Creative Commons: Addressing the perils of re-using digital content

Do you dream of owning an Apple iPad anytime soon? If so, you are one of millions of people salivating at the thought of using such a sexy device to create and consume all manner of digital content e.g. books, pictures, music or movies.

Indeed such devices promise exciting times for all digital content creators; and even entire industries, (e.g. news and magazine publishers), can hardly contain their excitement at the prospect of a device that just might single-handedly revive their ailing fortunes.

But this is not another gushing product review, instead it is meant to highlight the challenges that this, and other such devices, will surely pose to the already embattled system of Intellectual Property or Copyright. Namely, how can you be sure that the content you create, re-use and consume on your device does not infringe another party’s copyright?

This is a burning question in the minds of many professional and non-professional creators and re-users of digital content, (e.g.: authors, bloggers, photographers, film-makers, illustrators, web-designers, or even university lecturers and their students); especially in light of new governmental instruments like the Digital Economy Act.

The right answer must provide, at the very least, a clear and simple method by which anyone can legally create, distribute, use and remix digital content without fear of inadvertent copyright infringement. This article examines one such method, which is increasingly being used by many creative people to get around this difficult issue, and it’s called the Creative Commons.

What is the Creative Commons?

According to their website, the Creative Commons (or CC) is a non-profit organisation devoted to increasing the amount of creative works that are free and legal to: share, use, re-purpose and remix by the general public, aka ‘The Commons’. The CC was established in 2001 by an eight strong group of experts in fields like cyber law, Intellectual Property (IP), computing and education.

The first version of CC Licences was released in 2002, and since then over 130 million works have been licensed under this and subsequent versions (it’s currently at version 3.0). Furthermore, CC licenses have now been ported to over 50 countries or jurisdictions internationally, with more coming onboard every year.

How do CC licenses work?

The Creative Commons provides free, legal tools that enable content creators to grant clear, simple and more liberal copyright-based permissions for the use of their works. It works alongside existing copyright laws, but instead of the default copyright position of ‘all rights reserved’, CC allows content creators to specify a more flexible proposition with only ‘some rights reserved’.

This is achieved via a multi-step gradient of pre-bundled permissions which bridge the gap between binary positions of copyright (i.e. all rights reserved) and the public domain (i.e. no rights reserved). There are six commonly used types of CC licenses, which are briefly described by order of increasing restrictiveness, as follows:

 

Symbol

Brief Description

1

Attribution

[BY] By Attribution

Permits all uses of the original work, as long as it is attributed to the original author (Note: Attribution is in all six licences)

2

Share Alike

[BY-SA] By Attribution - Share Alike

As above, but any derivative work must also use a similar license, hence ‘Share Alike’

3

No Derivatives

[BY-ND] By Attribution - No Derivatives

Licensed works are free to use / share with attribution, but does not permit derivative works from the original

4

Non-Commercial

[BY-NC] By Attribution - Non-Commercial

Licensed works are free to use / share / remix with attribution, but does not permit commercial use of the original work

5

Non-commercial - Share Alike

[BY-NC-SA] By Attribution - Non-commercial - Share Alike

Does not permit commercial use of the original work, and any derivatives from it must use a similar licence

6

Non-Commercial - No Derivatives

[BY-NC-ND] By Attribution - Non-Commercial - No Derivatives

Does not permit commercial use or derivatives of the original work. (Note: this is the most restrictive of CC licenses, and it’s often regarded as a ‘free advertising’ license)

Source of images: http://creativecommons.org/about/licenses/

All CC licenses are represented in three levels, which are easily accessible for: computers (i.e. machine-readable Digital Code, or metadata); lawyers (i.e. the ‘Legal Code’); and ordinary people (i.e. the Commons Deed).

What are the limitations and pitfalls of using CC licenses?

CC is by no means perfect for every situation, especially since it doesn’t cover every single type of rights and privileges related to content. For example, CC licenses do not affect the rights of content creators or consumers in areas like: Fair Use or Fair Dealing, Moral Rights and / or Privacy.

In fact, the latter aspect of privacy has been in the spotlight on a few occasions, most memorable of which involved a minor whose image was used in an advertising campaign without her knowledge or permission, which ultimately led to charges of violation of privacy, even though the photograph in question had been posted on Flickr.com under a CC By Attribution license!

Furthermore, the global scope of CC and the Internet only adds to the complexity and geo-political implications of such allegations. For example, the minor and photographer in the above case were both based in the USA, but the ad campaign took place in Australia.

In light of this and other similar cases, Maria Kessler, President of the Picture Archive Council of America, advises caution in all uses of digital images, including those under CC license, due to the many subtleties / unknown consequences of digital image rights and their usage.

In conclusion

The rise in digital content, fuelled by the ubiquity and relative ease of digital content creation, remix and distribution emphasises the urgent need for a more flexible approach towards usage rights and permissions under copyright. This need is fulfilled to a large degree by the Creative Commons system described above, in spite of the mind-numbing complexity and subtlety of the various rights / privileges / restrictions associated with copyright, content and their authors. In summary, the key messages to take away include:

  1. CC is probably the best thing we currently have to enable the legal use / reuse of digital content that would otherwise be legally inaccessible to users under full copyright. This is because CC simplifies and facilitates content use / reuse / sharing for the benefit of all (and not just for commercial stakeholders or content rights owners)
  1. The widespread popularity and adoption of CC clearly points the way to how we might evolve, or remix, the global copyright system into something that can better cope with the relentless forces of change that faces us during this crucial transition period in human cultural evolution
  1. Finally, as with most other things, CC is not a silver bullet. The subtleties of copyright versus individual rights are a minefield, even for the best of legal experts; therefore extreme caution is highly recommended when considering the use of CC licensed works in a commercial way.

References:

The Creative Commons website can be found at http://www.creativecommons.org and the UK version is at: http://www.creativecommons.org.uk. More information on other jurisdictions can be found at: http://creativecommons.org/international

Digital Economy Act - More on the debate over this bill can be found on the BCS DRM blog, including comments, at: http://www.bcs.org/server.php?show=conBlogPost.1606

Creative Commons Images: The CC license buttons and graphics remain the property and trademark of the Creative Commons. More information on their use and reuse can be found at: http://creativecommons.org/policies

More information on this lawsuit against Virgin Mobile and the Creative Commons can be found at: http://creativecommons.org/weblog/entry/7680

Conversation with Maria Kessler who is also Senior Vice President of Image Rights (http://www.imagerights.com), an Image monitoring services company.

Comments (3)

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  • 1
    IBBoard wrote on 2nd Mar 2011

    It's good to see some coverage of FOSS-style licenses from the BCS (CC isn't really for code, so it is in the same vein as GPL, BSD etc, and has a similar effect but not quite the OSS part of FOSS). My impression to date has been that I've seen far more of the "proprietary is great" with a hint of "FOSS is evil" from the BCS (especially IS Now) than promotion of the benefits and exploration of the detail of FOSS.

    "For example, CC licenses do not affect the rights of content creators or consumers in areas like: Fair Use or Fair Dealing..."

    Does a CC license need to deal with Fair Use and Fair Dealing? Surely it is like all of the FOSS licenses in that it takes existing Copyright law and adds on top of that a license that says "Copyright law doesn't allow you to make or modify this without permission, however I'm hereby granting you that permission if you follow these conditions:...".

    If you go for fair use then you're working within the copyright law, not trying to breech it, and so you shouldn't need a license. It's just a shame that the big companies and their DRM doesn't believe in real "fair use" only "on our terms" use.

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  • 2
    Matthew wrote on 26th Mar 2011

    Come on Jude, which is it?

    "The right answer must provide, at the very least, a clear and simple method by which anyone can legally create, distribute, use and remix digital content without fear of inadvertent copyright infringement"

    or "the subtleties of copyright versus individual rights are a minefield, even for the best of legal experts;"

    I would suggest CC is a complete disaster (what does an 'attribution' need to consist of?), written by lawyers for lawyers "The CC was established in 2001 by an eight strong group of experts" and the only thing you get from lawyers is more laws and by extension, more money for more lawyers.

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  • 3
    Jude wrote on 31st Mar 2011

    Matthew,

    The tension between copyright and individual rights existed long before CC came into being, therefore it simply reflects the artificial nature of Intellectual Property, in my opinion. There is nothing wrong with paying a creative person for their works, or indeed for keeping those in the legal profession well fed / watered, but the whole copyright system could use a good shake up to get rid of the Fear Uncertainty and Doubt that plagues it and, in the absence of anything better, I still think CC is a step in the right direction.

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About the author
Jude Umeh is a member of the UK's Sector Consulting Group in Capgemini's global Telecom Media and Entertainment (TME) community. His areas of expertise include: music, media and digital rights management; and he contributes to thought leadership development and delivery of solutions and services to the stakeholders in these fields. Jude is the author of The World Beyond Digital Rights Management.

See all posts by Jude Umeh

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