A single comment on Rick Anderson’s post earlier this week sent me into the Land of Headslaps, as I realized that something obvious had escaped me about Creative Commons — namely, that it’s probably unnecessary.
Creative Commons licenses depend on copyright in order to exist. In Creative Commons parlance, its licenses are called “public copyright licenses.” A hint of the ridiculous is in that statement, as copyright itself is a public copyright license, with fair use, rules for derivative usages, and so forth all spelled out publicly and copyright statements prominently displayed when applicable. Terms like “public domain” and “fair use” may be debated (the latter far more than the former), but they are clear, human-readable, and free to state openly.
Creative Commons is a layer on top of copyright which costs about $9 million per year to run. It has set up “jurisdictions” as it calls them in many countries, and works to advance its world view through advocacy, partnerships, and outreach. In that way, it is like many other non-profit organizations.
But does Creative Commons make sense?
The answer for some is, “Yes.” But those who answer in the affirmative may not be the authors Creative Commons purports to serve.
As noted above, copyright forms the basis of Creative Commons. Without copyright, no author could choose a license, as there would be no license to grant. In choosing a license, an author is making a statement about what she or he is willing to let others do with or to their published and copyrighted work.
Unfortunately, Creative Commons licenses are relatively opaque and difficult to differentiate for the average user. Ask a researcher their initial reaction to a CC BY vs. a CC BY-SA vs. a CC BY-NC-SA license, and you’re going to be met with blank stares. However, authors tend to understand copyright to at least a functional level — that is, if I have copyright, I have the ability to protect my works from everything except educational and similar benign uses. For wonks like us, we know there’s a lot more to it, but that’s actually a good functional understanding for most academics. Copyright is generally better understood.
Advocates of Creative Commons point to how Creative Commons licenses provider alternatives to copyright, alternatives that fit more with the digital age and the supposed open information movement. However, authors, being a conservative lot and not wanting to fuss over published works more than necessary, tend to prefer restrictive licenses, with Nature Publishing Group noting that its authors preferred the CC BY-NC-ND license 68% of the time. Authors at Cell Press showed a similar tendency to prefer restrictive licenses. In a survey done by Taylor & Francis (chart below), authors preferred traditional, relatively restrictive licenses. Copyright may actually be less restrictive than a CC BY-NC-ND license, but it certainly is not more restrictive. meaning that the first three options in the chart below are functionally equivalent. In essence, the chart below shows a high comfort level with the status quo, and a great level of discomfort with CC BY licenses. Even straightforward copyright, after more than a decade of being vilified in the public square, is preferred by nearly 2:1 in academic circles.
In the world of preprint servers, things are also complicated by Creative Commons licenses. The arXiv preprint server requires depositors to sign an non-exclusive license to publish, obtain a CC BY license, obtain a CC BY-NC-SA license, or put the work in the public domain. The recently launched bioRxiv from Cold Spring Harbor offers depositors a wider slate of options, including no reuse, CC BY-NC-ND, CC BY-NC, CC BY-ND, and CC BY. I asked Richard Sever at CSHLP about their experience so far. It points again to authors preferring more restrictive rights, with 42% granting no reuse, 28% granting CC BY-NC-ND, and only 16% choosing CC BY. As Sever told me via email:
“There seems to be a preference on bioRxiv for ND options. But note these are revisable preprints, not final published articles. It may be that authors just prefer to limit reuse while papers are still works in progress.”
True, but the other data about published works strongly suggest that attitudes don’t change much upon full publication.
The benefits of using a Creative Commons license are elusive. Creative Commons provides no visible value-added service, stating:
Creative Commons makes its licenses and related information available on an “as-is” basis. Creative Commons gives no warranties regarding its licenses, any material licensed under their terms and conditions, or any related information. Creative Commons disclaims all liability for damages resulting from their use to the fullest extent possible. . . . Creative Commons is not a party to its public licenses.
In short, if you use a Creative Commons license, you’re on your own.
Creative Commons does not help authors establish or defend their copyrights. In the US, failure to register your copyright makes it impossible to sue for statutory damages — instead of proving only that someone violated your copyright, you have to prove that you suffered actual damages, a much higher and more difficult legal hurdle. Failure to register your copyright also affects your ability to enforce a Creative Commons license, since it’s only as strong as the underlying copyright. Nowhere on Creative Commons’ site was I able to find this important little bit of know-how. Please prove me wrong.
Some argue that Creative Commons licenses create standard and simple ways to modify underlying copyright so that users can customize the rights they grant. However, Creative Commons licenses are not any more standard than copyright — axiomatically, the simpler standard from which the Creative Commons licenses are derived — and they are not simple.
From the start, Creative Commons licenses are confusing. You can “View License Deed,” a phrase that in itself carries some confusing jargon (“license deed?”). Or you can “View Legal Code,” another bit of jargon. Clearly, there be lawyers. Why not simpler language like, “The License You Post” and “Full Text of the License”? From there, it just gets worse, from “Sui Generis Database Rights” to two full sentences defining “You” and “Your.” The licenses contain anywhere from 40-50 sections you have to read and understand. And, again, because they’re based on copyright, these are 40-50 additional lines to understand, not 40-50 replacement lines.
With all this complexity, it’s not surprising that Creative Commons licenses are long, running about 2,000 words each.
Long, complex, and written by lawyers, Creative Commons licenses are far from “simple and standard.” Instead, they are complicated, subtle, intricate, and obtuse, adding a confusing layer to copyright.
Finally, Creative Commons licenses are versioned. Since November 2013, version 4.0 has been available. There is little information about what to do if you published under version 2.0. Since licenses are not revokable, it’s not clear that version 2.0 can be superseded by version 4.0. So, not only are there complicated licenses, but these licenses change, leaving older licenses in existence. This adds a layer of temporal complexity that copyright law works hard to minimize.
In the era where individuals deal with long, complex software licenses by reflexively accepting them without a second thought, it’s likely Creative Commons licenses receive a similar level of scrutiny — which may be a misleading part of their purported “simplicity.” If this is the case, then their underlying copyright protections are severely compromised not in spite of Creative Commons licenses, but because of Creative Commons licenses. One thing about copyright is that it still commands respect. Convoluted online licenses are another matter entirely. They command nothing but a click to dismiss, or less.
Perhaps this is the intent.
Some have argued that the main reason Creative Commons exists is to weaken copyright law’s effects on information businesses. Just as General Motors wanted cheap gas in order to sell more cars, large information companies want cheap information in order to grow their businesses.
As it turns out, Creative Commons receives significant funding from large information companies like Google, Nature Publishing Group, and RedHat. As explained in Robert Levine’s excellent book on the background radiation of modern information economics, “Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back,” from Lawrence Lessig on, Google’s money is a big part of the story of Creative Commons. Examining the organization’s 990 forms, it appears large donations come in every three years. Between those deposits, the organization receives far less than it spends.
Do scholarly authors need Creative Commons to grant rights out of copyright? I don’t see why, when copyright itself provides most of the standard rights authors are most comfortable with (educational and other benign uses), and when there are other alternatives that are simpler, more straightforward, and less likely to sow widespread confusion.
At the end of the day, if Creative Commons is truly not an organization designed to promulgate the interests of technology companies and Silicon Valley generally, then I’m left asking: What does it do for us? Why do we need it?