Wednesday 6 June 2012

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?


Mike said...

To say that the idea behind Creative Commons is to immediately "release one’s work into the public domain" couldn't be further from the truth. Like the F/OS software licenses that inspired Creative Commons, the continued existence of copyright is necessary for the license to have any effect whatsoever. Certainly, Creative Commons offers Public domain tools, but those are very, very different from CC licenses generally. This isn't "dispos[ing] of the copyright system" — this is hacking the copyright system.

Furthermore, Creative Commons isn't a unitary alternative that's meant to somehow fix copyright for everyone, everywhere. It's clever licensing that solves one particular problem: that is, often, people want to share their work and, in a post-formalities world, it can be very difficult for them to do so. The author seems to desire an alternative licensing scheme that is super-copyright, rather than copyleft. That is, full exclusive rights, plus extra moral rights benefits. The beauty of contract is that this super-copyright can be created, but I can't imagine looking to Creative Commons to do so (I mean, "Commons" is in their NAME for crying out loud!).

And don't get me started on the apparent assumption that commoditization is the only means of monetization. Egads!

Mike said...
This comment has been removed by the author.
Julian said...

I think it is Dr Sundara Rajan who doesn't get Creative Commons. She says: "Creative Commons [...] disposes of the copyright system" but CC works within existing copyright law. Also, it is a voluntary system. No one is forced to forego any rights and release their work to the public domain.

Her final point says in effect: "how can you relinquish your right to be paid for your work and still make money?". Well, that's the whole point of CC. There are other ways to make a living from things you create. The biggest advantage of CC is vastly increased exposure that generates other opportunities.

Finally, it is debatable whether absence of copyright is necessarily a bad thing. e.g. See

jhng said...

It's worth bearing in mind that Creative Commons is based on regular copyright law and is just one of many possible copyright licences -- ultimately, a creator can license their works on any terms they please.

If an author wants to have a CC-style attribution obligations coupled with royalty obligations, They can just mash up the two elements into a new licence form. And including attribution provisions in a licence would not (as I understand it) preclude including royalty provisions.

The fact that CC has become so popular is a testimony to the fact that such a large swathe of people are genuinely more interested in attribution than payment, and find it convenient to have an off-the-shelf licensing solution that addresses this need. But I don't think this undermines any other creator's freedom to go down the more traditional royalty-based route or any blend of the two that their lawyers can cook up.

Andrew Robinson said...

I wish there was a polite way to say this, but there isn't... this article seems to be based on a complete misunderstanding of the CC licence system.

The author makes basic factual errors (only the rarely used CC0 licence "release[s] one’s work into the public domain") and flawed reasoning (nothing in the other CC licences prevents making money from your work). This means the conclusions drawn are just plain wrong.

The author seems to have ignored the fact that CC licences are non-exclusive, and ignored the commonly used NC (no commercial use) variations entirely. It's these two principles that form the mechanism for making money from CC licenced content. All the licences (apart from CC0) reserve some rights, if a publisher wants to have these rights, they have to go back to the author to get them.

For example, consider music released under the CC NC BY licence - this means everyone has a licence to give it away, but not a licence to make money from it. If a major label wants to put it on a compilation, or a film director wants to use it in a big budget film, they have to go back to the artist and negotiate an additional licence that would allow them to do so. Essentially the NC BY licences are ways of implementing pirate party policy on copyright exceptions, you can share it like a library does, but not make money from it.

This is a really simple and elegant idea that solves one of the big problems with copyright as it stands today: if you make money from this, so do I. If you don't make money from it, then I don't either - and it would be wrong for me to prevent you from doing whatever you are doing by demanding money that you don't have, in the way that collecting societies currently do.

Anonymous said...

I am really puzzled by this blog post. What do you mean by sentences such as "Creative Commons licences are not perfectly free of conditions." How could they be? They are copyright licenses.
Or by calling Creative Commons an "alternative to copyright protection" - Creative Commons licenses are based on and protected by copyright.

Much of the blog post reads as if there had been little legal discussion on the pros and cons of Creative Commons out there. Just look at two papers from Niva Elkin-Koren on the issue, both available at SSRN:
"Creative Commons: A Skeptical View of a Worthy Pursuit"
"What Contracts Can't Do: The Limits of Private Ordering in Facilitating a Creative Commons"

Aside from that: critizing that CC does not provide for author income is problematic for several reasons. To name just three reasons for that:

first, there are business models totally compatible with different CC licenses such as Kickstarter or jamendo. The more CC licenses are used, the more such business models we will see.

second, it is a myth that conventional copyright secures author income. the main source of income of the majority of artists depends little on (all-rights-reserved) copyright (see, for example, "Bad for Artists?").

third, in large and important fields where copyrighted works are produced such as science and education, production of these works is mostly secured via public funding, which is why the Open Access and the Open Educational Resource movement have strong arguments in favor of open licensing mandates in these areas.

CopyOwner said...

Mike, Julian and jhng have already addressed some fundamental flaws in Mira's understanding of CC. I would add that she seems to imply a "right to be paid" where there is none. U.S. copyright law provides several exclusive rights, but has never provided a right to be paid. (Indeed, I would pay NOT to be exposed to some works.)

I view CC as a terrific tool to simplify what every author is free to do already, without CC. One of the greatest travesties of the current Copyright Act is that it presumes that every author of every work from the pre-schooler's first finger painting on up is prepared to sue anyone who reproduces, publicly displays or publicly performs the work. Millions if not billions of copyright holders, just like those posting comments here, have no such control in mind, and would prefer that the public feel absolutely free to re-post, forward the e-mail, display it on their Facebook page, and so on. Rather than each of us having to sit down and figure out what sort of "pre-license" we want to attach to the work, only to have the public unwilling to invest in reading a long licensing document that might well be longer than the work, the CC system provides for a short-hand standardization of the most common types of permissions most authors would consider.

But each author is also free to say, "You may make as many copies or phonorecords of my work as you wish onto any medium you desire, and distribute them, provided that you pay me $2 for each one." The author could say, along the moral rights line, "You may publicly perform my work at no cost at a Democratic party event but not at a Republican party event, or vice versa; or charge $20,000,000 for use in a tobacco commercial but only $20 for use in an anti-smoking ad campaign.

Of course, CC has no business creating a $2 license, since all authors should be free to set their own prices. But the CC system is certainly no barrier whatsoever to an author making money from creative works. That notion is totally unfounded.

Andy J said...

Once again, I feel Dr Rajan appears to take a contrary view almost despite the facts.
As other have pointed out, Creative Commons works within copyright law, not outside it. In this context I think it is unwise to equate CC with the 'public domain' since generally works in the public domain are deemed to free of copyright (either because the term has expired or copyright does not subsist in the work).
To rail against artists who use the CC system, because it somehow puts those who do not at some sort of (moral?) disadvantage, is like saying that the rich should not be philanthropists or that lawyers should not undertake pro bono work.
And the point she seems to miss altogoeter is that the CC system represents a different mind-set. As with shareware of old, it relies upon the goodwill of users, rather than the deterrent value of the law. I suspect that most artists who use CC are content to trust the wider world to respect the particular licence they have attached to their work, but won't be overly upset if, for instance, a user fails to give the attribution requested. I am unaware of any cases where CC licensors have sued over non-observation of the licence terms: I'm sure there will have been some, but generally I imagine that the worst an abuser might suffer would be a mildly hurt appeal to their better nature!

JH said...

Cluelessness on stilts.

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

Creative Commons should be a new and powerful reason for the American government to re-examine the possibility of introducing federal legislation on authors’ moral rights... because it fails to recognize an artist’s right to be paid for his or her work.

Creative Commons... disposes of the copyright system without, however, providing an answer to the all-important practical question of how artists are to survive.

CC is simply a set of standard licenses which allows creators to release materials for certain uses, while specifying conditions in a standard, easily and widely understood, legally watertight way -- specifically to insist on no usage without attribution, or no derivative works, or no commercial usage, or "share alike" usage (i.e. derivative works allowed, but only if subject to no more restrictions than the original work).

So, for example, the Yale Center for British Art releases images of their artwork under a CC0 license -- essentially waiving all rights they might have in the photographs of their images.

On the other hand, the umbrella group for Scottish Libraries require to be contacted for permission if you want to modify one of their images of author events happening in libraries, or use it commercially; but they're fine for unmodified non-commercial use.

The range of standard CC licenses simply gives some very useful standard widely understood options for people who want to share their works in this way.

It doesn't take anything away from other people who don't want to share their works in this way -- if you don't want to release your work under a CC license then don't release your work under a CC license. End of story. Nothing's lost. You've still got the full protection of Copyright law that you had before.

Ms. Rajan's key gripe seems to be that most commercial licenses that artists sign don't include the same protections that CC licenses offer. But that isn't a strike against CC licenses. Rather, it's an opportunity
for Ms. Rajan to craft whatever similar would-be standard clauses she thinks are needed to fill that gap, and then to make them available for commercial artists and writers (working together perhaps through their membership associations) to demand be included in their publishing contracts.

A Gormley said...

It is quite clear from the detailed comments above that Dr Sundararajan is completely clueless about what CC licences are and how they work and equally clueless as to what artists want, how artists do survive or have survived before CC. Dr. Rajan needs to wake up and research whats going on in the real world....

john walker said...

Can I ,a Visual Artist, add that
every time I see this deliberate confusing of moral rights with economic rights I see:
A deliberate attempt to transfer individual rights of control of usage (including non-usage) to compulsory collective usage under the guise of individual moral rights !
There are lots of situations where non use of copyright is the best individual use of copright

Steve said...

The author has stirred up a hornet's nest simply by explaining the facts accurately.

Copyright was devised to create an economic incentive. Creative Commons does nothing to address the main problem facing creators today. It assumes the main problem isn't economic, but administrative: that copyright is a regulatory "burden". As such, it is an ideological exercise.

The cost to the creator of using a CC license is enormous, they surrender autonomy and flexibility for the benefit of "the system".

Creative Commons has always had something of the feel of a cult to it; the defensive and hostile responses to this article here only confirm that impression.

Brad said...

It appears that most all of the readers who have posted comments have missed the meaning and importance of Professor Sundara Rajan's post. The comments have focused on details that are irrelevant to her argument and which show a misunderstanding of the article.

Her premise is simple. In the U.S., there is no explicit protection for Moral Rights, including the rights of attribution and integrity. Creative Commons (CC) provides a means for protecting the right of attribution. An author, therefore, must use a CC license to ensure explicit protection of attribution. However, by using a pure CC license, that author must forgo a royalty stream from the distribution of his or her work that would be protected by standard copyright. Furthermore, the moral rights protection that CC offers is incomplete and does not cover integrity. Even CC is an incomplete substitute for moral rights, though it is the best mechanism available in the U.S.

I see several posts, including Mike’s, taking issue with Dr. Sundara Rajan’s notion that CC “disposes” of copyright. Clearly, she doesn’t mean that a CC license eliminates normal copyright, but that releasing a piece of work through a pure CC license circumvents the potential for economic rewards that copyright protects.

And, yes, CC is a voluntary system, as Julian points out. However, if someone wants his or her attribution with respect to a work to be explicitly protected (which it seems any person building a reputation would be interested in ensuring), there is no other recourse but to CC in the U.S.

Certainly, there are ways to use CC to create exposure for one’s work, which can potentially lead to income through other means. For example, you might release one portion of a larger work with a CC license and then charge for access to the remainder. But it is undeniable that there is a contradiction between releasing a particular piece of work with a pure CC license and making money from the sale of that particular piece of work. There is no incentive to pay for a work that is available for free. That, as I understand it, is Professor Sundara Rajan’s point. Or, there might be some novel models for generating income streams that people are experimenting with or developing; but those new methods are marginal. I would expect that the vast majority of commerce and income for creators comes from mainstream methods for generating value. Commoditizing a work may not be the only way to generate income from it, but it is the most obvious, straightforward, and common means. It is also that mechanism for generating income from a work that a pure CC license eliminates.

There is an interesting comment by jhng about the potential to combine a CC attribution license with a royalty-based standard copyright contract. Firstly, this seems to contradict the fundamental idea in CC of sharing a work freely. Secondly, such a contract would be one instance of a hybrid contract that is unique. It is not the standard CC model. Once you include a royalty in the contract, it is no longer a pure CC license.

Another comment mentions how the Yale Center for British Art and other organizations release material under a CC license. This is in no way relevant to an individual artist who relies on making money from his or her work for a livelihood.

A Gormley has a particularly negative slant on the article, but offers no new idea to the discussion and does not demonstrate that he or she has any understanding of the article or even the "detailed comments" to which he refers. I find his instinctual negative gut reaction characterizes the tone of a number of the previous comments.

Hans Sachs said...

So, suppose Mira let you publish this piece without payment because she believes in open access, or needs the publicity, or perhaps nobody would pay for it anyway. Or any other good or even bad reason.

Every artist has the right NOT to be paid for their work. What part of that basic fact does she not understand? This has nothing – repeat NOTHING – to do with moral rights.

And this is how CC works.


Nick said...

Creative Commons cannot be all things to all people. If you don't agree with the terms then don't use it.

You are still able to sell you works if you licence them under creative commons. The great thing is that if you specify that only non-commercial use is allowed, you can then negotiate a separate licence to party that would like to use the work commercially. And for everyone else that wants to use it non-commercially they don't need to ask permission.

The author didn't really do any research such as readings of the actual licences or is trying to spread disinformation.

Howard Knopf said...

Is Mira Rajan Wrong or Right About Moral Rights and Whether Creative Commons “Gets it wrong”?

Ariel Katz said...

You write that "Her premise is simple. In the U.S., there is no explicit protection for Moral Rights, including the rights of attribution and integrity. Creative Commons (CC) provides a means for protecting the right of attribution. An author, therefore, must use a CC license to ensure explicit protection of attribution." But even this premise is false.
If an author can use a CC license to ensure attribution, then she can include an attribution condition in any type of license. This is not uncommon, and attribution requirements (as well as conditions pertaining to the integrity of the work) can be found in many traditional, non-CC, licenses.
Essentially, it boils down to the question of what the default rule is (that is, do authors have default moral rights but those can be waived, or contracted-out, or whether the default rule is no moral rights but they can be contracted-in), or to the question whether moral rights should be inalienable.
One can make plausible argument in defense of making moral rights default or even inalienable, and explain why allowing authors to use licenses to demand attribution is not good enough. But this has nothing to do with CC licenses as such.

Crosbie Fitch said...

One doesn't 'make' moral rights inalienable.

Rights are inalienable because we are born with them, because they are natural. Law can abridge them (copyright annuls our right to copy), but it can't take them away (we pirates continue to assert our right to make copies).

The question is not whether moral rights should be inalienable, but whether law should unjustly recognise their waiving. It should not. Why on earth should an author be able to waive their right to be identified as the author of their work, e.g. so that a fraudster can claim authorship in their place?