Creative Commons and the Law: Redefining Old Rules of Copyright

Creative Commons is an organization that allows people to issue creative works under a license that allows more flexibility than the default “all rights reserved” of copyright law.

Recently, John Dvorak wrote a column asking what good Creative Commons serves. I got to talking to my fellow columnist Molly Wood, and she said she didn't really understand what the licenses were good for, either.

Meanwhile, 53 million works on the Internet link back to a Creative Commons license. A lot of people are buying into the concept. But is it dangerous? Is it revolutionary? Is it pointless? Here's an attempt to deal with what this insanely popular license is and whether it's good for anything.

How Creative Commons works
Here's the concept of a Creative Commons license, as I understand it. Every creative work receives copyright protection automatically the moment you fix the work by putting pen to paper, hitting save, or pressing record. This protection reserves all rights to the work's creator. Nobody can use that work without express written permission except where there is legally determined fair use. (We'll get to what constitutes fair use in a minute.)

Creative Commons provides a somewhat standardized set of licenses that a creator of copyrighted works can use to give extra rights to people. This is similar to the GPL, used for software. (What was hard for me to wrap my head around in writing this column is that Creative Commons is actually more about protecting the audience you're hoping will use your work than it is about protecting you. You still hold on to whatever rights you reserve, but you're abandoning some of those rights on purpose.)

Copyright law protects any creative work you create whether you want it to or not. Nobody can legally use your work beyond fair use without a license. Creative Commons serves as a license that people who want their work to be shared can issue. Don't want your work to be shared? No problem. Don't use a Creative Commons license.

A Creative Commons license defines how people can use the work beyond the dictates of fair use, but without their having to negotiate a unique license with the copyright holder. There are four conditions that you can choose to apply to a Creative Commons license:

  • Attribution: You can use the work but must give credit. This applies in all Creative Commons licenses.
  • Noncommercial: You can use the work only if you don't make any money from it.
  • No derivative works: You can use the work only without altering or transforming it beyond the provisions of fair use.
  • Share alike: You can transform a work as long as you make the resulting work available on the same terms as the original work.

You can use these terms in 6 different combinations.

How is this different from fair use?
Fair use already allows people to use my work, in a limited way. It was enshrined into law in 1976 as Section 107 of the copyright act.

According to Stanford University's Web site on fair use, in its most general sense, fair use of a copyrighted work is “any copying of copyrighted material done for a limited and ‘transformative' purpose such as to comment upon, criticize, or parody a copyrighted work.”

The law provides for a four-factor test to determine fair use. The test involves the nature of the use, the amount of the original work used, the nature of the resulting or derivative work, and the purpose of the use. The court must consider all four factors. (It's pretty much essential to consult a lawyer if you want to be sure what you're doing is covered by fair use.)

Sometimes content creators want to distribute a work and have people feel like they can do what they want with it, without fear of being sued or having to consult a lawyer. Nobody's making anyone do this, but some people have found it quite beneficial to allow this.

One use of Creative Commons is to allow the free distribution of your work for noncommercial purposes. Under copyright law, nobody is allowed to copy your work without your permission. A Creative Commons license allows you to keep hold of the copyright and still make money on the work, while allowing new technologies and rabid fans to spread the word widely. Sure, you could tell people to ignore your copyright, but a license gives them the assurance that you mean it.

Think of a band with an MP3. Under copyright law, if they allow others to give away the MP3 without explicit asked-for permission, someone in the band could subsequently sue the people distributing it. If they distribute the MP3 under a Creative Commons license, then people can freely share it without having to ask and without the fear of being sued. The free distribution could serve as marketing for a full CD. A lot of bands have done just that with varying effects. Cory Doctorow uses this to great effect with his novels. He gives away the text but not the print edition. And he says he's making money.

The band Wilco released their album Yankee Hotel Fox Trot under a license similar to Creative Commons. Their original record label refused to release the album, but after it became popular on the Internet as a free download, a different record label (which was, ironically, part of the same parent company as Wilco's original record label) released it as an ordinary CD, and it became one of Wilco's best-selling albums.

Does Creative Commons somehow threaten fair use?
Some have the idea that Creative Commons somehow threatens the existence of fair use. A Creative Commons license has no effect on the fair use of a work. The text of a Creative Commons license expressly states that copyright law and any other applicable law, such as fair use, still apply.

We already have precedents for fair use, and we need to work to protect them. But Creative Commons allows others to use your work without the risk, cost, or limitations of fair use law. Lawrence Lessig, chairman of Creative Commons, believes the use of Creative Commons license will actually raise awareness and help the fight for fairer copyright and fair use laws.

Does Creative Commons make the law more complex?
Some critics fear Creative Commons could make copyright law more complex. Creative Commons isn't a law nor does it add or subtract anything from the law. It's simply a license based on copyright law. It doesn't change the law any more or less than any other license, such as a EULA. It can spur changes in the law, but it doesn't effect changes just by existing. Most supporters believe these changes will improve copyright law.

If it's public domain, why do I need a license?
I've also seen complaints about the Public Domain dedication from Creative Commons. The complainants say that if something is in the public domain, it doesn't need a license. That's true. But if the creators of a piece of work want to put it in the public domain without waiting the 70 years after their own death for that to happen, they can use Creative Commons to give the public all the rights of public domain right away. It's just expediency. Most critics probably don't want to do this, but the option's there.

The harm of Creative Commons
Some people apply the Creative Commons license to their Web sites when they have no need to. If you don't understand the implications of the license, take a minute and study it some more. People around the world may be able to reprint your thoughts or ideas in many forms if you use this license. I use the license and am OK with the implications. But don't just slap it on your blog without understanding what it means.

Why would anyone give away their work?
Some complain that if you issue something under a Creative Commons license, you can't take away that license. And that's right. You can never revoke the terms of it. That's the point.

The real argument here is over why you would want to give away your work at all, even if you do hold on to your rights. Some people don't understand the benefits of giving something away without immediate return, and with the added consequence of giving up some of your own rights.

I mentioned two examples earlier, Wilco and author Cory Doctorow. Even Professor Lessig himself has issued copies of books online for free under Creative Commons and sold the books quite well. Another use is in schools. Many academics welcome Creative Commons licenses. Under normal copyright law, if a professor wants to include an article or chapter of a book in a course packet of copies, that professor has to get permission from the author. This can be burdensome for a course packet with 10, 20, or more individual articles. Works issued under Creative Commons license can ease that burden.

But it's a gamble, and it's not for everyone. Some people are making good use of that gamble. Some are even making money. Some just get marginally famous. Some just want to contribute to the world. That's the corny part that a lot of people don't trust or believe. And they don't have to. But it doesn't make Creative Commons dangerous or useless.

[via tom merritt]