A recent post on Blackstar Rising by Scott Baradell entitled “Why Photographers Hate Creative Commons” lays out a case that Creative Commons Licenses, especially as they apply to photos, are frequently violated, misunderstood and, worst of all, confusing.
As someone who is both a CC user and some who has spoken up about problems with following CC licenses in the past, I wanted to talk briefly about these issues as they can also connect easily with any content licensed under CC.
Simply put, though I appreciate and respect the concerns Baradell raises, and even agree that more work needs to be done, I think he is missing the larger picture.
Though the original article, linked above, is well worth the read, there were three basic arguments Baradell provided .
On the surface, Boradell makes a very compelling argument. He is very right that commercial use is often a confusing area of CC licensing, that the licenses themselves are rarely followed and that a high degree of sharing takes place even without the CC logo.
However, that takes a very narrow view of CC licenses. It addresses the issues and problems without weighing the merits. To take a broader view, I’ll briefly look at each of the issues.
1. Creative Commons Licenses Aren’t Necessary
Just because there is a lot of copying going on does not make it legal. “Everyone else is doing it” is not a defense in court nor does it shield you from a DMCA notice or a cease and desist letter.
Sure, if you take someone’s photo and put it on your non-commercial site with proper attribution, you likely won’t hear anything about it. But much of that is because the photographer is unlikely to even be aware of the copy. As new technology makes it easier to track photos on the Web, expect that awareness to rise and, with it, the number of complaints.
But while it is true that sharing is generally well-tolerated on the Web, it is meaningless without codifying it into either a license or the law itself. Until you have legal right to use that image, you can have it stripped from you at any time or even be sued over it.
Creative Commons licenses codify that notion of sharing and provides a guarantee to the user that they can post the work without fear of reprisal. This encourages sharing and rewards the person doing the sharing by promising attribution and a link back.
However, what I find especially dangerous in Baradell’s original piece is that he encouraged photographers to produce their own copyright licenses. This is extremely dangerous.
If you can not write the full legalese of a license, then license writing is not for you. One mistake and you can give away rights unintentionally or damage a future court case. These licenses are written by lawyers for a very good reason.
If you don’t want to use a CC license, I strongly encourage people to either find another professional license to use or default back on to traditional copyright.
2. The Notion of Commercial Use is Vague
If you think “commercial use” is a vague gray area, try fair use. As someone who has spent hours of his life playing with fair use diagrams, I can safely say I’d rather chance that my use is non-commercial than fair.
After decades of case law on commercial use, we have a decent picture of what constitutes it. Yet, after almost as much case law on fair use, we have no clue what constitutes an act of fair copying and rulings there are often all over the map.
The point is that, without a CC license, all non-commercial use has to rely on fair use before they can legally use a work on their site. There might be a few points of contention in this area, but Creative Commons actually has made it a lot easier to determine when it is acceptable to use a work.
The mere fact it isn’t perfect does not mean it is not an improvement.
3. Creative Commons Licenses Are Rarely Followed:
There is no doubt in my mind that this is true. On my poetry and short stories, I would say only about 30%-40% of the copies I see follow the spirit of the license and only a handful have followed it to the letter.
However, this problem doesn’t go away if you remove the CC license. As rarely followed as a CC license is, vanilla copyright is followed even less of the time.
Many people expect Creative Commons to be a magic wand that fixes all of the copyright problems we have. With a simple wave all of the license spammers, confusion and bad guys are supposed to disappear. It doesn’t work that way and was never supposed to.
Creative Commons is a series of copyright licenses, just like any others. People are going to ignore them, people are going to misinterpret them and people are going to abuse them. It is no difference than the GPL, BSD, Mozilla, Apache and other copyright licenses.
It does not eliminate the need for you to protect your content from those who violate your license. However that number will be significantly less than if you didn’t have a CC license and chose, instead, to enforce a traditional copyright license on your content.
It is also true that many of these misuses stem from confusion, but confusion is equally prevalent when dealing with copyright law itself. There is a reason that copyright myths articles are so popular.
Once again, removing a CC license does not end this problem and, in fact, makes it much worse.
I’m the first to admit that there are problems with Creative Commons. Attribution could be better defined, commercial use could be more clear, the concept of CC itself could be better promoted outside of tech-savvy circles and better tools for searching and using CC-licensed material need to be developed.
That being said though, even with its flaws and blemishes, Creative Commons is a giant leap ahead of what what existed before it. Compared to the actual copyright code, Creative Commons is a masterpiece of simplicity and clarity.
WHile there isn’t a doubt that CC licenses aren’t for everyone, those who do wish to allow sharing of their works almost universally turn to them because they have best solved solved the problem of meshing our restrictive and confusing copyright code with the share-friendly laypeople that produce much of the content for the Web.
The solution isn’t perfect, as I’ve noted, but it is the best available.
If CC licensing isn’t adequate, then by all means produce your own copyright licenses and even create your own organization to promote them. If you can solve the problem above better than CC, I will gladly jump on board and promote you here.
Better yet though, get involved with the Creative Commons Organization and help them fix the problems that you see. It is certainly much easier than trying to recreate everything from scratch.
In the end, CC licensing isn’t about being perfect, it is about being better than what existed before it. Im=n that regard, it has achieved swimmingly.
The solution may not always be elegant, but if you want to allow sharing of your content, you are much better off with it than without it.