At the time of authoring this article, Nick Sweeney was a legal volunteer at Arts Law.
Officially launched in 2001, the Creative Commons project is a system of licences and associated databases that allows for creators to selectively grant and retain rights in innovative ways. Championed by Lawrence Lessig internationally, the project has sought to create categories of more flexible licences that can easily be selected and applied to various types of works.
The Creative Commons has grown significantly in terms of its profile as well as accumulated work since its launch. While the system of licences is argued by many to disrupt some traditional notions of copyright, advocates such as its chief Australian advocate, Brian Fitzgerald, argue that the commons incorporates new information management technologies while building on existing intellectual property.
Creative Commons Australia, and is hosted through the Queensland University of Technology.
Creative Commons advocates argue that creativity and innovation rely upon a rich heritage of prior intellectual endeavour, and that creativity is in many cases a cumulative exercise. Put simply, the Creative Commons project aims to facilitate "reasonable, flexible copyright" as a response to increasingly restrictive default rules so as to enhance the reusability of accumulated works.
Furthermore, the project aims to make content easily accessible through the creation of effective, often electronic, labelling and retrieval systems. One of the ways that this is achieved is through creating generic protocols or licence terms attached to content which acts as an easily identifiable Creative Commons label. The licences are used for things like websites, scholarship, music, film, photography, literature, and study materials, but note that they are not used for software.
The main legal concepts underpinning the development of Creative Commons licences are those of the public domain, the 'commons', open content, and intellectual property.
Under most copyright law, all creative works are automatically copyrighted. While many authors would support today's form of automatic protection, others might prefer a more flexible system whereby they could attribute some aspects of their work to the public domain, while retaining other rights.
Creative Commons advocates argue that in the long term this flexible licensing will lead to the creation of diverse and open creative communities that would encourage creativity and innovation, and as a consequence economic growth.
It is not clear at this stage who will avail themselves of the Creative Commons licences that allow free uses of their work, as there are currently no financial incentives for participating. In the long term, the Creative Commons project aims to create an 'intellectual property conservancy': an accumulated body of works of special public value that would support a culture of "sharing, public education, and creative interactivity".
One non-financial incentive that might be appealing to those contemplating a Creative Commons licence is publicity. Fitzgerald argues that sharing digital content may be appealing where, through putting up an early version of material, the quality of a subsequent commercialised version of the content would be increased.
Similarly, the use of non-commercial licences offers the possibility for a sort of 'no cost' marketing strategy, particularly considering the straightforwardness of internet marketing and relative ease of digital content distribution. Furthermore, it is seen by some as a good marketing strategy just to be associated with the commons, particularly in relation to perceptions within the open community.
It should be noted, however, that organisations such as the Media Entertainment and Arts Alliance (MEAA) argue that the assumption that all publicity is good publicity is not realistic or correct.
Types of Licences
The four main characteristics of creative commons licences are given the names 'Attribution', 'No Derivations', 'Non-commercial', and 'Share-Alike'.
The most basic Creative Commons licence is the Attribution licence which allows your work to be used for any purpose (including a commercial one) so long as you are credited as the author. The Attribution characteristic is also included in every other type of Creative Commons license.
Under a No-Derivations licence your work may be distributed or copied, but may not be used in a subsequent derivative work. Under a Non-Commercial licence a work is not allowed to be used for commercial purposes. And under a Share-Alike licence derivative works are permitted only if they are distributed under the same Share-Alike licence. These characteristics can also be combined, for example, Attribution-Non-Commercial which means the work can be used for any purpose as long as the author is credited, and the purpose is non-commercial.
The actual licences come in common language, legal language, or digital code language (metadata), which can be attached to creative works making it easier for search engines to monitor licences.
A number of technological developments have contributed to the evolution and uptake of the Creative Commons project. Recently, mainstream Internet search engines have developed filters that allow users to specifically search for content subject to Creative Commons licences. Both Yahoo and Google now allow search results to be returned according to 'Usage Rights'. For Creative Commons advocates, this is evidence of the increasing importance of the commons as to infrastructure of the internet and illustrates the legitimisation of creative commons licences in the gathering of mainstream content.
'Porting', or the implementation of creative commons projects within different international jurisdictions, has further increased accessibility to Creative Commons licences. The Australian project, for example, aims to tailor the licences to pick up subtle but important differences in copyright terminology, consumer law, and moral rights. Investment in this aspect of the commons signals the international demand for Creative Commons licences.
Other recent developments include the BBC's development of Creative Commons licensing models to allow people to access clips of factual programming for non-commercial purposes. Similarly, online music services such as Soundclick have started to allow creators to attach Creative Commons licences to material uploaded to its website.
Arguments against the Creative Commons
Various objections and criticisms have been made in relation to Creative Commons.
One of the greatest opponents in Australia of the Creative Commons in a film context has been MEAA. MEAA's main criticism of the Creative Commons licences has been that they potentially allow for the modification, adaptation, and reuse of films without requiring performers to be paid or consulted. MEAA argue that performers are entitled to seek additional payments for works they have performed in if, down the track, they are used in a way not agreed upon at the time of participation.
MEAA has also been critical of Creative Commons licences that have not required credit to be given to performers in works. In Australia, creators have moral rights in their work which include the right to be attributed and a right of integrity in their work. A creator's moral rights can only be infringed with their consent or if it is reasonable in the circumstances. At the moment there is no moral rights protection for performers, but this particular criticism may be diffused once performers moral rights are enshrined in Australian legislation, as is require under the Free Trade Agreement.
MEAA has also argued that later unforeseen uses of artistic works featuring a performer may impact negatively on that performer's subsequent ability to earn income. For example, if a work in which a performer were featured was subsequently used in an advertisement without the performer's approval, the association between the performer and the product could prevent acting roles or advertisement contracts being offered in the future. Similarly, the possibility of manipulating a performance with the result that it would portray the performer in a negative light would also affect the performer's ability to earn income.
It was for these reasons that MEAA opposed the production of a remixable film in 2005. Sanctuary, directed by Michela Ledwidge, offered viewers the ability to copy and edit the film digitally. Despite having the support of the Australian Film Commission as well as other organisations, MEAA national director Simon Whipp explained that MEAA objected to the possibility of portions of the film being used in ways that would diminish performers' ability to generate income, and was concerned that performances might be used to ridicule performers. It is worth noting that Mr Whipp did acknowledge that within a stronger moral rights legislative framework this would be less of a concern.
A more general criticism by MEAA is that Creative Commons licences will not work in their current form because of their financial impracticability. It is argued that Creative Commons licences remove certainty as to financial returns, which would in turn scare off most investors. For this reason, MEAA does not think that Creative Commons licences are likely to be used in mainstream productions. However, this does not detract from the fact that the licences may nevertheless be useful in the context of low or no-budget productions.
Literary and Musical Perspectives
While suggesting that Creative Commons licences are the "ideal scheme for the genuinely altruistic writer", critics have drawn attention to the problems that creators wishing to use them may face.
An important example is that if a writer gives their work a non-commercial licence, but subsequently has commercial interest from a publisher it is unlikely that a publisher will invest in the work considering that it is available for free (even if just for non-commercial uses).
Add to this the fact that Creative Commons licences are irrevocable for the term of copyright and it seems unlikely that a non-commercial Creative Commons licence would be a practicable way for creators to publicise their works with the intention of one day making money from them.
For similar reasons, in a musical context creative commons licences can be problematic. Being irrevocable, record companies may be reluctant to enter into future recording or publishing deals. Difficulties may also arise relating to collecting societies with which musicians enter licensing arrangements, as it may be that a musician would not be able to enter into a Creative Commons licence in respect of the already licensed works. For these reasons, licences may only really be useful to 'big name' artists who can afford to donate their works to the public for free, and for hobbyists who do not plan to make any money from their work.
A possible solution to this problem might be to revise licences so that they are revocable. However, a further difficulty would arise if this were allowed: once a work is given a Creative Commons licence it may be widely distributed over a short period of time across various jurisdictions, and under some licences derivative works might be made. This is particularly the case for digital works. If this happened whilst a work were under a Creative Commons licence, and that licence were subsequently revoked, it would be near impossible to enforce the terms of a new licence (not to mention somewhat unfair to subsequent creators).
In a musical context there are other options for those wishing to obtain publicity and distribution for their works without placing them under a Creative Commons licence. Methods like secure streaming or webcasts still allow users to hear music that is under standard copyright without allowing them to store an actual copy of it on their computer. This method may be a convenient and similarly accessible alternative to a Creative Commons licence.
Inadequacies in Definitions
In the current form of the Creative Commons' licences a vague definition of "non-commercial use" is used and potentially leaves works open to exploitation and misuse. MEAA argue that the current definition of 'commercial' only prohibits uses that are "primarily for commercial advantage", while possibly permitting uses where commercial gains are less direct.
Creative Common advocates suggest that these problems can be overcome through simple drafting clarifications in licence wording, as well as more general education for creators regarding the use of Creative Commons licences. Being a relatively recent development, it may be argued that 'teething problems' such as these are reasonable and should not discourage the development and acceptance of the project. Furthermore, it is suggested that this risk of possible exploitation may be outweighed for some creators by the positive benefits of being part of an open content community and contributing to the creative commons.
http://creativecommons.org is the project's official international site.
http://www.creativecommons.org.au is the Australian site.
http://www.lessig.org/blog is the personal blog of Creative Commons pioneer Lawrence Lessig.
http://www.flickr.com/creativecommons is a collection of photos that have been given various Creative Commons licenses.
http://www.commoncontent.org is a catalogue of websites with different types of Creative Commons licensed content.
 Fitzgerald, B., and Oi, I.; “The Australian Creative Commons Project”; Copyright Reporter; Vol 22 No 4; January 2005, at p145
 Fitzgerald(2005) at p138
 Fitzgerald(2005) p140
 Media Entertainment and Arts Alliance; 'Performers’ Right to Copyright'; Alliance Online; Tuesday 22 November 2005; from http://www.alliance.org.au/content/view/113/50/1/3/
 Faulder, S.; “What Creative Commons Really Means for Writers”; Music Copyright Matters;