This is the story of a surprisingly difficult journey: my attempt to understand* whether it’s possible for a copyright holder, once having made her work available under a Creative Commons (CC) license, to revoke the license and then distribute the work under different terms (or halt its distribution altogether).
At first blush, the answer to this question would seem simple. CC licenses are irrevocable – it says so right in the legal text of each license, as well as in various FAQ and summary documents provided by the Creative Commons Organization (CCO). This means, obviously, that once a copyright holder has applied a CC license to her work, she can’t later remove the license and restrict access to the work.
However, it turns out not to be quite that simple, because that’s not all the license text says. It also indicates that “the Licensor may… offer the Licensed Material under separate terms or conditions or stop distributing the Licensed Material at any time.” And according to the CCO, it’s possible for a copyright holder to “(change) his or her mind and stop distributing under the CC license terms.”
This brings up some fairly mind-bending questions. For example: given that the CC license represents an irrevocable contract between the copyright holder and the public, and given that there is only one public, to whom could the copyright holder subsequently “offer the Licensed Material under separate terms”? (Maybe to someone who isn’t a member of the public?) And given that free distribution is a core right provided by all CC licenses, what could it mean for the copyright holder to “stop distributing” the licensed work? (Does this mean only that the copyright holder is not required to participate actively in distribution? Could anyone reasonably believe that the license would entail that requirement, absent this language?)
So the language in both the licenses and the CCO’s explanatory documents suggests two apparently contradictory realities:
- Once applied, a CC license cannot be revoked;
- After a CC license has been applied to her work, the copyright holder may stop distributing her work under that license and start distributing it in some other way (or not at all).
How to resolve this discrepancy?
Before outlining what I learned, let me take a moment to share what the experience of trying to answer that question was like. It was, in a word, fraught. I should acknowledge that at the beginning of this process, I wasn’t posing a question as clear and straightforward as the one above – because while I could see that there was an issue to be resolved, I wasn’t yet sure exactly what the issue was. Initially I was under the impression that license irrevocability was a function of Creative Commons policy – which, of course, was incorrect, as was quickly (and gleefully) pointed out to me. Irrevocability is, in fact, baked right into the terms of the licenses themselves. But since the opposite of irrevocability also seems to be baked into the license terms, it became clear that the reality is more complicated and that the implications of this complexity could be significant for authors and other copyright holders.
Looking for some expert help, I posed questions on both the Read2.0 and the LIBLICENSE listservs. The response to my queries was swift and, shall we say, mixed. I won’t go through the tick-tock of the whole discussion because it was long and dense and multidirectional. But I will say that many people were hugely helpful to me as I tried to think/write my way through the thickets of apparently (and sometimes actually) competing truths to a place where the contradictions were finally, I think, resolved. A handful of my interlocutors were less helpful – I did get sneered at, condescended to, yelled at (“WRONG WRONG WRONG” was my favorite response), and accused of trying to undermine the whole open licensing regime. But such reactions are par for the course when one raises questions related to open access and open scholarship, and I’ve gotten more or less used to them – and though the process was occasionally a bit painful, it was in the end tremendously useful.
Anyway, after days of what was sometimes labyrinthine discussion and debate (AND YELLING), I was finally able to boil the issues down to two:
Issue #1: What Exactly Is Licensed under CC?
Early in the conversation it became clear that the resolution to the apparent contradiction in license terms likely hinged on a very important question: does the license apply to the intellectual work itself, or does it apply only to copies of the intellectual work?
If the latter, then there is no real contradiction in the license terms: each copy of the work has one license or another attached to it, and that license is irrevocable, whatever it may be for each copy. If I publish a textbook under a CC BY license in 2019, copies of the work that are created under that license are tagged as CC BY copies and are forever available under that license. However, in 2021 I could decide not to continue distributing the textbook under CC BY, and could switch, say, to CC-BY-NC. Copies made subsequently would be subject to that license rather than CC BY (unless, of course, they were copies of the original CC BY-licensed manifestation).
Alert readers will already be seeing problems with this interpretation, though. For one thing, in this scenario, old CC BY copies would be competing in the marketplace with newer CC-BY-NC ones. (This might represent a logistical annoyance, but if it’s the copies that are licensed rather than the underlying work, and if the licenses are irrevocable once applied, then it’s nevertheless a legal possibility.) A more significant objection, though, arises from the language of the licenses themselves, which all refer to the licensed entity as “the work,” not copies of the work. I raised this issue with one expert informant, whose position is, in fact, that it’s the copies and not the work itself that are licensed. Her view was that the word “work” in the formal license text may be intended more colloquially than one would normally assume.
But what if the license means literally what it says (as contracts tend to do), and what’s licensed is the underlying work itself? In that case, the resolution would seem to be that since CC licenses are irrevocable, the copyright holder is permanently stuck with whatever CC license is applied in the first instance: if I apply a CC BY license to my textbook, the terms of the license require that all future manifestations of my textbook be distributed with that license. Which, if true, brings us to the second issue.
Issue #2: How Does Dual Licensing Work?
A couple of people (including several current and former higher-ups at the Creative Commons organization) expressed the view that while it’s not possible to revoke the CC license originally applied to a work, it is possible to apply a different license to the work in addition to the license previously applied. What this creates is a situation in which the work is available under both licenses, and members of the public can simply pick the terms under which they want to use the work.
But this struck me as fundamentally incoherent, legally speaking. So I responded by asking this:
Suppose I write a textbook and make it available under a CC BY license. Two years later, I decide to make it available under a CC-BY-NC license, which is more restrictive than CC BY. In that case, does the application of the CC-BY-NC license create for the public a new restriction on commercial reuse of the work?
- If it does, then in what sense is the CC BY license still in force?
- If it doesn’t, then in what sense have I actually applied a CC-BY-NC license? (In other words, if the public isn’t required to abide by the restrictions of the second license, but has the option of simply ignoring it, then how is it true that the license has been applied, as a matter of legal reality?)
(Please note that simply saying “the work is now available under two licenses, and the public can use the work under either license” doesn’t answer my question; it’s just a restatement of the proposition that led to my question.)
After further back-and-forth, it became clear that the CCO (or at least these CCO executives) see it this way:
- The CC license applies to the work itself, and therefore to all copies of the work made after the license is applied;
- The copyright holder can apply a second license, and it will affect the public’s rights only if it expands them;
- Technically, the copyright holder can apply a second license that is more restrictive, but it will have no legal effect, since the original license is already irrevocably attached to the work.
So in other words: if I write a textbook and publish it under a CC BY license in 2019, and then change my mind and apply a CC-BY-NC license to it in 2021, the second license has no effect on the public’s rights with regard to my work. However, if I apply a CC-BY-NC license in 2019 and then change my mind and apply a CC BY license in 2021, the second license does affect the public’s rights – because in this case, I haven’t tried to revoke any rights previously granted. I’ve only expanded them.
This strikes me as the most obviously reasonable interpretation of the license terms. As is so often the case after I’ve spent a lot of time puzzling through a problem, the solution has ended up seeming pretty obvious – but given how many differing interpretations were offered to me over the course of my many conversations, I feel fairly confident that the question itself wasn’t simply silly. And other readers may have entirely different interpretations, of course, which would be interesting to see in the comments.
The biggest takeaway? I’d say it’s the message communicated by the Creative Commons Organization itself on its FAQ page: “You should think carefully before choosing a Creative Commons license.” (Assuming, of course, you actually get to choose.)
* This essay is an expression of the author’s personal opinion; nothing in it should be construed as legal advice.