The Good of Creative Commons


In late August, Copycense posted a lengthy and compelling editorial describing what it feels is the damage that Creative Commons Licenses are doing to the public discourse on copyright.

According to Copycense, Creative Commons brings with it a set of very serious potential legal and societal issues that are actually making the copyright debate worse and hindering real reform to copyright law, including the following:

  1. Making copyright law a contract matter, bring with it a host of legal issues
  2. Individuals are placing CC licenses next to one’s work to appear trendy and insightful
  3. CC licenses enable people to avoid the question of how copyright should be reformed by creating a runaround
  4. The CC Organization has not done enough to promote copyright reform

Some of the criticisms are fair. Creative Commons Licenses definitely have the potential to turn copyright disputes into contract ones, which opens up a series of problems and many who use CC licenses have little to no clue what they mean or do. This not only leads to conflicts but has helped, in some circles, grant the “purity” status that Copycense describes.

However, the article does ignore the good that CC has done and has the potential to do while overstating some of the dangers. Yes, CC is a “hack” of the current copyright system, but any computer user will tell you that, sometimes, you have to hack a system to show what it is capable of. That, in my belief, is what CC is doing.

The Proper Order of the Horse and the Cart

Copyright is not going to be reformed overnight. Trying to seriously alter a regime that is vital to a country’s economy is difficult in one nation, but when you factor in international treaties and the globalization of said economy, you have the quintessential example of trying to turn a battleship.

Business models, though not exactly quick in their own right, can grow and develop much faster than the law in this area. However, for new business models to take flight, they need to have the tools to make them happen. Creative Commons provides both a powerful legal architecture for these models and it comes with a broad understanding by Web users as to what the licenses mean.

While it’s true that most who use CC licenses have never read the legal code of their CC license (I suppose I’m an exception here) they understand the broad strokes which, as I know in my line of work, is often much more than they understand about copyright law in general. CC licenses bring clarity to what people can and can not do with a work in a way that even laypeople can grasp reasonably quickly. It isn’t perfect, in any regard, but its an improvement.

Once the legal tools are in place to share work more openly and people have a reasonable understanding of what the limits are, then new business models can be tested and, when working ones are found, then the law will likely follow. Broad, international copyright reform is not going to first take place in the legislatures of the world, but in the boardrooms. CC enables that second kind of reform.

Contracts Are Already Everywhere

Though Copycense is correct that Creative Commons runs the risk of making copyright a contract matter, it isn’t the only copyright license by a long shot. I recently purchased Snow Leopard for my Mac, it came with a length agreement or “Clickwrap” license that I had to agree to before proceeding. As does nearly every application I download, no matter if it is free, open source or paid.

In fact, it was this kind of clickwrap licensing that the ProCD case cited in the Copycense article was dealing with, not a CC license. We encounter these licenses much more regularly than CC licenses and they impose much greater restrictions on what we can do.

While there is room for improvement with CC, I agree the lack of jurisdiction is disconcerting, if contracts do overtake copyright as the dominant legal regime on these matters, it will not be the fault of the Creative Commons Organization. There is a terms of use on nearly every major site, even Google has lengthy one that deals with copyright issues.

If contracts are to be the lay of the land moving forward, is it better to have every contract be like Google’s, lengthy, obscure and rarely read, or a CC license where at least the broad strokes can be understood instantly by any one?

As few people read the legalese version of Creative Commons licenses, I’m sure even fewer, percentage wise, read the full TOS of Facebook, YouTube and other sites they register and use every day. Yet people are constantly uploading works to those sites to be trendy, just as they are applying CC licenses to their work elsewhere.

If contracts are the future of copyright on the Web, then Creative Commons is the least dangerous force and also one of the least prevalent.

Creative Commons Does Not Stifle Debate

Finally, the article says that Creative Commons Licenses stifle legitimate copyright debate by creating an end run around the current flaws in the system. I disagree.

The article cites Canada’s ongoing public discourse over copyright reform as a shining example of how this discourse should be held. While I agree wholeheartedly with that statement, the article ignores a very critical point: That CC licenses are international and available in Canada too.

When you choose your CC license, you can have one in the Canadian jurisdiction. In fact, Michael Geist, the copyright reformer rightly praised in the Copycense article for bringing about this discourse, uses a Canadan CC-BY license on his site.

Geist, and other copyright reformers, don’t see the current copyright system and say “Well, no need to deal with it, I can just apply a CC license to my work and use other CC-licensed items and be done with it, problem solved.” CC licenses don’t fix the problem and anyone who is interested in copyright reform can see that plainly.

Canada shows that Creative Commons Licenses and copyright discourse can, and do coexist. If anything, by giving a very public and very prevalent face to copyright reform, CC licenses likely turn more people onto the debate, something TechDirt and I agree on.

Bottom Line

Last year at a conference Anthony Falzone described Creative Commons as a “GUI for copyright”. Though he’s not an official representative for the Creative Commons Organization, the description is apt enough. It’s an attempt to make copyright more user-friendly, both for those seeking to reuse content and for those who wish to license it.

Creative Commons is not perfect but it is better than the alternative. As any doctor will tell you, any time you treat an illness there is a risk for potentially serious side effects and problems. Such is the case here.

However, that doesn’t mean that the treatment isn’t valuable or productive. To those who promote copyright reform, Creative Commons is a go-between the current system and the proposed new one, whatever it may look like.

I don’t think the Creative Commons Organization wants CC licenses to be necessary forever. They’d like a simpler, easier and more effective system that benefited everyone and made it easy to set terms without the need for “hacks”. But that system is a long ways off and, in the meantime, the world is much better with Creative Commons than without it, warts and all.

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