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?
44 Thoughts on "Does Creative Commons Make Sense?"
Interesting criticisms of CC. I was not clear on this point and was wondering if you could clarify- do you think CC and CC-like licenses are redundant and that anything an author might need is covered by copyright, fairuse, and public domain? So we don’t need any additional licensing.
Or is it specifically CC that is the problem e.g. if someone came up with a simple to understand, you don’t need to be a lawyer, short, addressing all the issues you have raised (maybe others not raised), etc. sort of license than you think it would be good to have a set standard of licenses that people can apply to their work to give or take away rights of use?
Essentially, do you think CC is completely useless or does it just need to be done better? Or is a bit of both on a sort of case by case bases?
To me, Creative Commons has a very unclear value proposition, and I can’t fathom why anyone would use it as it stands now. It increases the complexity of copyright without providing authors with any additional benefits, and may (either purposely or accidentally) tap into the mindset that licenses are less enforceable than copyright, increasing the difficulty of authors enforcing their rights.
Each license has its problems, as well. CC BY is the most criticized, and for good reason. Two good critiques are here, one dealing with information misuse, the other with how CC BY shifts financial burdens to academia:
After reading all this, what do you think? Is Creative Commons necessary and just poorly done? Or would you go further?
PS I should add, CC-By would also let publishers protect the work of the authors that publish with them as it requires citation, which includes them. So authors need not always worry about enforcing CC-BY as publishers can do that like under copyright. Though without the financial incentive I don’t think many publishers would care to enforce that.
To me, Creative Commons has a very unclear value proposition, and I can’t fathom why anyone would use it as it stands now.
It seems to me that one clear value proposition CC offers is to the author who wants, clearly and easily, to signal that his work is freely available for reuse beyond what’s allowed under Fair Use. While the whole panoply of CC options is indeed kind of confusing, it’s simple enough to slap a CC-BY logo on your work if you wish, and that signals pretty clearly to the world that you’re offering your work for essentially unrestricted distribution, reuse, and repurposing.
Whether CC’s overall value is sufficient to justify the cost of the whole enterprise is a different question, one that I’m not qualified to answer.
Would it be easier to just declare the work to be in the Public Domain? And how would one go about doing that?
But what I’m asking is whether there’s an easier way to put something in the Public Domain without using a Creative Commons license.
This work is Public Domain.
That simple, kind of. In the USA you can single copyright with (c) and you do not have to register and it works similar for public domain. There is no longer the requirement to register copyright, though you still can.
The problem comes with the fact that there are 200+ countries/semi-countries in the world with different laws.
That is the advantage of CC, the foundation has gone to most countries and ensured that it works there. It is one of the advantages of CC it is a universal (well close to it) way of dealing with copyright issues. On the other hand public domain, fair use, and public domain differs from country to country. In the UK you get copyright for effort put into making something not the uniqueness of the expression. New Zealand has shorter copyright protection, in terms of years it applies, than other places. I can go on but you get the idea.
CC has the advantage of being understood almost anywhere.
As the author, you could simply state in the manuscript, “This work is in the public domain.” Many journals do this either on an article-by-article basis or as a general policy for works authored by government employees. Creative Commons wasn’t around then, yet this somehow worked. Another good point about it either being over-engineered or merely superfluous.
I don’t have the citations, but there were strong arguments made in the late ’90’s by law faculty that merely stating “this work is in the public domain” does not achieve what it appears to us to achieve. Hence CC-0.
Not if the author/creator wants to retain her credit.
I can think of several examples but let me just give one and it ties in with the information misuse. Lets say there is an academic and he wants his work to be read more widely (jury is still out on if OA works to increase citation, so lets just assume it is a peacock effect and he/she wants their peers to see it). The audience is their peers. I know lots of people say the public benefits and they do but actually OA mainly helps academics as most of their peers can’t actually read their work. Part of peacocking in academia is getting credit for work. So he/she goes with CC-BY because that requires credit, which is want they want.
There are two other assumptions I am going to make which can change the equation under different circumstances. One, is that the academic does not care about getting paid. Publishers care but their share or royalties is peanuts compared to what they will make becoming a full professor. So in game theory it is not worth his/her time to collect royalties. He/she might get cents on the hour trying to hunt down people to pay for posting their work. Were as, the reward for a paper being well known can be $10,000s over a lifetime.
Now I realize that this only works if people are afraid of getting sued or take-down notices. Lots of shady publishers who would do that sort of thing, republish papers without citing, are not the sort of people who care about being sued. Though the same is true of normal copyright.
With public domain you don’t have this option to sue no matter what. CC-BY gives the academic some more options in certain cases, but certainly not all. Would he/she care to use them, it all depends. Copyright violations carry heavy penalties and so there are lots lawyers that would line up if lets say Walmart miss-used your image/work. Small time predatory journals it may not be worth the effort. HOWEVER, the same is true with normal copyright.
So in that example the academic is leaving themselves a bit of insurance with CC-BY over public domain. How often will they use it? I don’t know. Is it worth 9 million a year? I don’t know. Is it worth the confusion? I don’t know.
The second article seems to deal with OA over CC, even though it talks about CC. CC helps facilitate OA but I think the issue of financing is too tied into OA issues and is different than CC. I am not sure OA and collecting reprinting fees is compatible. So I am not sure how much CC has to do with that. It is more a method than a cause, if that makes sense. If it was in public domain over CC for OA publishing I think the problem raised, finding ways to fund publishing, would still stand.
The issues of complexity of the licenses, costs, etc. that you raise does make me wonder about the utility of CC. While I would like to say that I want my work credited, as required under CC-BY I am not sure I will ever need it. Simply putting my work in public domain might work just fine. So thank you for raising the issue of comparing CC-BY to public domain.
This is turning out to be a much longer comment than I expected. I could go into the benefits of SA too or why I think NC is complete crap. Also, who benefits from them both but that would probably have to be its own blog post.
So to answer you question. I can see why some people might want to use them but I am not sure there is a blanket they are good or bad, probably case by case bases taking into account benefits and all of the problems you raise.
Doug: I know of no one ever earning $10,000 as a result of royalties for an article published in a journal.
If you live in a country where “moral rights” exist as part of copyright law, you can sue for violation of those rights even if you declare your work to be in the public domain. How does CCC deal with this major difference between countries’ copyright laws?
I am guessing you are UK based- that being the country I am most familiar with that has ‘moral rights’ CC does what is called porting. That is they make a licenses available in the local legalize. Though version 4.0 is supposed to be designed in such a way that this is no longer required. I haven’t had the time to look at 4.0 to see how it deals with such moral rights. 4.0 would be the place to look and see how it deals with that.
One way they could handle this (note I haven’t looked in detail at the CC0 licence) is that they could include language such that you either give up your rights, or agree not to exercise those rights against those people using the work under the licence. This came up recently because NPG require exactly this from those that submit works to Nature – either you waive all moral rights or agree not to enforce/use those rights as part of the deal with NPG to publish your paper.
(Having now had a quick look, this is exactly what the CC0 licence does. If you legally can’t waive all your rights, the author grants broad non-exclusive, royalty free, etc usage under copyright to the user and agrees not to exercise any rights remaining [that legally they can’t give up] under the relevant jurisdiction.)
This is the value CC brings – easy ways to either waive rights, agree not to use them, or licence reuse such that people don’t need to contact you to licence a work for use so long as what they want to do with it is in line with the CC licence the author has chose.
New rules always create confusion but that is not a strong argument against them. The legal complexities of CC reflect the complexity of copyright. That the CC licenses are being used suggests that they are useful. The question is how? Claiming they are not useful is unlikely to be correct. Perhaps the usefulness is social not individual, so people are using them to do good. I take no position on this.
Kent: I find it interesting that the info companies like Google are all for this sort of thing yet are vehement in defending their code!
Creative Commons builds on Copyright and cannot remove rights already granted by the law. So this statement is incorrect: “Copyright may actually be less restrictive than a CC BY-NC-ND license…”
Also the argument that the organization is funded is uninteresting as the licenses are free to use by anyone who wants them. If the licenses displease you then don’t use them.
The work of translating CC licenses and ensuring their legality in all the separate jurisdictions is done by volunteers who are not paid by Google.
The fact that so many users (individuals and organizations) have found the licenses useful surely indicates that they serve a valid purpose.
That many find the license texts complicated is also a weak argument. I find reading my pension rules complicated but this does not make them unimportant or make them less useful.
I have long wondered why Creative Commons pushes CC-BY as the “Free Culture License” in the Choose License interactive form at http://creativecommons.org/choose/. If I choose CC-BY-NC, the label changes to “This is not a Free Culture License.” This seems to be a bit of ‘newspeak’ occasioned by the funding that CC receives.
That does seem like a silly label! But the point they’re trying to make is an important one. The “Free Cultural Work” label means the license lets people do whatever they want with the work, the other licenses restrict what people can do with the work. That is an important distinction, although I would agree that they could have chosen a different way to make it.
Frankly, being an author, not a publisher, IMHO, you are all holding the wrong end of the stick. The only situation in which I have ever cared in the least tiny bit about what copyright is on something, is when some publisher tells me that I need to get permission for reprinting a figure, or some such thing. Then I do fill in some random painful forms at a the copyright clearance center, sometimes pay a few cents, and then someone waves a magic wand that I don’t understand or care about, and I go on about my business. As for copyrights on my own works, the only time I even think about this is when a publisher tells me that I have to either assign or accept, or whatever, their favorite copyright method, in which case I click “ok” and go on about my business. Given the complexities of science, this is all nonsense. Publishing in the top journals and conferences (and in each field everyone knows which they are — random metrics aside, which also no working scientist cares at all about) is WAY more important than anything else, aside from the science itself. All of the rest is noise. (And, yeah, okay, some survey got some authors to make a choice, but I do surveys too, and know perfectly well that there’s a difference between what someone tells you on a survey that they think, and how they actually think (or, more likely, don’t think) when they are faced with having to just click “ok” on the publisher’s web page after having filled out fifty forms to get their damned paper in print.)
So, you wouldn’t care if an article of yours got republished in a so-called predatory OA journal and the publisher changed the title of the article or otherwise altered its content? What about if it were poorly translated so that the meaning you intended to convey was changed? How about ifit were put into an anthology that sold exceptionally well and earned its publisher millions of dollars, none of which was shared with you?
A. Mostly I don’t care. Because, B. This happens all the time having nothing to do with the paper per se. That is, because I can’t copyright the idea, only the specific form of the idea, unless I patent it, which is a much more fraught process than copyright, no one is going to be making millions on my paper, but rather on my idea. And this has already happened, and even then, I only slightly care. Furthermore, C. The value I get from my publications is from people I care to get value from, and they know to credit me, and do, regardless of copyright. You people have a really broken view of how scientists think.
And, BTW, having my work “poorly translated so that the meaning [I] intended to convey was changed”, aka. “misunderstanding me” is EXACTLY what copyright law forces everyone in the world to do, but they give this the genteel term “paraphrasing”. So the only thing that CC does for me is to possibly help me save someone else like me the trouble of having to waste a bunch of time and cope with a bunch of painful forms at the copyright clearance center.
Close paraphrase can also be a copyright violation, as it was considered to be in the suit that J.D. Salinger brought against an author who published a biography about him.
You’ve greatly oversimplified what happened in this case:
moreover, it’s a deflection; irrelevant to my main point, being that scientists in practice don’t care about the copyrights on their papers, and only vaguely think about them when they have to, as when they get in their way, or when faced with a choice, such as “which cc license do you want”, as someone else has pointed out in these comments someplace, it’s, like: “uh, wtf, I don’t know — whatever everyone else does, I guess”. Usually, we just do whatever the journal tells us to do, and make sure that we’re trying for the leading journal, … and then we get back to the important part of our work, which is new science.
Of course, I don’t speak for all scientists; I only speak for myself, but I’ve actually never in 30+ years of doing science ever even once had a conversation with another scientist over copyright issues (aside from being annoyed at having to send checks for $1.05 to the ccc over stupidity).
Now, also, let’s not confuse copyright with plagiarism. I care slightly more, although not all that much anyway, about someone plagiarizing my work. But suing them for copyright infringement really isn’t the first, nor the last, nor, actually ever anything that would come to my mind in that case. Maybe a letter to the editor, or to the author, or more commonly just grin and bear it and get on with my work.
The CC licenses aren’t alternatives to copyright, they are simply copyright licenses.
“Copyright may actually be less restrictive than a CC BY-NC-ND license, but it certainly is not more restrictive.”
Assuming by “copyright” here you mean normal “all rights reserved” without any other license, I don’t think this can be true. You can’t publish something in a more restrictive manner than the normal “all rights reserved”, at least in the US. BY-NC-ND, in any case, allows me to make copies of your work and distribute them as much as I want as long as I’m not doing so commercially or making derivatives/etc, which copyright wouldn’t otherwise allow me to do, so if that’s what you meant by “copyright” then it certainly *is* more restrictive than BY-NC-ND.
“You can’t publish something in a more restrictive manner than the normal “all rights reserved””
Sure you can. Many publishers license e-journals to libraries with restrictions prohibiting ILL, which an exception is built into the copyright act.
Good point; you can always use contracts that further restrict what you can do. I think my point remains, though.
Interestingly, this language does not appear in the most recent versions of the CC-BY license:
“Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation.”
That was the one part of the license that provided some minimal protection for the integrity of a work’s reproduction. Of course, it had its limits too: e.g., it might protect against a translation that was intentionally meant to distort meaning, but probably not against one that was poorly done with on malice intended.
You can view the full Taylor & Francis Open Access Survey referred to in this article at http://www.tandfonline.com/page/openaccess/opensurvey, including an infographic of the key findings.
eppur si muove!
Nearly 450,000 works verified as licensed under Creative Commons by 2011, see http://wiki.creativecommons.org/images/b/b7/Metrics_Updated_Monthly.png
Slightly off point here, but I’ve read a lot of comments about publishers and copyright over the last few months on here, and I just wanted to say that I work for an independent academic publisher of books in the Humanities and Social Sciences (no journals) and we never, ever, ask authors to sign away their copyright. We only ever ask authors to give us the exclusive licence to publish. This means that we can’t republish anything in another format (for example, in an anthology), without the authors’ permission. That the author retains his or her copyright is hugely important and is something that really matters to us.
And we have authors, all the time, coming to us for help in enforcing their copyright, because they’ve spotted that someone has reused their work without permission, or plagiarised them, or made libellous comments about them. I think perhaps there is a huge difference between those authors who invest years in writing a major book, which they understandably feel incredibly protective over, and other authors in other fields who produce numerous articles to keep up with current research, who perhaps don’t feel quite the same way about their own work.
Many journal publishers follow a similar policy, leaving copyright with the authors and having them sign an exclusive license for the article. This does leave some rights in the hands of the authors, but there is some debate over the significance of those rights, and it really depends on how restrictive a license the journal requires.
Post 1978 it doesn’t make a lot of sense to talk about THE copyright, since the 1976 Act recognized copyright to be a bundle of rights, not one single entity that could be “owned” as such. Yes, all the rights in the bundle are initially controlled by the author, but when the author transfers some of those rights on an exclusive basis to another entity, there is not something called THE copyright left in the author’s possession, but only the remainder of the bundle of rights not transferred. So, I wonder how this reality grounds an idea that somehow publishers are respecting authors’ rights by allowing them to retain “copyright.” By the way, plagiarism is not illegal, only copyright infringement is. And of course libel has nothing to do with copyright.
Of course you’re right that copyright is not a single entity. Though the various elements in the ‘bundle’ certainly can be owned. Anyway, all I was trying to say was that publishers do, regularly, help authors to defend their rights, however you might define them.
Interesting point, Sandy. Perhaps we should talk about copyrights not copyright. In that regard I happen to be doing research on the US Department of Energy’s emerging Public Access program. DOE claims to have an irrevocable license to collect and publish the accepted manuscript of any article that merely includes a finding from any research they funded. So as soon as such an article is written the bundle of rights is broken up. I consider this to be wildly overreaching but that seems to be DOE’s position.