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Why Using Creative Commons Licensed Materials Is Not As Easy As It Looks

from the still-requires-thought dept

Wed, Feb 6th 2013 8:02pm — Glyn Moody

Creative Commons recently celebrated its tenth anniversary, with well-deserved praise for its work flooding in from around the world. There's no doubt it has played an important role in raising people's awareness of the problems with copyright, and in offering some alternative licenses that ameliorate some of its worst aspects. But there is a danger that people think that CC-licensed works are trivially easy to use, not least because they typically give users more rights than traditional copyright. In fact, there are a number of subtle issues that can crop up that make using such liberal licenses harder than it looks.

That's underlined by an interesting blog post from Bobbi Newman about a problem she encountered when using CC-licensed photos in presentations:

Like many librarians I often turn to Creative Commons licensed photos on Flickr for use in my presentations and blog posts. Flickr makes it incredibly easy to search for photos with a Creative Commons license. Unfortunately it also makes it ridiculously easy for users to change the license on all their photos at any time with the click of a button. There is no way to prove the license at the time of use.

She then goes on to detail what happened, and how it was finally resolved, but here I want to focus on a couple of points raised by this episode. First, on the issue of changing licenses. Perhaps because CC licenses give creators a flexibility missing in copyright itself, there is a belief in some quarters that things can be changed after a work has been published under one of them. Although the licence attached to the work on Flickr, say, might indeed be altered "with the click of a button", the Creative Commons FAQ says the old one cannot be taken away: CC licenses are not revocable. Once a work is published under a CC license, licensees may continue using the work according to the license terms for the duration of copyright protection.
However, proving that something was originally available under a CC license when its owner claims that it is only available under restrictive conditions is more problematic. Interestingly, there are services that try to address this problem by keeping "dated, independently verified copies of license conditions associated with creative commons images," which suggests that this is an issue faced by quite a few people.

Another aspect of the situation discussed in the blog post revolved around whether the use of an image was non-commercial or not. You might think this is "obvious", but in fact, it's proved a hugely problematic issue for Creative Commons licenses, with heated arguments about what are the key factors that make something commercial or otherwise. This lack of clarity is one reason why the use of the term "commercial scale" without further definition was so dangerous in ACTA.

Although using works released under a CC-license, with the additional flexibilities that it offers the user, is less onerous than handling those under traditional copyright, which lacks them, it is nowhere near the "use and forget" level of simplicity that many probably assume.

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Filed Under: confusion, copyright, creative commons

30 Comments

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Anonymous Coward, 6 Feb 2013 @ 8:13pm

Another aspect of the situation discussed in the blog post revolved around whether the use of an image was non-commercial or not.

Well, there is an easy way around: Dont use NC stuff!
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Carlos Sol�s a.k.a. ArkBlitz (in the rest of the I (profile), 6 Feb 2013 @ 8:43pm

Re:
The Free Cultural Works Definition declared non-commercial licenses as non-free for a good reason.
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Anonymous Coward, 6 Feb 2013 @ 9:47pm

This is why copy'right' should be opt-in if it is even to exist at all. There should be a federal sponsored database where all works get submitted and stored (with redundant copies all throughout the country). The database should contain the content (movie, picture, video, song, etc...), submission date, license (ie: CC, all 'rights' reserved), copy'right' expiration date, etc... When the work enters the public domain anyone should be able to freely download it from this central database and the database indicates when it was released into the public domain. This way copy'right' might better serve its stated purpose of promoting the progress and providing the public with more freely available content (instead of just serving its corporate bought purpose of restricting work and stifling the progress for corporate gain)
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Anonymous Coward, 6 Feb 2013 @ 10:32pm

Re:
and I think the OP is a problem with copy'right' being opt-out in the first place, it maybe difficult to determine (especially 95+ years from now) exactly when a work was published (if it has no publication date) and so it maybe difficult to determine when it should enter the public domain. Does copy'right' law require there to be a publication date on protected works?
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Anonymous Coward, 6 Feb 2013 @ 10:34pm

Re: Re:
(that is, does it require that a publication date be communicated by the works, ie: printed in a book or on a protected picture or present in a song).
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Anonymous Coward, 6 Feb 2013 @ 10:52pm

Re: Re: Re:
even noticed those number next to the copyright mark ? usually 4 digits.. THATS THE YEAR !!!!!...

would td be consider commercial use of CC material ?

I would have to conclude that as Masnick makes money from the sight, from the content he posts on the site, that any material he posts has to be consider as a commercial use of that material.
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Jeroen Hellingman, 7 Feb 2013 @ 1:15am

Even more problematic outside the US.
As has been noted here recently (in Dutch), outside the US, CC-licenses may be even more problematic in jurisdictions outside the US, where licenses are often considered contracts, and contracts that are for an undetermined amount of time (including the CC contract that claims to be perpetual) must (by law and legal precedence) have some way of being terminated. One smart way suggested to work around this was to include the phrase "(or, where the legal system does not permit a perpetual license, a license for as long as copyright and similar rights on this work persist)" into the text of the CC license.
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Ninja (profile), 7 Feb 2013 @ 2:05am

I use the licenses and I find them rather useful. The non-commercial use perk particularly attracted me to them. And I also find it hard to define commercial use. I'd guess that a clear definition from CC team themselves would solve most confusions.

For me, commercial use is to profit directly from selling the creative work or selling something containing the creative work. In this sense TPB would be exempt since it's a service that allows sharing of said stuff among their users. Unless a service relies solely on a single source of creative works then we should assume it's not commercial.

I'd go further and say that it still leaves an issue since TPB for instance has a lot of music and movies so the MPAA could try to make a point it's commercial. However it's not true, along with open source, free content it also has infringing versions of games, TV shows, e-books, 3D blueprints (!!!) etc. So it's not focused in a single market.

But of course it's open for discussion.
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Sheogorath (profile), 7 Feb 2013 @ 2:40am

Can't prove licence? Really?
"There is no way to prove the license at the time of use."
Hello, screenshots as JPEG email attachments!
*puts head through brick wall*
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Anonymous Coward, 7 Feb 2013 @ 3:13am

Re: Re: Re: Re:
Learn to use grammar properly, then we can start working on that shabby mess you call a point.
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Anonymous Coward, 7 Feb 2013 @ 3:24am

Re: Can't prove licence? Really?
I would have though it would have been "*puts head way above the Hill of Suicides*" /tangent

But yes, that might work,so long as there was no editing done tot he image file.
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MK, 7 Feb 2013 @ 4:53am

Wikipedia has a review system for Flickr imports
Wikimedia Commons has a system of license review for Flickr imports: a trusted user (or usually an automatic bot) verifies that Flickr image had a compatible CC license at the time, and marks the imported image as such. This is a safeguard against the ability to change license in Flickr (and other sites) without logs or indications of prior licenses.
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nasch (profile), 7 Feb 2013 @ 6:35am

Re: Re: Re:
No there is no requirement to include a copyright notice or date. Anything published is automatically copyrighted.
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Fd1, 7 Feb 2013 @ 6:47am

Re: Can't prove licence? Really?
Screenshots can be forged. Better use an independent third-party service such as archive.is.
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madasahatter (profile), 7 Feb 2013 @ 7:08am

CC Licenses - NC use
NC use is one of the options are that can be chosen. My definition of NC use is that one can not resell the work. If the NC work is used, say, on in ad supported blog that is fine because the work is not being sold.

Part of the problem is that the CC license nomenclature is not easy to decipher at a glance for most. So I am reduced to looking up the precise terms of the CC license being used. And there some very significant differences between the licenses.
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Anonymous Coward, 7 Feb 2013 @ 7:34am

Re: Re: Re: Re:
That some works have publication dates printed doesn't answer the question regarding whether or not such a thing is required.
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Anonymous Coward, 7 Feb 2013 @ 7:35am

Re: Re: Re: Re:
I didn't think such a requirement existed but wasn't sure, since such a requirement would make sense. Then again, when has IP law ever made sense.
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newsgrist (profile), 7 Feb 2013 @ 7:36am

fair use is dead. long live fair use!
Great post by Bobbi Newman... But the focus on CC confusion and flickr enablement is beside the point-> we can reproduce COPYRIGHTED works in our [educational, non-commercial, etc] presentations without permission or licensing because it's a FAIR USE.
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nasch (profile), 7 Feb 2013 @ 8:35am

Re: Re: Re: Re: Re:
Then again, when has IP law ever made sense.

Late 18th to early 19th century? :-)
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jupiterkansas (profile), 7 Feb 2013 @ 8:40am

Re:
Opt-in is the first step to sane copyright law. If you want copyright, you must register. Why is this such a problem?

We live in a world where EVERYONE is a creator. Everyone has a camera. Everyone writes. And everyone publishes. Making it illegal to copy any of it is ridiculous and impossible to enforce.

If people want to reserve the right to copy, they need to register to a database, and indicate as much in the work itself. That's what metadata is for.

Where is the politician trying to make this the law?
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John Fenderson (profile), 7 Feb 2013 @ 9:06am

Re: Re:
Where is the politician trying to make this the law?

You mean reinstate this as law. Because it's how it used to be before Congress decided that copyright needed to be perverted into the atrocity that it is now.
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jupiterkansas (profile), 7 Feb 2013 @ 9:41am

Re: Re: Re:
Correct. Reinstate.

I guess my question is... what was so wrong with the system before, where works had to be registered? It would be even easier to do today online than it was before 1978.
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TroutFishingUSA, 7 Feb 2013 @ 11:11am

Re: Re: Re: Re:
The problems before 1978 were legion.

What's the copyright status of a private journal?

How about an unfinished novel?

Or just an unpublished novel?

Work in progress?

Rough drafts? By that, I mean the various drafts of a finished project before final revisions? For example, a band records a song that has a piano on it, but after listening to it, they decide to replace that with a harmonium. What's the copyright status of the earlier draft, with the piano? Not the composition, but the actual copyright in the "tape" that the earlier draft resides upon. (Let's assume that the band ended up with two "tapes," the harmonium version and the piano version, but only one was published.)

It's also a greater burden on poorer artists/authors (read: 99.9% of them) who would probably opt for a month of groceries rather than pay for official copyright registration.

Having copyright from the beginning, in my experience, has increased collaborative efforts. If your work isn't under copyright until it's officially registered and published, then you'd better not be showing rough drafts to anyone you don't completely trust. Automatic copyright just doesn't seem like much of a problem in my eyes, compared to its benefits.
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jupiterkansas (profile), 7 Feb 2013 @ 12:16pm

Re: Re: Re: Re: Re:
Well, that makes sense. A solution then might be an initial 3-5 year automatic copyright, during which you must register to maintain copyright for a longer period.

This would allow for creative freedom in the short term, but allow commercial use for the long term.
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John Fenderson (profile), 7 Feb 2013 @ 12:55pm

Re: Re: Re: Re: Re:
I disagree almost completely.

There are edge cases with problems, but those problems are trivial compared to the mess that automatic copyright causes.

What's the copyright status of a private journal? How about an unfinished novel? Or just an unpublished novel? Work in progress?

Those wouldn't be copyrighted, of course, unless you register them. Same as everything else. If it's such a problem, then register them. Or a better solution is to not publish them until they're registered. I don't see why this is a problem.

It's also a greater burden on poorer artists/authors (read: 99.9% of them) who would probably opt for a month of groceries rather than pay for official copyright registration

You mean the very people for whom copyright offers little real protection anyway.

If your work isn't under copyright until it's officially registered and published, then you'd better not be showing rough drafts to anyone you don't completely trust.

For people for whom this is truly a concern, they can just get an NDA from the people they want to "share" it with. Problem solved.

Automatic copyright just doesn't seem like much of a problem in my eyes, compared to its benefits.

Well, I don't agree that anything you listed is a benefit, but skipping past that... The problem with automatic copyright is that it makes it difficult to impossible to determine the copyright status or copyright holder for things. This leads to real harm, both legal and societal, for everybody, both content creators and not.

If we're going to have a system as draconian, intrusive, and (in my opinion) grossly unfair as what we have, then at the very least we need a way to accurately determine the copyright status and owner for any given work.

With automatic copyright, this is impossible.
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nasch (profile), 7 Feb 2013 @ 1:06pm

Re: Re: Re: Re: Re:
Even if we just required a copyright notice on the work, that would solve a lot of problems.
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john r walker, 7 Feb 2013 @ 2:25pm

re opt-in and proving 'it' was CC when you acessed it
The berne convention prohibits "formalities" such as the requirement to register copyright with a central 'office'... least that is the usual interpretation. A bigger problem could be all the stuff published over the past 50 or so years.

Regarding CC and people changing their minds, are services like the WayBack machine useful or a possible solution?
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Fredrik Haikarainen, 4 Jun 2014 @ 5:04am

Re:
NC isn't always bad. I've licensed my website with BY-NC-SA, and then all articles with BY-SA. This means I can be more possesive with my website/foundation on which I speak, but less possesive with the contents/articles/what I speak.
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Philumptuous, 4 Dec 2014 @ 3:16pm

Re: Anonymous Coward
This idea sounds nice, but in reality would be incredibly difficult. Maybe it would be possible in the future, but I doubt the government is about to invest in enough server space to host multiple copies of creative works from individuals around the entire country.
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Ramon, 20 Oct 2015 @ 8:04am

CC lince se is non revocable
What if I change my mind about using a CC license?

CC licenses are not revocable. Once something has been published under a CC license, licensees may continue using it according to the license terms for the duration of applicable copyright and similar rights. As a licensor, you may stop distributing under the CC license at any time, but anyone who has access to a copy of the material may continue to redistribute it under the CC license terms. While you cannot revoke the license, CC licenses do provide a mechanism for licensors to ask that others using their material remove the attribution information. You should think carefully before choosing a Creative Commons license.
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