution 2.5 Australia licence illustrates both what Creative Commons gained from such roots and the questionable approach Creative Commons takes to derivative works. In open source software licensing, copying programming code is fundamental to achieve interoperability between software programs and the largely utilitarian purposes of most software.
  In contrast to software programming code, artistic, informational or educational content is typically not utilitarian and the notion of interoperability is generally redundant. This means that with such content there is a much lower need than there is with software to have a right to make a derivative work, eg make an adaptation. (Some would debate this, drawing on the fact that fair use and fair dealing provisions in copyright legislation could be a lot more permissive and helpful for users, especially in a Web 2.0 world.) It is surprising then that clause 3b of the Commons Attribution 2.5 Australia licence mimics open source software licensing provisions. Its extremely broad grant of rights to make derivative works states: “…a worldwide, royalty-free, non-exclusive, perpetual … licence … to create and reproduce Derivative Works”. In practical terms, in using the Commons Attribution 2.5 Australia licence, and subject to its moral rights provisions, an author of a short story permits adaptation of it into a play or film script, a photographer permits adaptation of it in a multimedia work, and a composer of music permits use of a full piece as a soundtrack.
  There are other ways that Creative Commons licences break out of conventional or traditional thinking. Creative Commons licences take elements of traditional copyright law and practice, particularly provisions (ie terms and other clauses) for granting or restricting use of copyright material, and then add some novel elements. The novel elements include use of:
  Symbols as shorthand reference to terms of use.
  Three formats to communicate licence terms – the Commons Deed, Legal Code and Digital Code. These collectively help communicate the terms of a Creative Commons licence for a specific work. The theory is that, for example, those with a low level of understanding will more readily appreciate the Creative Commons symbols; while those in search of technical legal specifics can read the Commons Deed and Legal Code.
  Trans-jurisdictional standardisation, including as regards licensing symbols and text.
  The rapid takeup of Creative Commons is evidence supporting the proposition that these symbols, formats and globalisation of licensing terms are clever and useful. They build a layer onto non-statutory open public rights licences and traditional copyright law and practice.
  There has been criticism in Australia as regards the Creative Commons symbols and licences. It has been said the symbols can confuse. Comments have been made regarding the general inflexibility of the licences. For example see here. Authors and critics who have spent considerable years understanding and practising traditional copyright law and practice need to be cautious in making observations based on experience. Experience can carry with it hidden and unhelpful bias in favour of entrenched or traditional models and antagonism against a new approach, such as is presented by Creative Commons licences.
  Observation 2: Designed for those who don’t live off copyright remuneration
  Observation 2 expands the critique of Creative Commons licensing terms.
  The reception for Creative Commons licences has been especially positive in the blogosphere. This is understandable. The dominant model for blogs has been to build credibility or eyeballs and to either share thoughts and creations in blogs free of charge or monetarise them with advertising or via promotion and sale of services (eg consulting services) or demonstrated competency in niche fields (eg specific industry data and analysis)).
  Illustrating the point, speaking on Radio National on 20 November 2007, Jessica Coats (Project Manager, Creative Commons Clinic, Queensland University of Technology) succinctly put the case for Creative Commons for individuals and organisations on the web:
  If you wanted to take full advantage of the internet to make your material available, and as a publicity and distribution resource, then basically putting your material up on one website and locking it on that website, using copyright law, isn’t the most effective way to do that, and people are gradually realising this and realising that by being a bit more flexible with their copyright management, they can often get much larger returns back.
  Let’s put this another way. Social networking, Web 2.0 sites and blogs provide opportunity for many copyright creators uninterested in business models, ie a commercial approach that involves using tight legal controls to earn revenues specifically from copyright licensing, whether online or offline.
  A factor in helping to rapidly popularise and indeed commercialise Creative Commons has been that it was born just as an exponentially growing, global and new Web 2.0 user base or audience or market emerged in around 2003 onwards with a perception that Creative Commons licences served it’s need to share or license content-based copyright material (ie not software).
  Nitty gritty elements of the Creative Commons Attribution 2.5 Australia licence illustrate our point about bias.
  Creative Commons licenses say nothing about remuneration and they are irrevocable, grant rights worldwide and for the full term of copyright. What is “commercial” or “non-commercial” is perhaps under-defined.
  “High-level licence attributes” are listed in clause 1h of the Creative Commons Attribution 2.5 Australia licence: “…Attribution, NonCommercial, NoDerivatives, ShareAlike.” They are high level in the context of what might be described as the Creative Commons ideology and certainly for many in its audience. For example, the career advancement of academics is often based on the publishing of papers credited to them (ie attribution) in circumstances where the academics and their institutional employers do not expect a publishing fee, royalty or other remuneration specifically from copyright licensing (ie non-commercial). Consistent with this, absent from the Creative Commons Attribution 2.5 Australia licence are provisions setting out royalties, fees or advances, a limited copyright duration or a myriad of other restrictive rights granted provisions found regularly in traditional copyright licensing contracts. When it comes to copyright licensing, it appears academics and Creative Commons typically favour provisions which promote replication rather than remuneration.
  For copyright users seeking to use copyright material to build financially remunerative arrangements there are huge limitations in Creative Commons licences relative to use of types of licence available in traditional copyright law and practice. Such users would gain little or no comfort from the lack of contractual warranties. In the Creative Commons Attribution 2.5 Australia licence, clause 5 disclaims warranties and clause 6 limits them.
  Only a very clever or rare operator, or one as big and powerful as Google or its YouTube arm, could succeed commercially in such conditions. Prudent, cautious or conservative investors, lenders and collaborators are likely to seek the security of warranties and indemnities before working with an individual, organisation or company which seeks to build a commercial enterprise founded on copyright materials licensed under Creative Commons. In fact there are examples of such clever, rare or big operators. Two discussed below are Revver and Flickr.
  Given these key design elements of Creative Commons licences, it is potentially misleading for the Things to Think About page of Creative Commons to have such a brief overview, for example discussing the irrevocable feature of the licences.
  Having to grant copyright rights worldwide, means that a licensor can’t distinguish users by territory or geography. To keep things simple and to maintain the bias towards open access, Creative Commons licences are designed to to not distinguish or discriminate between different users to a finite degree (as is possible with situation-specific, transaction-specific or other types of customised traditional copyright licences). For example, to give financially limited users free access but to apply a scale of fees for those with money. Some scope for variation is preserved as against future users by the following in clause 7b of the Creative Commons Attribution 2.5 Australia licence: “…Licensor reserves the right to release the Work under different licence terms or to stop distributing the Work at any time…”.
  These limitations can be overcome by using traditional copyright licences and practices instead of a Creative Commons licence. They can’t be used in addition to a Creative Commons licence, clause 8e of the Creative Commons Attribution 2.5 Australia licence contains this sentence: “This Licence constitutes the entire agreement between the parties with respect to the Work licensed here.” (Emphasis ours)
  In the Creative Commons Attribution 2.5 Australia licence, the rights granted paragraph (clause 3) grants “worldwide, royalty-free, non-exclusive, perpetual…” rights. Also, Creative Commons licences expressly prevent works being made subject to Technical Protection Measures, or technological protection measures as they are defined in Australia’s Copyright Act 1968 (Cth).
  These provisions and others fit with the design bias of Creative Commons licences. Creative Commons licences can suit:
  Hobbyists who envisage that one day they might make a living from their copyright work, but for now can’t justify paying for legal advice, legal negotiations and customised licence contract drafting.
  Academics and educational institutions if and when they use the model of publishing openly to build knowledge, their reputations or other causes which are not directly commercial.
  Individuals and some commercial organisations to build an audience or market presence while making public or licensing out software, photographs, articles, videos, paintings and other copyright works.
  This is illustrated by Revver, a US-based video aggregater, like YouTube. Revver attaches advertising to user-submitted videos and shares all ad revenue 50/50 with the creators after paying 20% off the top for video distributors (sites that embed the video become distributors). Revver’s upload licence allows for redistribution under the Attribution-NonCommercial-NoDerivs 2.5 Creative Commons Licence. In September 2007 Revver announced that in its first 12 months of operation it had paid US$1 million to those who uploaded material.
  It is also illustrated by Yahoo’s photo-sharing site, Flickr. Flickr currently hosts more than 55 million images under Creative Commons licences.
  Observation 3: Designed to be simple, not suitable for all
  Creative Commons is a useful innovation with limitations in many cases and circumstances. Those limitations are partly a consequence of considerations covered in Observation 1.
  Creative Commons seeks to create an easily understood set of rules for people to give and access works which would otherwise be the subject of copyright on its own or copyright in combination with a privately negotiated contract. While it is not always the case, generally Creative Commons suits little guys.
  It has been claimed that promoters of Creative Commons are supporters for modern day digital gleaners. This makes a jump cut in imagery from agricultural age gleaners to information age gleaners (pictured right is François Millet famous 1857 painting, The Gleaners). The claim is insightful but ultimately unfair given what is being built at Flickr and in educational institutions using Creative Commons licences.
  Creative Commons aims to help share open content by clarifying or simplifying permissions, prohibitions and requirements. These types of terms are also found in traditional copyright law and practice licences. They are licensing terms with a high degree of practical impact. They vary a great deal in wording between licences (though it should be noted that there are very few provisions in traditional licences which could be fairly said to be highly standardised across types of content, types of industries or countries). They are also complex for those with little or no legal know-how or training. Their effect is that:
  Permissions are granted as regards, for eg, reproduction, distribution and derivative works.
  Prohibitions are imposed to prohibit, for eg, the licensee making commercial use of a work.
  Requirements are stipulated, for eg, for the provision of copyright notices and credits.
  A design rationale for Creative Commons is to standardise copyright and contract paperwork and thus reduce the need for people skilled in legal thinking to interpret them. As discussed, it does this for permissions, prohibitions and requirements (many are contained in the lengthy clause 4 of the Creative Commons Attribution 2.5 Australia licence).
  A significant and positive consequence of such standardisation is that a Creative Commons licence (for situations where it is suitable or appropriate) can reduce transaction costs compared to traditional copyright practice.
  For example, before using a part of a copyright work, traditional copyright law and practice requires that you obtain the owner’s copyright permission or consent.
  In traditional copyright law and practice there are considerable transaction costs. There is no mandatory model wording for copyright permissions and consents. Similarly, there is no mandatory model wording for copyright licences. Copyright paperwork is therefore highly variable and flexible. It has been used for maybe 150 years or more in Australia, and certainly in England and the United States, to produce customised legal documents rewarding the creators of copyright works and downstream beneficiaries including publishers, distributors and users.
  Creative Commons provides a useful additional layer to contract and traditional copyright law and practice. It can benefit little guys. It is not a stand alone solution for all issues, situations and players.
  Given the remarkable growth of Creative Commons, its ideology and licences are obviously enticing. If you consider using them you need to be clear on what you are giving away, what is not covered, what remains unclear and how your legal position may be affected in the future, particularly with down-stream collaborators such as publishers, distributors, investors and other collaborators seeking to derive commercial value by regulating the availability of copyright works.
  Lawrence Lessig, Free Culture (Penguin, New York, 2004) (also available digitally at http://www.free-culture.cc/freeculture.pdf ).
  Rimmer, Matthew. “The Dead Poets Society: The Copyright Term and The Public Domain”, First Monday, June 2003, Vol. 8, No. 6<http://www.firstmonday.org/issues/issue8_6/rimmer/>
  Bond, Catherine. “Simplification and Consistency in Australian Public Rights Licences”, July 2007 at <http://www.austlii.edu.au/au/journals/UNSWLRS/2007/51.html >
  Bowrey, K “The ideal copyright framework for academic authors? A bounty to genius and learning,” Australian Academic and Research Libraries Journal, Vol 32(4) 200 <http://alia.org.au/publishing/aarl/33.4/full.text/bowrey.html >
  Geneva Declaration 2004 ‘Geneva Declaration on the Future of the World Intellectual Property Organization <http://www.cptech.org/ip/wipo/genevadeclaration.html>
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