The recent controversy over Flickr’s sale of Creative Commons-licensed works as wall art has many artists and photographers, on Flickr and elsewhere, rethinking the terms of their Creative Commons licenses.
But if you do happen to decide to change or remove your Creative Commons License, what does that actually mean? Can you revoke a Creative Commons License and, if so, what does it mean when you do?
The answers to those questions are complex because we first have to look at what the license and the law says and follow that up with a discussion of how Creative Commons works are used in practice.
Because, as with so many things in copyright, a simple answer may be accurate, but fails to tell the whole story.
What the License Says
If one looks at the license itself, the answer could not be more clear. Creative Commons Licenses are irrevocable. Period. End of sentence. Possibly end of article.
What this means is that if you place a work under a Creative Commons License and another person uses it in a way that is compliant with that license, you can not force them to stop.
For example, if a musician licenses a track under a CC license and you use it, legitimately, in your podcast, you are not required to stop using it if they decide to pull their music down or remove their license from the work.
Furthermore, since using a work under a CC license generally means redistributing in some fashion with the license intact, others can come in contact with the CC-licensed copies and use it as well.
Going back to the podcast example, if the song was licensed under a CC-BY license, anyone who is listening to the song will also be able to use it because displaying the license is part of proper use of a Creative Commons work.
In short, once you license a work under a Creative Commons License, you can not stop those who begin to use it nor can you prevent any uses that stem from that reuse of the work. Thus, the Creative Commons organization is very correct in saying that you should think seriously before licensing content under a CC license and prepare yourself for the fact that it is a permanent decision.
The Practical Implications
Legally, the answer couldn’t be more clear: Creative Commons Licenses are irrevocable.
However, there are some practical application points worth discussing, even if they don’t change anything legally.
First, many, if not most, works licensed under Creative Commons are not used. If a work hasn’t been used under the license and the license is removed, no one will be able to use it in the future unless they recall the license and use it later. However, most won’t know or recall the license and will either never have been presented with the license, such as with new visitors, or otherwise won’t be aware of it.
This reaches “If a tree falls in a forest” levels of hypothetical, if no one has used your CC-licensed work to date, removing the license will probably mean that no one ever will, even if at least some legally can.
Second, if you remove the license from your site, future works will definitely not be available under a Creative Commons Licenses. New blog posts, images, podcasts, etc. will be under whatever new terms you choose. This can prevent RSS scraping and other, ongoing use of your new content.
Finally, every Creative Commons License has three components, a legalese license, a human-readable one and machine readable one. The latter is very important as it is how search engines and other automated tools find work for reuse. Removing the CC license, though not an effective revocation of any current use, prevents those tools from finding your site and others being directed there.
So while it’s safe to say that you can’t revoke a Creative Commons License and many uses of your work will likely continue, the truth is, removing your license does have a practical impact on if and how your work is used by others.
In short, while you can’t stop the reuses of your work that have started before the change or the uses that spawn from those reuses, you can minimize new ones greatly.
Looking at the Flickr Situation
Turning our attention back to the Flickr situation, it is somewhat unique in this area.
While Flickr could, theoretically, continue to use works once their license has been changed, it doesn’t appear that it will. The reason is simple. Flickr’s store searches through its library looking for photos licensed under acceptable terms. It does not seek out images that USED to be licensed under those terms.
So, if you are upset that Flickr is selling your art, changing your license will indeed prevent it. Not because of the law, but the technology. However, bear in mind it won’t automatically qualify you for money from any previous sales or give you the ability to rip the art of someone’s wall. It just means Flickr won’t sell any further prints.
Considering Flickr has a large enough library and has already faced enough outrage, there’s likely no chance Flickr will start targeting photos that have a changed license. If the outrage were not white hot already, doing so would simply make things that much worse.
In the end, the greatest challenge here may not be attempting to revoke a Creative Commons License, but rather, proving that a work was used correctly under. This issue was raised on the Lireo Design Blog and has been a challenge for as long as Creative Commons has been around.
Basically, if my Creative Commons License disappeared tomorrow, how would you prove, in a court, that you used my post legitimately? This is part of the problem non-repudiation services such as Numly and Registered Commons were attempting to tackle, but never really took off. You can even find articles on this topic as far back as 2006 and beyond on this site.
However, the very idea of Creative Commons depends on people almost always doing the right thing. This is both in terms of the legal requirements of the license and the more ethical ones, such as ensuring the relationship between licensee and licensor is symbiotic. This, as stated in my first article, is part of why so many found the Flickr move so offensive.
This means that, if you change your mind about your license, applied one by accident or otherwise need to remove it, you always have the option of approaching those using it nicely. While you can’t force them to stop using it legally, many will likely do so voluntarily.
After all, Creative Commons is about cooperation and that cooperation takes many forms.