Friday 8 June 2012

"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?".


JHNG said...

"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."

I'm sorry but you still haven't got it. A cc licence is a private contract.

It is simply a set (or several sets) of terms that have proved sufficiently popular among potential licensors, that the CC organisation were able to make hay by popularising standardized versions.

CC does not replace or alter the standard statutory frameworks for IP -- except in the sense that any licensing agreement (realty included) involves forbearing from enforcing certain statutory rights in exchange for contractual rights.

If you think there is a market for further standardized licensing versions addressing other shades of grey, then get together with some like-minded folk, draft some standard terms, and start marketing them.

Alternatively, if you want to see moral rights enshrined in statute more widely, or want a statutory provisions that prohibit licensors from waiving their royalty rights -- then start lobbying legislatures.

Either way, laying into CC achieves nothing and simply spreads misinformation about the relationship statutory IP rights and contractual licensing rights.

JH said...

No, you still don't get it. Two things for starters:

(1) "Why CC gets it wrong" is plain offensive. CC may not create world peace and universal prosperity, but that doesn't mean CC is getting it "wrong". CC does what it sets out to do. It is a useful tool for many people in many circumstances. That is something to appreciate, not to denigrate.

(2) CC-BY is not the only CC license. The options to require SA ("share alike") and NC ("non-commercial use") are also highly significant. In particular, CC-NC allows for example a photographer to make their work available for non-commercial use; but to require that anyone who wants to reproduce it commercially must negotiate a royalty. That is something that is widely seen on the internet.

The most important thing is that the different CC options -- CC0, CC-BY, CC-SA, CC-NC, and combinations of them -- allow somebody to communicate very precisely and very quickly what their terms are. That is something that is hugely useful, even if it does only apply to those content to see their work reused in one of these ways.

Tor M said...

In addition to the objections raised above you seem to imply that the only way to make money on works is to retain the control over the distribution of digital copies. I don't think that's true (please note that I'm not saying that CC licensing is something for everyone either).

"This observation does beg the question, though, of what real contribution CC makes OUTSIDE the United States?"

Well, even if it doesn't contribute anything in the area of moral rights CC licenses can still be really useful for other reasons, can't they?

A CC license is meant to give legal certainty to the user of works. Moral rights might have the effect of introducing some legal uncertainty into that equation and to the extent that that happens one moves back closer to a kind of permission culture which to a certain extent defeats the purpose of the license. I think that's something worth discussing.

"Clearly, anyone who publishes his or her work under this licence agrees to forgo economic gain from that work."

That doesn't seem clear at all...

Crosbie Fitch said...

Ethically, the point of law is to secure the individual's natural rights (which include moral rights pertaining to their material and intellectual works). See the US Declaration of Independence.

The law may be used to grant (a priori unethical) privileges such as copyright and patent, but it is not supposed to do so. See the Statute of Anne and Thomas Paine's "Rights of Man".

The law may also permit individuals to alienate themselves from their (a priori inalienable) rights, but it is not supposed to do so.

A copyright license that fails to restore the licensee's liberty as far as possible (qv GPL) or utilises law permitting an individual to waive or surrender their natural rights is an unethical license.

Those who claim that licenses are contracts or that 'to be paid' is a moral right are not only demonstrating their ignorance as to what licenses, contracts or rights are, but are egregiously adding to everyone else's confusion.

Karlheinz said...

The author of this post still gets it absolutely, and clearly, wrong.

If you use ANY variation of the NC license, nobody is permitted to use your works commercially. In order to do so, they must acquire a license (usually through payment) - or artists can refuse a license altogether.

Artists can still sell their music, and prevent others from doing so. They can still join collection societies, such as ASCAP or BMI. They can still demand synch licenses. And so on.

How prevalent are NC licenses? Of all the people that use CC, 68% are some variety of NC. In contrast, less than 14% use CC-BY, CC0, or CC-SA combined.

Not only is CC not meant to put works into the public domain, it's not even what the vast majority of CC artists actually do.


Brad said...

Terry Hart, author of the Copyhype blog (named in 2011 as one of the top 100 legal blogs in the U.S. by the ABA Journal) referred to Dr. Sundara Rajan's latest 1709 post as a "compelling look at Creative Commons licensing" (

Joscelyn said...

Quotes from Mira's blog with related responses:

"The basic idea behind Creative Commons is to release one’s work into the public domain, and to do so immediately."

Using one of the 6 Creative Commons (CC) copyright licences does not result in the work being released into the public domain. Using a CC licence means that you are permitting others to reuse the work on the terms of the particular chosen CC licence. The copyright of the work is retained.

"but releasing your work under a Creative Commons licence makes it possible to send your work instantly into the public domain."

Only the use of the CC0 (CC Zero)copyright waiver releases the work into the public domain. Use of any of the six CC licences does not result in the work being released into the public domain.

"In practice, what this means is that you agree to forgo payments for the use of your work."

Use of the CC licences does not mean you forgo payments for the use of your work. The copyright owner always has the right to commercialise their work. The Non-Commercial licence for e.g can be used to earn money from users who use the work commercially whilst the work may be legally shared and disseminated for free by non-commercial users.

"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."

It is possible to earn money as well as use a CC licence. People do need permission to reuse the work and the permission has already been granted by the CC licence. If the intended reuse is outside of the terms of the permissions granted by the CC licence, then additional permission needs to be sought from the copyright owner.

"Creative Commons licences are not perfectly free of conditions."

CC licences are copyright licences and so without conditions they wouldn't be effective.

"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.

CC does not dispose of the copyright system, as the CC licences are built on top of copyright. If copyright did not exist CC licences could not exist. CC licences offer the copyright owner more flexibility in how they may exercise their copyright, by changing the 'all rights reserved' situation that is imposed by copyright law to 'some rights reserved' as decided by the copyright owner. CC licences may not be suitable for all artists/rights owners in all instances. An informed choice should be made by the artists/copyright owner to exercise their copyright in the best way that suits their particular aims.

Anonymous said...

.@technollama provides a response worth reading