"Why Creative Commons Gets it Wrong": a rejoinder

"Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong", Mira T. Sundara Rajan's guest post on Wednesday, has become more or less instantly one of the most controversial pieces to appear on the 1709 Blog -- and has certainly attracted some of the strongest criticism, not to say abuse (this is a moderated blog and the comments of some readers were rejected on the basis that personal abuse of an author is not an acceptable substitute for criticism of his or her position).

Mira has agreed to explain her position more fully in light of the points made by her critics. This is what she has to say (note: in her response, 'Creative Commons' is abbreviated as "CC"):

"In my blog post, I wanted to make two very simple points. First, I believe that CC should improve protection for moral rights in the new version of its licences. As I understand that preparation of the new version is in progress, this seems like a good time to point that out.

Secondly, I do not believe that CC should be the only mechanism for artists or authors in the United States to receive recognition for their moral rights. Rather, people who choose to publish through traditional channels should also be able to benefit from moral rights. At the moment, it would appear that the only outlet (other than CC) for recognizing an author's moral rights in the U.S. would be a private contract. Even other legal possibilities like the Lanham Act seem to be losing their relevance to moral rights (per Dastar). Given the limited bargaining power of most authors and artists, I think that a contract-based solution might only be applicable to very few individuals. Instead, standard-form contracts will include standard waivers of moral rights. Accordingly, the only way for moral rights to receive general recognition in the U.S. would be if U.S. legislators were to create protection for authors' and artists' moral rights (and, indeed, to do so according to the requirements of Article 6bis of the Berne Convention, to which the U.S. is a signatory).

In addition to these points, my post mentioned that the digital environment makes it difficult for authors and artists to receive remuneration for their work on the same basis on which they have been paid in the past. In other words, the publication model embodied by copyright law has become, in many respects, dysfunctional -- obsolete. During the past 10-15 years, while this transition from the old publishing world to the current digital scenario has been happening, only one viable alternative to traditional copyright protection has been proposed. That new model is CC. As a result, I think that CC is actually quite important. It represents a new way of thinking about publishing, and few other new ways of thinking have emerged out of the copyright problems of the past several years (we will probably be talking about iTunes and YouTube, as a method of music distribution for new bands, in a similar light in years to come ...).  CC has its place; as noted in my blog post, it is well-suited for so-called "amateurs" or people who, for various reasons, do not need or want to earn money from the publication of their work. However, it cannot apply to people who want to dedicate their lives full-time to the arts or to writing, unless they have independent means of subsistence.

Some commentators appear to be disturbed by my presenting CC as an alternative to copyright law. To me, it is self-evident that CC cannot outlaw copyright infringement, since copyright, in the U.S. and elsewhere, is a right conferred by federal law...! Someone who violated a CC licence could therefore be sued on at least two grounds - breaking the terms of the licence AND copyright infringement (for use of the work contrary to the terms agreed). This observation does beg the question, though, of what real contribution CC makes OUTSIDE the United States? In the U.S., the CC licence allows someone to give their work to the public while still benefiting from attribution. But, in many other countries, attribution is a moral right that cannot be waived, or may be waived only by explicit provision (the UK being a different scenario because of the assertion requirement in relation to attribution; in Canada, I believe that CC claims that implicit waivers of moral rights are allowed, but I'm not sure that this is the correct way to read ss. 14.1 (2) & (3) of the Canadian Copyright Act). So, by saying that moral rights are protected, CC overseas licences are merely acknowledging the state of copyright law in those countries, not adding anything to it. Someone who simply released their work on the Internet and announced that they "gave" it to the public might still retain their moral rights (ie. automatically and as required by local copyright law).

What seems to have roused the ire of the commentators on my post is my belief that CC is a non-commercial way of publishing one's work. I have not seen anything in any of the posted comments to change my understanding of how CC works. The fundamental licence on which the entire CC licensing system is built is an "attribution" licence. This means that anyone who publishes their work under a CC licence will expect to be attributed as the author of the work; but he or she will agree that the work can be used by anyone without payment of a royalty. Clearly, anyone who publishes his or her work under this licence agrees to forgo economic gain from that work. I suppose that, in theory, someone could simultaneously publish his or her work through conventional channels, and also release it under CC. But, unless the published work were different in some way from the work released under CC (ie. a sample released under CC), I cannot understand what incentive anyone would have to buy it. Why pay for something that you can get for free?".