The mark expands their ongoing efforts in dealing with works without copyright. Previously, they introduced CC0, a public domain dedication system that let users waive rights to their own work (as far as possible under the law).

Users who are interested in taking advantage of the work can fill out the form to create the mark. Unlike regular Creative Commons licenses, the work is not licensed under the terms but rather is identified as being in the public domain. This means that the Mark contains information about both the person who created the work and the person who identified it as being in the public domain.

Here’s an example of the mark (Note: Obviously, this work is not in the public domain, but rather, is under the usual CC license, as such, I stripped the meta information and left in the visual content, slightly reformatted.):

This work (This is a Test, by Some Really Dead Person), identified by Jonathan Bailey, is free of known copyright restrictions.

The mark does have a few limitations. For one it is not for works that are in the public domain in some jurisdictions but not others. Also, the mark is not for works where the author placed the work into the public domain by the rightsholder. Rather, this mark is solely for works that have lapsed into the public domain naturally, meaning it is almost exclusively for very old works.

Despite the limitations, the mark does have its first major user, Europeana, Europe’s public digital library/archive, which has adopted it for works in its archive that it has affirmed to be in the public domain, which will include millions of works in its database.

The next phase for the Creative Commons Organization on the public domain front is creating means to mark works as being in the public domain in certain jurisdictions but not others, which would enable users to mark a wider variety of content.

I make no secret that I am a fan of Creative Commons. I use it on this site, as well as other sites I’ve created, and write routinely about it here on Plagiarism Today.

Though the system has it’s flaws it, overall, is a great idea that is well-executed.

But there is a pretty severe limitation to the system, it requires the copyright holder to take action first. If the copyright holder does not proactively license his or her work under a CC license, it is locked away and there is precious little help in getting the potential user of the work permission, even if the owner might be willing.

This is why there is a need for a CC system that starts with the user and works backwards. This could be a boon not just for the sharing and reuse of copyrighted works, but also for the Creative Commons Organization itself.

Though this is just an idea, I want to lay out how such a system might work and what the benefits/limitations might be to get the conversation rolling.

How It Might Work

The problem is pretty simple. If a potential user finds a work they want to ask permission to use and it isn’t granted universally, as through a CC license, they have to ask permission. However, few people are comfortable doing that and even fewer know how to do it properly, with full legalese.

A reverse CC system could fix that by having the user pick out the license that they need/want and then emailing it in the form of a permission request to the rightsholder via email. All the user would have to do is pick the rights they need, enter some information about the work, and then send it. This could also be used in situations where the copyright holder has a CC license but the user needs more permissions for a one-time use.

Ideally, this permission request would come in a similar format to current CC licenses, with first an easy-to-understand version of the terms and then a legalese one to satisfy the lawyers. Ideally, such a request would be usable both by smaller copyright holders, who might be unfamiliar with CC licenses and big corporations who have much more standardized permissions systems.

Such a system could do a lot of good for the copyright climate on the Web and it doesn’t take much imagination to see its potential.

Why It’s Important

While there are stock letters that can achieve much of this effect, they are not intuitive and they can be very intimidating. The easier this process is made, the more likely people will ask permission and the clearer things are to the copyright holder, the more likely they will say “Yes”.

Also, since this license would be CC-branded, it would be a good chance to introduce the CC brand and licenses to people who don’t use them. It might encourage the spread of CC licenses or at least awareness of the name.

Most importantly though, it would give users the tools they need to quickly, easily and effectively ask for permission to use work. This could drastically reduce disputes about who gave permission for what and the nature of the use. By getting these requests into a more structured format, everyone can understand them better making them more clear and forcing people to spend less time on them.

It’s a win-win for both rightsholders and potential users alike.

Some Limitations

A CC-style system for asking permission would not correct the biggest problem with rights clearance, the time required to do so.

Most Creative Commons searches for a work are done for some immediate need such as an image for a written post or a clip for a video in production. Usually, in these cases, there are many similar works that can perform the task and the key is to find one that is properly licensed. A good example is looking for a CC-licensed image of a sunset for an article.

This method would only be useful in situations where a very specific work was needed and waiting was possible. If there is no specific need, there is likely enough CC-licensed or otherwise available works that you can find what you need quickly. If you can’t wait, then the project is probably dead regardless.

Such a system would also face strong issues in terms of internationalization and problems. Though the CC Organization managed to largely resolve the internationalization issues with their main product, it might be too heavy of a load to go through it again, especially for something likely to be rarely used.

Furthermore, this is heavily prone to user mistakes. It requires the user to know what work they needs, be able to find the right copyright agent and then contact them. While this is a simple task for blog posts and Flickr images, it isn’t easy for music and movies. In fact, there are many people who are paid very good money to figure out just those issues.

Despite these limitations, there are still many situations where such a permissions system would be useful, especially for students and others who are assembling larger projects over a period of time. Best of all though, it would be a way to introduce copyright holders who do not use CC licenses to the concept and bring them, even if just with one or two cases, into the fold of sharing their content.

Bottom Line

Though there would be flaws and limitations to this system, it would also fill an important gap within the current licensing system and make it possible for users to effectively initiate the licensing process.

Though Creative Commons was right to start with the system it did as it is both easier to implement and more likely to be widely used, there is still a need and an audience that is unserved by this licensing revolution that could be an opportunity for all involved.

As great as standardized licensing is, it is a one-way street without standardized permission requests as well. It’s time to empower the user too and help them open up new doors for themselves and rightsholders.

Creative Commons Licenses, despite going to great pains to be clear and easily understood, are routinely confused and misinterpreted.

In my experience, with both this site and other works of mine licensed under various Creative Commons terms, a very small percentage of all uses actually fully comply with the license, less than about 5%.

Though most of the uses do try to comply with the spirit of the license, which is why I don’t object to these uses, complying with a Creative Commons License, contrary to popular belief, is not merely a matter of giving a byline and being done. Meeting the terms of the license involves a little bit more effort, though not a significant amount.

So, if you plan on using Creative Commons-licensed works, here is a very quick primer on what you need to do to make sure that your use complies with the license fully and avoids any possible argument.

The Elements

When looking at the main 6 Creative Commons licenses (Note: I’m not delving into the lesser-known ones such as CC0.) There are five different elements to worry about.

Note however that not all licenses have every element. You have to read the license deed itself to find out whether some of these restrictions apply.

Attribution

All of the major Creative Commons Licenses require attribution. However, applying it is not as simple as some think.

First, the author technically gets first choice in how attribution should be applied. The deed itself says “You must attribute the work in the manner specified by the author or licensor.” so, if the author has a specific way they want to be attributed, that’s the way to go.

However, most authors don’t specify a particular way. As such, the full license says that such attribution should include the following:

1. The name of the author and/or licensor
2. The title of the work (if supplied)
3. As far as practical, the URL that is associated with the work (meaning, in most Web uses, a link to the source)

The license allows for you to do this as appropriate for your use of the work. So, for example a Web use would likely require a search-engine friendly link where a printed use would require a footnote. The guidance is admittedly vague here, especially for non-Web uses, but if you act in good faith and give attribution as soundly as possible, meeting the requirements above, you should be ok.

Also, it is important to note that your attribution should not hint at any kind of endorsement from the licensor. That too would be a violation of the terms.

A Link to the License

With every copy of the work, you are also required to either provide a copy of the license it self or a link (URI) to it. This is, without a doubt, the most forgotten element of complying with the license.

The purpose for this is to indicate the terms under which you are using the work, both to others who see your copies and to the original licensor. It “closes the loop” of the license.

Failure to do this is a failure to complete the terms of the CC license, it is that simple.

Commercial Use

Some licenses disallow commercial use. If that is the case, you need to make sure that your use complies with that element of the license.

The full Creative Commons licenses defines a commercial use as that, in “any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

Obviously that leaves a fair amount of gray area, especially on the Web. This is part of the reason why the Creative Commons Organization recently comissioned a study on commercial use.

The good news from the study was that, while there was gray area, users of CC works were more likely to define a use as commercial than those who were granting the license. As such, most likely, if a user thinks that a use is non-commercial, the licensor will agree. This is part of the reason why disputes over this element have been extremely rare.

That being said, it’s best to be careful. If you feel your use in any way meets the definition above, you should probably avoid using the work if the license requires non-commercial use. If you have any questions about a specific scenario, check the full study and see if it was one of the ones polled or, even better, ask the licensor directly.

Derivative Work

When dealing with vanilla copyright law, derivative works is a tremendous mess. Defining the line between an original work and a derivative one is a hair-pulling mess. Fortunately though, there is no such issue with CC licenses.

The full CC license defines a derivative work as “a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement… or any other form in which the Work may be recast, transformed, or adapted.”

In short, any time you modify CC licensed work to create another work, be it to translate it, rewrite it remix it, it is considered a derivative under the license and you need to make sure you have permission in order to do that.

However, you do not need this permission to copy and paste a work into your site as that is considered a “Collective Work”, similar to a periodical.

You are allowed to modify the work as far as is “technically necessary to exercise the rights in other media and formats”. This would include things such as converting a movie to another type to upload it to YouTube. But beyond those necessary changes, the work must remain intact and separate from other works.

Share Alike

Finally, many sites that do allow derivative works to be created add an additional stipulation, known as the share-alike requirement, that stipulates the new work be placed under the same terms.

In many ways, it is similar to the GPL and similar open-source licenses that allow free use of a work so long as new creations are licensed under the same terms. These licenses prevent reusers from making derivative works from a CC-licensed work and then locking the new creation away (at least the parts that can be separated from the original).

This only affects derivative uses of the work, not ones that keep the original completely intact and do not build upon it. It ensures that the new content that is added to the work is licensed the same as the original.

So, if you use a share-alike work in a derivative manner, you have to both complete the terms of the original license (attribution, link to license, etc.) but you also have to license the new work under the same terms. This makes compliance, essentially, a two-step process.

Other Issues

On top of the main compliance issues, there are a few other items that you probably need to be aware of.

1. No DRM Allowed: If you use a CC-licensed work, you are barred from placing any copy controls on it. This seems obvious as CC licenses are specifically about allowing copying, but you need to be aware of this if you use any copy control on your site.
2. No Other Rights Affected: Other rights that might be related to the work are not affected. A CC license, for example, is no substitute for a model release. Publicity, moral rights and other related rights are unaffected. This includes your fair use rights as well.
3. All Rights are Negotiable: Finally, a CC license is not set in stone. As long as you get the copyright holder’s permission, you can go beyond the terms of the license. If you want to make use of a work that goes beyond the license or may be questionable, ask.

Bottom Line

If you even glance at the full legalese version of the license, you can quickly see that it is not as simple as the deed seems to make it out to be. There are nuances and variables that the legalese version explains that the simple deed cannot adequately.

Though many of these issues won’t affect you, many seem to relate only to the making of records, it is important to be aware of them.

So, if you have a moment, read through the full legalese on any CC license. Though it is written for attorneys, it isn’t so jargon-filled as to be indecipherable to mere mortals.

Though this post should give you a good primer, it’s no substitute for your own research, especially if it only takes a few minutes to complete.

photo credit: Joi

Joi Ito, best known in copyright circles as the CEO of Creative Commons, has joined Picscout’s advisory board.

Ito, who is also the CEO of Neoteny, an Internet investment firm, and on the advisory board for Digital Garage as well as many other boards, is working with Picscout on their new Image IRC and Imagexchange tools, previously covered here.

The Image IRC is a database of fingerprinted images with their metadata (including licensing information) that is accessible via an API. ImageExchange is the end-user component for identifying images within that database and licensing them, currently used in the form of a Firefox extension (other updates, including an Internet Explorer extension, are reportedly in the works).

Ito brings with him a significant amount of clout to the project and a great deal of expertise. Though his role is vague at this time, there is little doubt that it is a major coup for Piscout as it tries to position itself as the go-to source for image detection and licensing assistance.

Ito’s Possible Role

As I said in my original article, two of the greatest problems I saw with the Image IRC/ImageExchange combination was the lack oif broad Creative Commons (and other licensing) support as well as the hurdle of reaching out to every day users. Ito has a great deal of experience with both of these areas and may be able to provide advice and support it both better integrating CC licensing with Picscout’s tools and educating the broader public about their purpose.

Ito’s involvement could be a great asset to the service as it works to both gain traction among visual artists and users. However, his impact may be felt further down the road as Picscout starts to integrate more and more CC-licensed images into the Image IRC and display CC-licensed images alongside stock ones.

It is worth noting that this does not indicate any formal partnership between Creative Commons and Picscout, as mentioned above, Ito works with many different organizations, nor will Ito be stepping down from his Creative Commons position, but there is little doubt that his knowledge and expertise can be of a lot of use in these areas.

Expanding Reach

In addition to bringing Ito onto their team, Picscout has been expanding the reach of their ImageExchange service, adding Dreamstime stock image library (over 7 million images) as well as Masterfile, Life, Alfo, Mauritius, Blend Images and Glow Images, creating a mix of microstock, royalty-free and rights-managed images.

ImageExchange has also integrated CC-licensed images through Flickr, though only non-commercial images at this time.

This is clearly a sign of momentum for Picscout and may be a sign of the role the Image IRC/ImageExchange solution will play.

Bottom Line

Though the news is good for Picscout, obviously it is still very early in the beta process and far too early to tell how successful its new products will be. Though these are clearly big steps in the right direction, it’s sill just speculation as to what will come of it all.

In the meantime though, I’m putting ImageExchange through some paces on my Windows computer and should have a report back to you later this week about its effectiveness and usability.

Until then though, this is clearly a company that visual artists of all stripes need to keep an eye on moving forward, especially considering both the existing orphan works problem and looking down the road to a potential bill on the subject.

The Creative Commons organization debuted a new report highlighting the attitudes and conceptions of “commercial use” on the Web.

The report, entitled “Defining Noncommercial” is the culmination of over a year of research by Netpop Research which included both surveys and focus groups to learn about the general public’s attitudes toward what “noncommercial” means.

The issue of the “noncommercial” license has been one of the major sticking points for many with Creative Commons.The exact definition of noncommercial has caused much confusion and debate leading many to feel uncertain about using NC content even for uses likely defined as noncommercial.

The study is an attempt to define what noncommercial means to people on the Web and find out what the de facto standards have become. On that front, the study gleaned some interesting lessons.

How the Study Was Performed

The bulk of the study was performed by a combination of focus groups and surveys sent to content creators, people who use CC licenses on their work, and users, people who take use content created by others for various purposes. The research team collected roughly 2000 completed surveys, half from creators, half from users and compiled the data.

This, coupled with background research, interviews and focus groups, made up the data provided in the survey. Below are some of the key findings.

Key Findings

Here are a few of the critical takeways from the report:

1. Creative Commons Definition is Holding Up: 87% of creators 85% of users said that the definition of commercial use contained within the CC license (“…any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation”) was either “essentially the same as” or “different from but still compatible with” as their own views.
2. Users Are More Conservative Than Creators Overall: Throughout the survey, users of CC content consistently ranked users as being “more commercial” than their creator counterparts, meaning that a user was more likely to see a use as commercial than a creator. This means that it is probably more common for uses to shy away from uses a creator would be comfortable with than to overstep bounds.
3. Users in Large Strongly Support Attribution, Remixers Less So: Only 3% of users said that attribution should never be required. However, among those who remix content the numbers were slightly different with 15% saying they either rarely or never attribute content and another 20% saying they only give it when it is requested or required. Only 39% of remixer said they “always” attribute content.
4. Still a Great Deal of Copyright Confusion: 45% of all users said that “none” of the works they used are copyrighted and another 32% said they were not sure. However, the younger the user was the more likely they were to believe the works were copyrighted.
5. Most Don’t Generate Revenue: 86% of users said that they never earned money off of the works they used, the same amount of creators that said they had never earned revenue. However, those who did earn money tended to take a more strict view about what is commercial use.
6. Advertising Largely the Same as Selling: Using a work along side of ads was routinely labeled commercial with roughly the same frequency as selling copies of the work, thus possibly answering one of the toughest questions with NC licenses.

There are many other interesting pieces of information in the study and it is worth taking a look at the full PDF (18 MB) and skimming through the results.

The question, however, is what does this report mean for Creative Commons and its those who use its licenses. That answer is less clear.

Implications

Legally speaking, this report likely won’t mean much. Not only have disputes over commercial use not been common with CC licenses, likely for reasons hinted at in the report, but there is a great deal of case law on the topic of commercial use and a the clause within the CC license that defines it, that it seems most people agree with.

However, even with the most clear cut cases (one way or another) there was at least some disagreement and dispute, this means that the possibility for a suit is always there and, though this report can help point to what the norms are on the Web, it isn’t a definitive guide on the topic either nor is it really mean to be.

More than likely, the most important direct use of this report is that it will be taken into consideration when the CC Organization drafts version 4.0 of its licenses, the process of which is expected to kick off sometime in 2010.

Bottom Line

The new Creative Commons study has provided some very interesting and powerful insight into the norms, attitudes and behaviors of those on the Web. Though it may not definitively answer some of the legal questions surrounding non-commercial licenses, understanding the existing norms is important to both avoiding legal trouble and to help the CC Organization craft licenses that can better and more clearly address the issue.

Though this study might not resolve anything by itself, this kind of understanding is the first step to bringing about productive change in the future. On that front, I have to applaud the CC Organization for taking time out, not only to seriously address the issues that have been raised about noncommercial licenses, but also to try and foster understanding of the current copyright climate on the Web.

The results are mixed and there is a lot of work to be done, especially in the area of education, but at least we have a better idea of where the weaknesses lie.

Chris Anderson is the editor for Wired Magazine, a prominent tech journalist and a long-time advocate of the “free” business model. His upcoming book, enttield “Free: The Future of a Radical Price” has been the talk of many in the tech sectors as it deals with the idea of giving content away for free and then earning a living through other means.

However, even before the book has been officially released, it has become mired in controversy. Waldo Jaquith of the Virginia Quarterly Review (VGR), a literary review journal associated with the University of Virginia, noticed similarities between some passages in Anderson’s book and other sources. After putting some passages through Google, he found over a dozen instances where it appears Anderson copied content from Wikipedia as well as other sources.

These allegations were furthered by Edward Champion on his site, who compared several more passages from other books and blog posts.

This has sparked a firestorm of controversy on both Twitter and the comments section of the VGR post.

Without actually looking at the work (I haven’t seen a copy of the book) or being able to do a formal plagiarism analysis, I can’t offer too much commentary, but I do want to briefly recap what has been said and what I think it means.

Both Sides

According to Jaquith, he performed a “cursory” search of the book after he, “checked by hand several dozen suspect passages in the whole of the 274-page book.” He repeatedly emphasizes that this is not an exhaustive search of the work as he did not have an electronic copy at his disposal.

Jaquith listed eight different examples where at least some text duplicated verbatim. The lengthiest case involved pages 41-42 in Anderson’s book, which appears to copy heavily from a Wikipedia entry about the origin of the expression “Free Lunch”. Both of the works cite an article in the New York Times about “Free Lunch” counters but there is copying that goes beyond that including several sentences that are copied verbatim and other passages that appear to be close paraphrases.

These accusations were furthered by Champion, who listed five more examples on his blog, each involving passages that appeared to have at least some level of copying.

In all of the cases, the amount of pure verbatim plagiarism is fairly small, however, in many cases the amount of editing and rewriting appeared to be very small, either changing a few words or removing passages for brevity.

Anderson, for his part, doesn’t deny having copied from the sources, but claims that he had intended to cite the sources involved. In a statement he released he said:

All those are my screwups after we decided not to run notes as planned, due to my inability to find a good citation format for web sources…

This all came about once we collapsed the notes into the copy. I had the original sources footnoted, but once we lost the footnotes at the 11th hour, I went through the document and redid all the attributions…

He went on to say that he “missed” some of the attributions, especially some of those from Wikipedia where there was no individual author to credit, and that he plans on publishing those notes online before the book is released.

In a separate statement, Anderson’s publisher, Hyperion, said the following:

We are completely satisfied with Chris Anderson’s response. It was an unfortunate mistake, and we are working with the author to correct these errors both in the electronic edition before it posts, and in all future editions of the book.

This, however, has not stopped the war of words taking place on various social news sites and in the comments of the original post. The debate has also caught the attention of the mainstream media, including mentions in The Guardian, The Baltimore Sun and the L.A. Times.

My Thoughts

Without having the work in front of me in an electronic format and only having these very limited samples, it is very hard for me to perform a thorough analysis. Given the fact that most of the plagiarism involved at least some rewriting, I would normally encourage both a thorough electronic analysis of the entire work and a close human one on suspect parts.

However, I can’t do that right now and all I have are the passages presented and Anderson’s side of the story. There is not enough here, by itself, to draw solid conclusions from, especially in the limited time I’ve had.

Indeed, Anderson’s story may have merit. If he’s able to produce the footnotes easily, it would indicate that he was keeping them and did, likely, intended them to be in the book (why keep footnotes if you aren’t planning on publishing them?).

But what I find curious is his claim that he and/or his publisher “decided not to run notes as planned, due to my inability to find a good citation format for web sources.”

This statement strikes me as odd for many reason. First, there is a well-established citation style for Web pages. Both MLA and APA styles have one. Wikipedia also provides links to each individual edit, making the argument about having to preserve the sources a difficult one. Of course, even without that there are plenty of on-demand caching services that could have helped.

Second, I don’t fully understand why Anderson or his publisher would decide to do away with the footnotes at the last minute. It’s unclear if this was a technical issue, a design choice or something other issue. Removing footnotes from a book and rewriting the body to include inline citations “at the 11th hour” is very unorthodox in my experience and it would seem to almost be an invitation for mistakes and problems.

Finally, and perhaps most worrisome, as I read through the amount of the copying in some of the sections and passages, there is far more verbatim copying and close paraphrasing than one would usually use with a simple footnote. Typically a footnote is designed more to cite the source of information, not a direct quote and Anderson’s mention of doing a “write-through” of some of the citations seems to be a very odd way to handle the problem.

In short, the attribution has to match the use and, in at least some of these instances, it doesn’t appear to me to be the case.

It is important to remember that this is not like the Maureen Dowd case where we are talking about one quote with omitted attribution, but about at least a dozen and, by Anderson’s own admission, there was a problem with the footnotes for the whole book that, clearly was not straightened out adequately.

There is no nice way to say this, at the very least this is very sloppy editing and research and, unfortunately, it paints a very negative picture of the book. Even though it doesn’t appear Anderson intended to plagiarize, his liberal copying and rewriting of other texts combined with the lack of thoroughness in attribution is, at best, extremely sloppy research.

Unfortunately, this issue severely undermines the message of his book, parts of which it seems like I was going to agree with.

Bottom Line

In the end, it doesn’t really matter whether Anderson’s copying truly rises to the level of malicious or even lazy plagiarism. The proper thing for the publisher to do would be to not release the book until these errors can be fixed. I recognize that it would probably mean destroying thousands of printed copies, but there is a very simple and serious problem with releasing it as is.

Wikipedia, operates under a Creative Commons BY-SA license, the same license as this site. The license not only has an attribution requirement, but the legal code requires the person using the content to “keep intact all copyright notices for the Work and provide, reasonable to the medium or means.”

One could very easily, and likely successfully, argue that posting the attribution on a Web site separate from the book does not complete the CC license as it is not “reasonable to the medium or means”. In short, if one is able to show that this unattributed copying goes beyond fair use, it could be a copyright liability.

Other books, including Kaavya Viswanathan’s were cancelled for less (in Anderson’s defense, Viswanathan’s book was a work of fiction, leading to a higher expectation of originality) and a person claiming to be an editor in the comments said that he has had to kill more than a few books for similar offenses.

It would be both prudent legally and much more respectful to the original creators for the book to be held back until these issues can be fixed and the book be thoroughly checked for other possible un-cited quotes.

Though looking at the evidence I have in front of me, I can not honestly tell if this was a case of malicious plagiarism, sloppy editing or a very bad mistake, but it is clear that there are issues with the citations in this book that need to be fixed and waiting to correct the electronic version or make edits to the future editions is not enough.

The bottom line is that, if we accept Anderson’s story at face value (and we have no evidence to make us doubt it), whoever made the decision to drop the footnotes at the last minute made a very serious error, one that almost invited this kind of problem. Without looking at the original citations, I can’t make any hard judgements about whether the citation was appropriate for copying, but if we assume that it was, the decision to change systems at the last minute was an unmitigated disaster.

I would love to do a thorough plagiarism analysis of the book and would gladly do so if I could be provided a suitable copy but, in lieu of that, I would encourage the publisher to perform one of their own. There are plenty of tools out there that can perform one cheaply and quickly. Doing so could save the publisher a great deal of headaches down the road.

Over the past few weeks, I’ve been writing a great deal about the importance of licensing your content. Last week I wrote a column about why you should always clearly license your work, no matter what terms you choose. I also announced my talk at WordCamp Dallas, which will be on getting free content for your site and will deal heavily with content licensing.

As a result of this, many people have been emailing me asking about how I feel they should license their content, in particular whether Creative Commons is right for them. However, sadly, some of these people I’ve had to dissuade from using it.

To give you an idea of where I am coming from, I am a huge supporter of Creative Commons and have licensed everything I have posted on my sites under one of their licenses since shortly after version 1.0 was launched in 2002. I recommend Creative Commons to almost everyone I meet and actively discourage people from creating their own licenses.

However, this doesn’t mean that CC is for everyone. Not everyone who posts their work online is a good candidate for CC nor should they use it. Not only can it hurt your livelihood, but using it incorrectly might also damage the Creative Commons cause by letting people walk away with an unwarranted negative impression of the licenses.

This is why, before putting the CC logo on your site and announcing your new terms, it is important to take a minute and ask yourself if it is really right for you.

The Debate Over Going “Green”

If you don’t operate a business on your site, licensing your content under a CC license probably is a “nothing to lose” situation, especially if you retain commercial interest in your work. However, if you do run a business or otherwise earn a living online, it is important to consider how your content being copied may help/hurt your bottom line.

In some cases, it may help a great deal. For example, with this site, my allowing of attributed copying of my articles have helped my writing here reach new audiences and, with it, my name and my consulting practices. However, if I sold the content on this site, for example, as an eBook, it might be very different as even non-commercial copying could take away from sales.

However, that isn’t always the case. There have been many books that have been released under a CC license, generating a large amount of free downloads, but still sold well in both hardcopy and Kindle formats. For example, all of Professor Lawrence Lessig‘s books are licensed under a CC license (save Remix, which is awaiting the launch of the CC versionThe book is available under a CC license here) and all have sold well.

The question becomes simple, will allowing copying of your work, in particular non-commercial copying as you can refuse to allow commercial use, help or hurt you?

I often tell people to think of this in terms of file sharing. If there were a file sharing network dedicated to your type of content and it correctly attributed all of your work, would you gain or lose money from your work being on it? This really hinges on what your bigger problem is: Obscurity or customer conversion.

As Cory Doctorow points out, for most creatives, obscurity is the greatest obstacle. However, one does not have to be very famous for customer conversion to become a problem too. For example, an artist that becomes popular in a circle that sells stickers small prints may run into trouble if they CC license their work as users that may previously have been customers can simply print their own of reasonable quality and do so legally.

Though this is a problem whether or not a work is CC licensed, some people will always do as they please regardless of the terms, adding that level of permission can encourage the behavior and, in some cases, lead to other, less desirable copying due to confusion about the license.

In short, it is clear that some people gain a great deal of benefit from using a CC license, in addition to the idea of supporting the larger commons, but it isn’t right for everyone. The harder part is trying to determine which category any one person falls into.

Asking the Right Questions

When debating whether to use a CC license, I typically ask people the following questions:

1. Personal Satisfaction: Would other people copying your content with attribution give you a sense of personal satisfaction or would you be upset that people were benefing from your work, even if just non-commercially, without you being involved?
2. Business Model: Does your business model rely heavily upon you selling copies that would likely be easily replaced by free distribution? For example, are you musician that makes the bulk of their revenue from song sales rather than live performances?
3. Content Type: Would free copies of your work replace paid ones trivially? With some content a free copy just isn’t the same as a paid one. PDFs don’t replace physical books, for example. On the other hand, free MP3s are the exact same as paid ones. Also, how easily is attribution affixed to your content? Would it likely be lost as it is copied?
4. Audience Type: Is your audience fairly tech-savvy and likely to understand what a CC license is an how to follow it? Would they likely misinterpret it? Will they take advantage of it?
5. Search Engine Benefit: How ciritical is the content in question to your search engine ranking? Would the incoming links help more than the duplicated content? Though it is a minor issue if the content is correctly attributed and linked, it is important to consider, especially if your site is new and doesn’t have a lot of search engine recognition.

No one of these questions can answer whether a CC license is right for you. You have to weigh all of the factors and decide if, overall, it is better to have one or not.

However, the good news is that CC is not an all-or-nothing proposition. You can license items separately so long as you make it extremely clear what items are and are not covered. This means that, if you think it might be a good move, you can test it on a few of your works to see how well it goes. You can also reserve all the rights to your work initially and, once enough time has passed, place it under a CC license.

But while experimenting with CC may be a good idea for many, if not most, there are a few times to definitely stay away from it. For example, placing marketing copy under a CC license is dangerous as it also affects your trademark rights and is something that is supposed to uniquely identify your business. Likewise, content made at the request of a client, but you hold the rights to, should never be CC licensed without the client’s permission. Allowing copying of work created on someone else’s dime is poor form

Bottom Line

Most bloggers and most content creators have little to lose and, quite possibly, a great deal to gain from using CC licenses. Despite that though, it is worth taking a few minutes to reflect on how it will affect you both personally and business-wise before putting the logo on your site. Doing so serves both yourself and the efforts of the CC organization.

My personal experience has been pretty tepid. I’ve seen a lot of people use my content in ways that mesh with my licenses and many people violate them. I’m unsure if that usage would change any if I had removed the license, but it always helped me show people where the line was drawn and, when someone crossed it, provide guidance for making things right.

Also, there have been a few people that have been very aggressive about using my content correctly and doing so liberally. They’ve been the primary drivers in getting my work into new hands and, for that, I am grateful.

But even though the overall benefits to me have been rather modest, CC licensing can help others do more with their own work. As such, it is worth carefully considering and weighing the advantages of using it.

After all, to a creator CC licensing isn’t just about contributing to the commons, though it is a big part, it is also about ensuring that one’s content works as hard for its creator as the creator did in making it.

This is contrary to what Mark Helprin has to say.

On the Web, many bloggers and other creators are comfortable with at least limited reuse of their work. Though fair use protects a lot of the actual copying that takes place, especially on blogs, many don’t mind if others go beyond that, so long as they receive credit and the use isn’t hurting their bottom line.

However, the majority of bloggers, photographers and other creators, at this time, do not provide clear content licensing terms. They instead either don’t think about the issue at all or just rely on Web conventions and common courtesy to function as a license.

Unfortunately though, not licensing your content is a poor move for many different reasons. Whether you want to use an “All Rights Reserved” license, a Creative Commons one or something else, it is important to express your licensing terms, both for your sake and for the better of the whole Web.

Simply put, not doing so hurts yourself, your visitors and, through proxy, the rest of the Web.

How it Helps You

The biggest problem with not licensing your work is that others, when they visit your site, are going to believe a variety of different things about what they can do with your content. Unfortunately, many of these beliefs will be very wrong. Some will think they can do with your content as they please, usually following the “no copyright symbol, no copyright” fallacy, others will think the opposite, that they can’t do anything with your work at all and prevent them from using your work in a way you would have likely approved.

Though it is true that others can ask permission to use your work, many will not think to, others will not want to and some may not be able to due to time constraints. Being clear and upfront is a better solution for everyone.

Also, a clear and proper license also gives you greater legal protection over your work. Without an actual license, the use of your content becomes governed by an implied license, which is open to interpretation and is determined by looking at your actions with the work. An actual license can mitigate the danger of an implied license, ensuring that your content is used exactly as you intended it.

In addition, depending on how the license is affixed to the work, it may be considered copyright management information (CMI), which adds another avenue for a lawsuit, should an infringement rise to that, and it can be especially useful when suing for infringements of works that were not registered at the time of the infringement.

In short, properly licensing your work, and ensuring that the license is affixed correctly, provides your readers with clear direction on how to use your content and gives you greater legal certainty as well as greater legal protection.

If you don’t license your work well, you are taking a gamble with your content that you may not be able to afford.

How it Helps the Web

Currently, on the Web, there are countless different strategies for how people want their content used. Some license their work to the public domain, or as near as they can get, others favor a strict “All Rights Reserved” approach. Right now, there is no “standard” Web license.

However, since most sites don’t provide an adequate license, users usually wind up creating their own rules, often based on misinformation. They develop standards for how they interact with other people’s content, regardless of what the creators want and, in many cases, what the law actually says. These standards turn into habits that, in turn, become common practice.

Since most copyright infringements on the Web go undetected and aren’t addressed, one can go quite a long ways before a copyright holder discovers what they are doing and moves to stop it. This can create a very ugly and very avoidable conflict that both makes the copyright holder look like an extremist and scare off others from using any work, even when they would have permission.

In short, no one wins with these types of copyright conflicts. The ideal default behavior for those looking for content should be to check the license first, but with such a small minority of the Web’s content licensed correctly, it is very difficult convince people to do that. Furthermore, with so many myths and misunderstandings about copyright floating around, conflicts are bound to happen.

In short, if we don’t want users to create habits that run counter to how we want our content to be used, we should express those terms clearly and enforce them professionally and reasonably. This, in turn, protects everyone. If everyone gets used to reading and following the licenses, there are fewer copyright conflicts, fewer accidental infringements and, most likely, more sharing.

However, to make that practical, a large percentage of content needs to be appropriately licensed. If we don’t, we have to realize that visitors will be coming to our sites with habits and notions that run counter to our own and, even if we do license our content, those licenses are more likely to be overlooked, ignored and missed simply because they are so rare and visitors don’t fully know what to look for.

Bottom Line

Though it may seem like Creative Commons is everywhere and as if every site has a copyright license, the simple truth is that most do not. Part of this is because many major content hosts, such as image sharing and social networking sites, don’t offer easy ways for users to license their work. Part of it though is sheer ignorance of the need or unwillingness to act.

The simple truth is that the vast majority of the work uploaded to the Web does not have any licensing terms attached to it, leaving others to guess at what the true intent of the copyright holder is. This, in turn, has created a lot of problems for the Web.

Personally, I’ve always been a big fan of Creative Commons licenses and have a great deal of respect for the work that they do. But whether you choose a CC license, a regular copyright license or something else different altogether, it is important to make your intentions clear and to do so in a way that is legally sound.

Failure to do so not only puts you and your work in legal risk, but also makes it more difficult for others to enforce their rights or to give them away. It is very difficult to build a positive copyright climate on the Web when everyone is confused about what the exact rules are.

No matter where on the spectrum between public domain and all rights reserved you sit, it is important to make yourself clear. It only takes a moment and, in terms of your copyright, may be the single most important step you take.

Gawker Media, owners of such blogs as Lifehacker, Gizmodo and Kotaku, has made the jump to Creative Commons, as indicated by their legal page and a post by Jeff Chandler on Performancing.

In short, all content on Gawker sites is now licensed under a Creative Commons by-nc license, making them available for any non-commercial use with attribution.

However, this move doesn’t come without some confusion and caveats. Though the Creative Commons License is displayed proudly on every site, the legal page points to some greater complexities.

Cause for Confusion

Though the license for Gawker Media content on their sites is fairly straightforward, there is a great deal of complexity and contradiction on matters of how the RSS feeds can be used.

First, there are two RSS feeds listed, truncated ones without ads and full ones that display advertising. Both, in the legal page, are displayed with a Creative Commons BY-ND license, which allows for them to be used without modification for any purpose so long as attribution is provided.

(Note: I sense that this might be an error as it is likely they intended to use a non-commercial license for the full feed as you see below.)

However, the legal page goes on to list specific requirements for using the RSS feeds, many of which theoretically contradict the Creative Commons Licenses applied to them.

The first conflict regards the full feed, which the additional terms ban from being republished on any site, under any conditions, instead, you can only use the excerpt feeds, though both are licensed under the same terms.

The second conflict centers around the inclusion of advertising. The terms set forth by Gawker says that “No content, including any advertisements or other promotional content, shall be added to the RSS feeds.” However, this statement is unclear as what it means by adding to the RSS feed and could be construed to eliminate commercial use of the feed, even though the CC license for the feeds does not have the “NC” element selected (as with the non-RSS content).

This conflict is going to add to the confusion of licensing Gawker content. However, it isn’t even the largest issue that comes with their current licensing scheme.

The Bigger Problem

All of this brings us to an even larger issue. With the RSS feeds and the site itself under different CC licenses, how is one to know under what rules to use the content? Especially considering that neither license, at this time, is displayed on the feeds themselves (the ones I checked).

Clearly, the goal of the differing licenses is to treat scrapers different than users visiting the site, but what if a human copies and pastes from the RSS feed? Does the main content license apply or the RSS one? This could have drastic implications if he’s copying the content onto a commercial blog or site.

Though the goal of CC licensing is to simplify content licensing and make it understandable and approachable for laypeople, Gawker’s system has the opposite effect.

Right now what they have is two sets of CC licenses plus a lengthy set of special requirements (though that is allowed under the CC license as it spells out the attribution/no-derivatives elements for Gawker), some of which appear to contradict the CC licenses they offered. Gawker would have made things much more simple by just crafting a well-written copyright license and posting it clearly, which appears to be what they were doing before.

It seems to be a rare case where introducing CC into a licensing mix may have actually made things worse for those seeking to use their content.

Fixing the Problem

What all of this illustrates is that, when it comes to licensing your content, there needs to be one unified license. Whether it is “All Rights Reserved”, A Creative Commons one (as on this site) or one crafted just for your content, it is important that your terms be unified and clear.

If you have multiple licenses for the same content, even for different delivery methods, you risk causing confusion and problems.

In Gawker’s case, it would be easier if they simply offered a unified CC license that was more restrictive (such as the BY-NC-ND one) and offered exceptions for specific cases (such as screenshots and the excerpt feed). It is much easier to have one set of terms and then add exceptions than to provide completely different terms for different formats.

At the end of the day, your RSS feed has the same content, for the most part, as your site. Licensing it two different ways may be legal, but it is anything but easy to understand.

As it sits right now, I am less comfortable using Gawker content now than I was before the move. I’m hoping that much of this is just an honest mistake and will be fixed.

Otherwise, those that wish to use Gawker’s content legally may have some headaches and complicated issues to sort through.

The CC0 (or CC Zero) tool, which has been in the works since December 2007, was recently quietly released to the public in the format of a full version 1.0.

CC0 is not so much a license as it is a waiver. It is an attempt by the Creative Commons organization to improve upon its public domain dedication system by making it both more international-focused and rectify many of the challenges and problems that come up when trying to simply place a work on the public domain.

The idea is that, rather than licensing your work with certain terms and restrictions, you are instead waiving as many of your rights as possible, including all related rights (including moral rights). Though it isn’t the same as placing a work in the public domain, it would, theoretically, have much the same effect.

The question is how much will the license be used and whether Webmasters, many of which are already wary of the terms CC licenses place on their work, will be willing to waive all of their copyright interest.

How it Works

Obtaining a CC0 waiver for your site is much the same as getting a regular CC license. You visit the CC0 page, input the information for the work you want to license (Note: This is optional but, as with CC licenses, the data you put in is embedded in the license itself).

The one element that is different is that the CC0 waiver does have an active “clickwrap” element that requires the user to agree to both waive their copyright interest and that they have read the terms of the license and understand it. This is, assumedly, to ensure that there are no misunderstandings with users and that no one who doesn’t intend to waive their rights uses this system. It also, likely, helps with enforceability as the person waiving their rights has electronically “signed” a contract indicating as such.

However, even after that, the process then again does one last check to ensure that the user is certain they wish to waive their rights and cautions artists that depend on copyright for their income against using the service.

Once you’ve completed that, you are then presented with a familiar set of HTML and button options for marking your work. You can then take that code, paste it into your site or otherwise affix it to your work. Otherwise, the waiver has not been completed as the CC0 licensing procedure is NOT a registration process and nothing is stored by the Creative Commons Organization.

The most common button will look like the one to the left (or above in your RSS reader). Please note though that this is meant to be used as a sample of the CC0 button and is not designed to indicate that this article or anything on this site is licensed under a CC0 license. All content on PT is underneath the BY-SA license.

The Advantages of and Problems with CC0

Though CC0 isn’t designed to replace the public domain dedication service, it is designed to improve upon it. The CC0 system works better internationally, is likely more legally valid (since one can not dedicate their works into the public domain in many countries and there are questions about doing so in the U.S.) and, if the icon and meaning becomes recognizable enough, more clear.

The problem is that there hasn’t exactly been a rush to use the public domain dedication system and it hasn’t been the legal issues that has kept others at bay. Those that have used CC licenses have favored other licenses overwhelmingly and those that have wished to license their work in the public domain have usually just done so without the aid of CC.

Though the CC0 waiver system is a potentially useful tool for those that want to waive their rights and certainly preferable in most cases to either a CC Public Domain Dedication or a similar dedication of their own, it seems unlikely that the “license” will catch on in a big way, that is, barring a major shift in the attitudes of writers and artists.

It seems that, for most who want to give up most of their rights, the CC-BY license is more than open enough.

Conclusions

There’s little doubt that the CC0 waiver system is a major step forward for the Creative Commons Organization in terms of their public domain efforts. Even though it isn’t a true public domain dedication, it only waives the rights as far as they can be waived (Note: Moral rights, in many countries, can not be outright waived), it opens up what is likely as close to a public domain option as practical under the current legal climate.

Though it doesn’t seem likely that this license will be widely used, trying to get willing copyright holders to license their works with the terms that they want, or no terms at all, is a big part of their effort so having this waiver available likely means more than the number of likely licensors would indicate.

To say the least, it is an interesting project that has been over a year in the making. It is nice to see it reach its version 1.0.