(RE)Introducing Creative Commons

So you're a creator of music/graphic designs/films and you want to get your body of work 'out there'. You've heard about this licensing system called the Creative Commons that doesn't involve you seeing — or, more importantly, paying — a lawyer. What do you need to know before committing to using a Creative Commons licence?

What is Creative Commons? — A little background

Creative Commons, which was launched in the United States in 2001, is a non-profit organisation which provides a set of free, generic licences which creators of intellectual property can use to digitally distribute their work to the public. The CC movement is 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 to freely 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.

There is little doubt that the CC licensing system has had, and will continue to have, a significant impact on the way we create, distribute and share intellectual property. While the task of estimating the number of licences is a huge and inexact process, data supplied by the CC organisation puts the minimum number of works licensed under the CC system at 350 million, as at the end of 2009.1

The CC movement has established itself in over 50 countries and is developing CC licences for more jurisdictions.2 In Australia, the licences are managed by Creative Commons Australia, which is hosted at the Queensland University of Technology. The CC movement has also made important headway in Australia's public sector, with a growing number of government bodies — including the Australian Parliament, the Bureau of Statistics and the Bureau of Meteorology — switching to a CC system to license some or all of their materials. The Commonwealth Attorney-General's Office has also recently recommended that all government agencies should consider adopting the CC system to publish their public sector information.3

What types of CC licences are there?

There are currently six Australian licences (version 3.0). The following is a summary of what rights are licensed:

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 to do, in all media and formats:

  • copy and reproduce the work (including by downloading and printing)
  • perform the work
  • distribute and communicate the work (such as e-mailing or uploading it to the licensee's blog)

1. Attribution (CC BY)

  • can be for commercial use
  • can adapt and make derivative work
  • can licence to others, as long as the original creator is credited

2. Attribution — Share Alike (CC BY-SA)

  • non-commercial use only
  • can adapt and make derivative work
  • the licensee must license his or her new derivative work under the same terms as the original licence

3. Attribution — No Derivative Works (CC BY-ND)

  • can be for commercial use
  • cannot adapt and make derivative work
  • can distribute a verbatim copy of the work only and must not make a derivative work
  • can license to others as long as the original creator is credited

4. Attribution — Non-commercial (CC BY-NC)

  • non-commercial use only
  • can adapt and make derivative work
  • can license to others, as long as the original creator is credited

5. Attribution — Non-commercial Share Alike (CC BY-NC-SA)

  • non-commercial use only
  • can adapt and make derivative work
  • the licensee must license his or her new derivative work under the same terms as the original licence

6. Attribution — Non-commercial — No Derivatives (CC BY-NC-ND)

  • non-commercial use only
  • cannot adapt and make derivative work
  • can distribute a verbatim copy of the work only
  • can license to others as long as the original creator is credited

So what do I need to think about?

You may think that because the CC system is so widely used that it is foolproof. In reality, however, it is still undergoing continuous development and the CC movement, particularly in Australia, has dedicated teams working on the research and versioning process.

Although it is arguably a matter of good public policy for government departments and the education sector to adopt CC licences, you need to carefully consider whether it is right for you and your particular needs and aspirations as an artist.
CC licences are irrevocable — are you sure they are right for you?

CC licences are irrevocable and, at the moment, 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. You can never change your mind.

You can stop having your work available to the public under a CC licence, but 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. Needless to say, to make a decision that lasts forever isn't one you should make lightly. The truth is, 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.4

Ability to exploit your work exclusively

If you want to be able to exclusively exploit your work CC licences are not for you, 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?

In addition, attaching a CC licence to your work will likely 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.5

Chain of title – 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, say, the Attribution licence, 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', it gets a little cloudy as to who the 'original author' is and all the relevant parties that should be attributed.

In addition, 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.6

It has been suggested that the lack of much judicial consideration on CC licences is a sign that they are effective and valid. However, it is equally arguable that licensors don't always know who is using their work and, more importantly, how they are using it to enable them to commence proceedings to enforce the licence. Remember also that 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 unless you obtain 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.

Imagine if you came across a great composition under an Attribution licence, and you decided to turn it into a song for your own album. Then, one day, you receive a letter from the true owner of the copyright in the song. Although you are 'innocent' (in the sense that you didn't know it was someone else's work), and that the CC licensor did not have the legal capacity to grant the licence, your intention does not affect a finding of copyright infringement — it was still an exercise of an exclusive right by you, without the copyright owner's consent. So even though your liability for damages in these circumstances is likely to be very limited, because you were an innocent infringer, you could still be restrained from releasing your own version of the song.

What exactly does 'non-commercial' mean?

This is one of the more contentious aspects of CC licences, and one even CC itself acknowledges as something in need of fine-tuning. 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. One of the explanatory sheets provided by CC Australia states that, in relation to what 'non-commercial' means "…film festivals are all okay, but advertising and for-profit uses are not." Imagine some footage you 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. And although the filmmaker did not directly derive any money from using your footage, his production company did attract investors as a result of the exposure from the film festival. 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). 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 – who knows?

Final words

By its nature, the CC licensing system sits somewhat uncomfortably with the copyright framework which, like it or not, 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.7 It needs to be recognised that the CC licensing system is an alternative to conventional copyright licences, but it is not meant to be a replacement (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 else you're simply satisfied in knowing that your work is being enjoyed or used in some shape or form.8 In any case, you should read the full licence terms 'Legal Code' before making any decisions. And 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.

Jackie Emery is a Sydney media and film lawyer and volunteer for Arts Law


1. See the Creative Commons’ ‘Before Licensing’ page at

2. For more on the relationship between Creative Commons and collection agencies, see article by APRA/AMCOS at

3. A free tool has been developed to help track online use of CC works. See

4. See the latest changes incorporated into Version 3.0

5. See Creative Commons Australia’s ‘Case Studies’ at



8. See

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