Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong

In the third in her series of posts for the 1709 Blog on sensitive issues related to moral rights, Mira T. Sundara Rajan takes a close look at the implications for authors of the use of one of the most widespread and misunderstood institutions of modern copyright law: Creative Commons. This is what she has to say:

Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong

It is a well-known fact that the United States does not protect the moral rights of authors. This point has been noted in comments on earlier posts in this series, and there is only one exception to this rule (at the federal level) – a form of limited recognition for the moral rights of visual artists alone, represented by the Visual Artists Rights Act (VARA) of 1990 (some states do provide protection for moral rights, particularly in relation to the fine arts, but the significance of these statutes is limited, and a discussion of them is beyond the scope of this post). This legislation was adopted at the height of American interest in moral rights, shortly after U.S. accession to the Berne Convention, effective from 1 March 1989. The Berne Convention has protected moral rights since 1928, when it was revised to include provisions on an author’s right to be named as the author of his or her own work, and to protest damage or distortion of the work – particularly where the mistreatment of the work has affected the author’s reputation or “honor.”

When the United States joined Berne, the American government argued that U.S. law provided recognition equivalent to the moral rights of authors through legal alternatives that were well-established in American law. Possible legal protections for moral rights included actions for defamation or slander, and, until recently, consumer protection from false advertising under the Lanham Act – an “alternative” to moral rights that was effectively ruled invalid by the U.S. Supreme Court in Dastar Corp. v Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). Dastar is not clearly against the protection of moral rights through Lanham Act provisions; it is, rather, subsequent interpretation of this case that seems to have sealed the fate of moral rights under Lanham: I discuss this in my book, Moral Rights, 144-48. Today the United States has less legal protection for moral rights than ever. But there is a new alternative venue for moral rights in the United States: Creative Commons. The shortcomings of this alternative are so striking that the Creative Commons phenomenon should be a new and powerful reason for the American government to re-examine the possibility of introducing federal legislation on authors’ moral rights – not because Creative Commons has failed to recognize moral rights – but because it fails to recognize an artist’s right to be paid for his or her work.

Creative Commons is an extraordinary phenomenon. It has emerged as a true popular alternative to copyright protection – the one functional alternative to established models of copyright law that seem to have failed, in many crucial ways, in the technological context. The basic idea behind Creative Commons is to release one’s work into the public domain, and to do so immediately. All works eventually find their way into the public domain – often as long as 70 years after the death of the author – but releasing your work under a Creative Commons licence makes it possible to send your work instantly into the public domain. In practice, what this means is that you agree to forgo payments for the use of your work. You will receive no royalties from anyone who uses it, and, a point that is equally important from the perspective of copyright theory, no one needs your permission to use your work.

The idea of releasing works into the public domain for free and unconstrained use may be philosophically appealing, but, for many authors and artists, it must also be deeply unsettling. Creative Commons brings into stark relief the contrast between those who earn regular salaries and those who depend on royalties from the use of creative works. It is easy enough for a law professor, for example, to give his or her work to the public under a Creative Commons licence, since he or she need not depend on book royalties to survive. However, for a full-time writer, giving away work means that he or she will have to find something else to do to earn a livelihood. In other words, Creative Commons represents the legal face of a more general characteristic of the digital era – the erosion of artists’ traditional methods of making a living (this point is discussed more fully in my article, “Creative Commons: America’s Moral Rights?” (2011) 21 Fordham Intell. Prop., Media & Ent. L.J., available here).

Creative Commons licences are not perfectly free of conditions. To explain this point more fully, it should be noted that Creative Commons licences are actually a family of different types of licence, progressing hierarchically from the basic version, known as the “attribution” license, to licences that gradually impose further restrictions on the activities of users. The culmination of the system is a sort of “free advertising” licence, which requires that attribution of the author be maintained while the work, itself, is not altered – called, in Creative Commons terminology, the “no derivatives” principle, because it prevents anyone from making a derivative work (such as a translation or a collage) out of your work.

Clearly, this system of licenses has some important points in common with the moral rights of authors. Attribution is the foundation of the system, the basic principle on which Creative Commons licences are built, and from which, no use of a work can be exempt. At the same time, the idea that no derivative works should be made could be seen as a very general version of the moral right of integrity. It is one way of avoiding possible distortion or mutilation of the original work, but only in situations where the alteration of the work is dramatic, and constitutes the creation of a new, “derivative” work in its own right (as in the Monty Python case, Gilliam v ABC, 538 F.2d 14 (1976), here). The possibility of less dramatic alterations is not dealt with by the Creative Commons system.

The sense of a deeper affiliation between Creative Commons and rights of authorship can be further explored by considering what Creative Commons does when it designs licences for use outside the United States. Here, the fundamental problem becomes that every other jurisdiction in the world recognizes moral rights in one form or another. The international licences take an inclusive approach to moral rights. In the case of civil law countries, where an author’s ability to waive his or her moral rights will be limited, the Creative Commons license will not – indeed, cannot – interfere with the moral rights provided by statute. In common-law countries, Creative Commons will recognize the possibility that moral rights can be waived, but, in their comments on a draft proposal for the next version of the licences, they note: 

“We do not want to overreach. We have heard little justification for licensing or waiving moral rights that are unrelated to the exercise of the rights granted. The scope of the waiver is no greater or less than the scope of the licensed copyright and neighboring rights, except where no waiver is permitted in which case moral rights remain unaffected.”

Creative Commons is currently engaged in a new round of “versioning”, which is to overhaul the system of Creative Commons licences by the end of 2012. At this stage, Creative Commons essentially appears to be exploring two options regarding moral rights. The first would be, simply, to clarify the existing language of the licences in such a way that moral rights could be waived by implication (ie. with no need for any explicit statement by an author waiving his or her moral rights), wherever waivers of moral rights are generally permitted by local copyright law. Alternatively, Creative Commons is considering the possibility of taking “a more proactive stance in support of moral rights.”

Of these two possibilities, it would be exciting for Creative Commons to choose the latter, and support moral rights. This would create some new opportunities for protecting the quality of culture in the non-commercial and public domain environments. Maintaining the attribution and integrity of knowledge in the digital environment is a supreme challenge, and moral rights in Creative Commons works could lend strong support to doing so.

However, choosing this option may not be as easy as it seems at first glance. A pro-moral rights position could involve a degree of fundamental conflict for the Creative Commons movement, since the very idea of the movement is to create a realm where works can be “freely” disseminated. The comments on the Creative Commons information website suggest that, on some level, where moral rights are concerned, Creative Commons just doesn’t get it. According to the website, supporting moral rights “creates an internal contradiction where the licensor gives anyone the permission to redistribute his work, but then has the possibility to arbitrarily prevent someone from doing so, just because he disliked that someone.” The purpose of moral rights is to protect the cultural domain, and to establish respect for the creative ability and efforts of artists. Artists are responsible for asserting moral rights, but the basis of any moral rights claim is that the artist dislikes the treatment of his or her work, for artistic reasons that he or she can articulate. The goal of asserting an integrity right would not be to target any particular individual for “arbitrary” reasons – few artists could afford to launch legal proceedings on such grounds. And, indeed, if a creative work were to be treated in a derogatory manner, the public as a whole, and not only the artist, could stand to lose something important.

The real problem with Creative Commons is that it disposes of the copyright system without, however, providing an answer to the all-important practical question of how artists are to survive. In the United States, artists who want moral rights can opt for licensing their work through Creative Commons, but (unless they choose to license only a few select works to benefit from “free advertising”), they cannot expect to enjoy moral rights protection and earn money from their work at the same time. Welcome to the future?