Thank you to our intern Sam Goudie for this interesting paper on the benefits and disadvantage of creative commons licenses in the digital age.

With the rise of copyright enforcement, and the counter movement for the public, licensing and copyright is a minefield for Artists.  Consider the metal outfit All Shall Perish whose publishing rights were purchased by a rather litigious label that proceeded to sue their fans, without informing them.  This scenario, and others like it, shows how important it is to understand the proprietary rights you have to your works.

For musicians, artists and performers, the idea of monetizing their art can seem like an amazing (or despicable) dream.  However a surge in licensing under the schemes like the Creative Commons has allowed artists to share their music freely, whilst retaining a set spectrum spectrum of their proprietary rights.

If you’re not sure what creative commons is, or how you should share your art, you should probably read on.  This article will discuss the precepts and ideologies of the creative commons, the benefits to the artist and community, and highlight the potential pitfalls and dangers.[1]

What is the Creative Commons?

The creative commons is a grass roots movement, founded by Lawrence Lessig in 2001 seeking to expand “the range of creative work available for others to legally build upon and share.”

It does this using a model of standardised unilateral licenses that allow the creator to assign work to the public domain, with restrictions on how the work is utilised and/or disseminated.

Some argue that this allows access to content not normally licensed, and creates a domain of free information, that will propagate further creativity, culture and human innovation.  On the other hand the actual framework has been accused of fuzzy ideologies, and creating potentially untenable proprietary rights.[2]

What spurred the Creative Commons?

The movement itself was spurred by the increase in the rights and penalties involved with the copyright movement.  Consider in Australia, where a unilateral agreement with America extended the length of copyright from 50 to 70 years. [3]

How does the creative commons work?

The creative commons is found in digital releases, and allows the artist to choose from a set of standardized licenses that will dictate how others can then use the content.  The licenses consist of-

• Attribution – this requires any further use by another party to acknowledge the Author
• Noncommercial – Which bars the author from profiting from any further use or derivatives
• NoDerivative Works – This bars the user from altering or creating derivatives of the works.
• Share Alike (sa) license creates a “viral licensing scheme”, where users can disseminate works in the same way that the original license was utlisised.

An example would be if I were to create a song about a duck, with an” attribution, non commercial, share alike” license.  Any person who so happened to enjoy the song, or have an idea for a remix of it, could create a derivate, say for example by taking the tune but make it about a shoe, and disseminate at will.  However they would have to attribute the original to myself, couldn’t make any money, and would also have to release it under an “attribution, non commercial, share alike” license.[4]

Is creative commons right for me?

It is argued that by sharing expression in this way, the cultural collective has been grown, and that this furthers creativity.  It is also stated that this overcomes the barriers to access that traditional copyright creates.

The standard copyright system is an “opt-out” system, where a creator publishes content, and has absolute license over their content.  This means that for an aspiring DJ or song writer to use my Duck Song, they would have to contact me, which can be costly and unrealistic.

Creative Commons is an “opt-in” system, where once I have published my work, users are free to remix, mash up, draw on or spit out my work at will.  This purportedly reduces the cost of information and barriers to the flow of ideas.

Why would someone use release under the creative commons then?  To the artist the value of a song is no longer just in the sale of a record.  Take for example the mash ups and reappropriation of PS’’s “Gangham style”.  The parodies, remixes and derivatives are part of what fuelled a billion hits on his video, and led to a sold out world tour for a previously unknown South Korean pop star.[5]

The pitfalls of the Creative Commons

There have been questions raised about the validity of the framework it’s built on, and the unforeseen consequences that could arise in the future.

Firstly the very basis of the Creative Commons has been questioned by scholars and industry think tanks.  Originally Lessig presented it as a form of unilateral contract with the world – an offer, consisting of restricted use, accepted upon said use.  The issue with this is that innate in the rules contract, in this scenario where is the consideration?

It is argued that simply defining it as a licensing scheme means that it is possible to standardise system and reduce fuzziness, but the nature of the agreement, license or contract, is one not settled in scholarly circles.  In fact this definition could change merely with jurisdiction.

This uncovers the next key issue – the Creative Commons have been replicated in 36 different countries, each with their own licensing and contract laws.

The way this definition impacts the artist is in the remedies for breach, a license allows termination and claims for infringement, whereas a contract entitles a plaintiff to damages and enforcement of obligations.

The key and most relevant factor for a user and content generator is the issue of revocation, the share alike license is purportedly in perpetuity, however a copyright license is supposed to only last for the lifetime, plus seventy years, so is this share alike license really forever?

The problem here is there is still no clear answer, this isn’t legislation handed down after judicial debate and constitutional consideration, this has been developed at a grass roots level as a form of social contract, almost a social experiment.

But where there is no certainty, there is inevitably litigation.  A good example would be if you wanted to monetize something originally granted to the creative commons, could you?  According to the license you wouldn’t be able to re-license it in another way.  Or say the courts did find that the perpetuity was invalid, and suddenly parties were revoking their licenses.  What happens to those that have derivative work?  What happens to the person who remixed my aforementioned “duck song”?  Would they then lose their license and then be forced to negotiate another license, or take the song out of the public domain?  What about derivatives of that derivative?  Would the original re-mixer then be liable for further derivatives?[6]

In the ideological world of the creative commons all expression is shared and should be disseminated freely.  But it is innately built on proprietary grounds, and where there is property there is money and where there is money there is inevitably conflict.

What’s next?

So if you’re sure you never want to make a dime off of a work of art, be sure to license it under the creative commons, and if you find something you wish to use that is licensed as such make sure you understand the nuance of the license.    The Commons is a great way to break the barriers to sharing and creating ideas, but beware of the pitfalls.

If any or all of this sounds like it applies to you, but is above your head, the best next step is to discuss your rights and or obligations with a Lawyer.

GI and Sanicki Lawyers offer free consultations, and will be able to guide you to the best licensing scheme for your work, or the best steps for utilising the works of others.