What is Creative Commons?
Creative Commons (CC) is a non-profit organisation which provides a set of free, generic licences which creators of intellectual property can use to distribute their work to the public digitally. It was launched in the United States in 2001 founded on the concept that people can contribute to a shared 'commons' of creative works by effectively giving up certain rights in a copyright work and allowing others freely to use, adapt, modify and distribute this work. This is achieved by the creator attaching one of a number of available CC licences in the form of metadata (a kind of digital 'watermark') to his/her work before uploading it to a website, such as Flickr. The metadata then allows the work to turn up in an Internet search when a person is looking for a CC work. Although CC works are better suited to use in an online environment (i.e. CC music for podcasts), the licences also cover offline use as well.
The CC movement has established itself in over 50 countries and is developing CC licences for more jurisdictions. In Australia the licences are managed by Creative Commons Australia, which is hosted at the Queensland University of Technology. The CC movement has been used in Australia's public sector, with a growing number of government bodies such as the Australian Parliament, the Bureau of Statistics and the Bureau of Meteorology utilising a CC system to license some or all of their materials.
What types of CC licences are there?
There are currently six Australian licences (version 3.0). All CC licences are non-revocable and last for the full copyright term (life of the creator plus seventy years in most cases). All CC licences allow a licensee, in all media and formats, to:
- copy and reproduce the work (including by downloading and printing);
- perform the work; and
- distribute and communicate the work (such as e-mailing or uploading it to the licensee's blog).
A summary of the licences currently used as of 2011 with their symbols follows.
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CC licence type |
Description (in addition to the above common rights granted) |
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Attribution (CC BY) |
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Attribution — Share Alike (CC BY-SA) |
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Attribution — No Derivative Works (CC BY-ND) |
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Attribution — Non-commercial (CC BY-NC) |
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Attribution — Non-commercial Share Alike (CC BY-NC-SA) |
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Attribution — Non-commercial — No Derivatives (CC BY-NC-ND) |
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What do I need to consider?
While an increasing number of people are using CC licences particularly online, the system is still undergoing continuous development. You need to carefully consider whether it is right for you and your particular needs and aspirations as an artist.
CC licences are irrevocable
CC licences are irrevocable and in their present form can only be for the full length of copyright (that is, your lifetime plus 70 years). This means you are giving away certain rights in your work forever and you can never change your mind because while you can stop having your work available to the public under a CC licence, you can't restrain a licensee (or any sub-licensees) who already has a copy of your work from using it under the terms of that licence. You can, however, terminate the licence with a licensee if he/she breaches those terms.
Even though your original intention in creating a work was to provide something that others can enjoy, you may ultimately find that you have the opportunity to turn it into a source of income if a publisher/record company becomes interested. As such, a decision that lasts forever isn't one you should make lightly, particularly if you are just starting out as a writer, or a composer, or a graphic designer, because you don't know what the future holds. You don't want to surrender your rights prematurely.
Ability to exclusively exploit your work
If you want to be able to exploit your work exclusively, CC licences are not for you. This is because of their inherent incompatibility with the full and unfettered rights a publisher (or a record company) would want you to have, and would expect you to grant to them. Most publishers want to be able to exploit and market the work exclusively to derive a profit. Why would a publisher invest money into publishing a work if people can obtain a copy of it for free?
Attaching a CC licence to your work will likely also conflict with the role of a collection agency of which you are a member. Collection agencies such as APRA and Viscopy take an exclusive licence or assignment of the work(s) from you so that they can negotiate and manage the licensing process and collect royalties on your behalf. If you have already licensed away some of those exclusive rights you have under copyright law (like the right to communicate and adapt the work), you may be unable to use a collection agency for those same works.
Who owns what?
There is a high potential for legal complications to arise from an 'overlap' of rights from CC licences which allow derivative works to be made. Under copyright law, you, as the creator of a work, have the exclusive right to adapt the work, and you own the copyright in that adaptation. However, the ownership of a derivative work under a CC licence is not clear, and is not expressly set out in those CC licences which allow derivative works to be made. Once you have a number of interconnected derivative works (each containing various proportions of the preceding work) all licensed under the Attribution licence for example, it creates a conceptual problem if ever you need to work out the chain of title to these derivative works. Even if you are not concerned with 'ownership', once you get a few steps removed from the 'original work' identifying the 'original author' and all other relevant parties for attribution becomes increasingly difficult.
Furthermore, CC works are meant to be 'synthetic' in the sense that licensees can 'mix' up existing works to create new ones. But what happens when a person combines a work with a Share Alike licence with a non-CC work? It could mean that the derivative product then has to be licensed under a Share Alike licence. On this level, it is arguable that a licensee's flexibility to create and distribute new works is constrained.
To add to this complexity, depending on the jurisdiction of the particular CC licence used, CC licences do not affect the creator's moral rights (as is the case in Australia) – that is, if you are a CC licensee, you may still face the possibility of the original creator taking issue with, and objecting to the distribution of, your derivative work on the ground that it constitutes a 'derogatory treatment' of his/her work.
Lack of control
With the speed of online distribution it doesn't take long for your work to end up being used by people all over the world. If such uses are all online (and assuming there is proper attribution or adequate copyright notice) there may be some hope of tracking your work, but it would be virtually impossible to know how the work is being used offline. CC is not a collection agency; it doesn’t monitor use of CC works, nor does it commence action on behalf of CC licensors or give legal advice about the licences. In using CC licences without independent legal advice, you're on your own.
Lack of warranties
When it comes to licensing intellectual property your protection is only as good as the warranties you obtain from the licensor. At present CC licences expressly exclude any warranties, including that the work licensed is non-infringing. This means that the work you choose to use (as the CC licensee) may be of dubious origin, and not actually the property of the CC licensor.
What exactly does 'non-commercial' mean?
There is disagreement about exactly where the line between 'commercial' and 'non-commercial' lies. 'Commercial' is currently defined as 'primarily intended for, or directed towards, commercial advantage or private monetary compensation'. However, it is not hard to imagine scenarios where a CC licensee can still indirectly derive income through using a CC work. For example:
· Film footage shot under a non-commercial CC licence is used by a filmmaker in his short-film, which is then screened at a not-for-profit film festival. Although the filmmaker did not directly derive any money from using the footage, his production company did attract investors as a result of the exposure from the film festival.
· Images taken and used under a non-commercial CC licence are used on a blog. The blogger is not paid for writing content however the blog margins do contain web advertisements that generate income for the blog-hosting website.
· Music licensed out under a non-commercial CC license is used as background music in a fashion boutique. The sole business of the boutique is selling clothes but the background music does help attract customers and encourage them to browse the wares.
In all examples the CC licensed work isn't generating money itself but it is contributing in some way to a commercial outcome. It is unclear whether or not this is permitted within the scope of a CC non-commercial licence. A better definition (and some judicial guidance) of the distinction between 'commercial' and 'non-commercial' in a CC context is needed to ensure that the system is less susceptible to exploitation by dubious licensees.
Is there an alternative?
If you want to get the fruits of your creativity 'out there' and gain exposure as an artist, but you're not sure exactly what you want to do with your works in the future (eg. whether or not you're serious about deriving an income from them), you could perhaps set up your own website and upload your works (streamed or in a low-resolution format). Prospective licensees can then contact you directly for a simple copyright licence which you can negotiate on a one-on-one basis to ensure that each licence is compatible with your requirements. Importantly also, you can start to develop a working relationship with your licensees which could blossom into a creative partnership.
Final words
By its nature, the CC licensing system sits somewhat uncomfortably with the copyright framework which is built on the foundation that the creator's monopoly rights are paramount. It is hard to say whether this tension would ever completely dissipate, even with the continual refinement of the CC licences. It needs to be recognised that the CC licensing system is an alternative to conventional copyright licences, not a replacement (and nor does it purport to be). It is certainly a viable and effective system if you, as a creator, are interested in distributing your work for educational and other non-commercial purposes, or simply satisfied in knowing that your work is being enjoyed or used in some shape or form.
It is important that you read not just the 'human readable' summary of the CC licence but also the full 'Legal Code' licence before making any decisions. If you are unsure about anything, get some legal advice before committing, so that you can make an informed choice about whether CC licences suit your particular circumstances.
This information sheet is based on an article by Jackie Emery which appeared in the March 2011 edition of ART+law.
