Creative Commons

What is Creative Commons?

Creative Commons – www.creativecommons.org - is a web-based „DIY‟ copyright licensing scheme which allows
creators to pick-and-mix conditions to build their own licence for distributing and sharing their content via the
Internet. Its self-proclaimed purpose is to limit the effect of „big C‟ (copyright) and its canon of „All rights
reserved‟ replacing it instead with a new mantra, “Some rights reserved”.
Although primarily aimed at creators who want to share their works, rather than commercially exploit them,
Creative Commons does have the potential to make inroads into traditional licensing models.
Creative Commons is modelled on the Free Software Foundations‟ GNU General Public Licence (GPL), applying its
principles of „freedom‟ to a broader range of creative content such as music, images and websites. Although
commercial re-use can be restricted, its aim is to foster sharing and re-use of copyright material on liberal
licensing terms. Examples of users include composers willing to have his or her composition incorporated in a
short film made by a documentary maker, bloggers wanting to reproduce all or part of other bloggers‟ work,
musicians wanting to allow samples of their music to be incorporated into new another song and academic
institutions prepared to allow online course material to be re-used by other academic institutions.
Who started it?
Creative Commons is a US-based non-profit corporation set up in 2001 by pro „public domain‟ cyberlaw
personalities such as Professor Lawrence Lessig of Stanford University. Funded originally by the Center for the
Public Domain (www.centerpd.org) it is now homed and supported at Stanford.
How does it work?
There are four steps to follow to create and use a Creative Commons licence: (1) choosing a licence (see below);
(2) reviewing the choice of licence by looking at a simple summary (“Human-Readable Commons Deed” in
Commons speak) and the full, legal version (“Lawyer-Readable Legal Code”); (3) marking-up the content on the
Web page in HTML so that the prospective user can link through to the licence and (4) publicising the content in
the Commons‟ searchable Directory.
It is also possible to embed Commons licence claim metadata into the licensed work e.g. within MP3 ID3 tags
(see: http://creativecommons.org/technology/mp3). In this sense it seems that the Commons is attempting to
bridge the gap between mere content licensing and digital rights management.
As well as the generic licence available globally, Creative Commons is working towards implementing country-
specific licences. Lawrence Lessig was recently in London to launch the UK version of the licence, tailored to fit in
with the BBC‟s Creative Archive project whichaims „to create a public and legal domain of audio visual material for
the benefit of everyone in the UK‟.
What are the licence terms?
In building their licence, the rights-holder can choose elements from the following: that the content is attributed
to the creator; that there be no commercial use of the content; that no derivative works based on the content
are created; and, subject to the omission of the restriction on derivative works, the condition that derivative
works are subject to the same licence as the original. The various combinations of these elements result in
eleven different licences, ranging from the most liberal merely requiring attribution to the most restrictive
preventing commercial use or the creation of any derivative works. All share a number of common features,
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however, for example they all contain a core grant of rights to copy, distribute, display, and perform the work,
require attribution and a „no restriction of fair use‟ declaration.
Interestingly, the “Non-Commercial Licence” states that: “digital file sharing shall not be considered to be…for
commercial advantage...”. So by granting a Creative Commons non-commercial licence, the creator is licensing
file sharing within the scope of the licence.
So what’s the problem for publishers?
From one point of view, Creative Commons is to be welcomed. It reminds the Web community that copyright
exists and offers a web-orientated set of licensing tools to control re-use bringing the issue to the forefront of
content producers‟ minds. It makes clear that it requires copyright law to be effective and that is it not
attempting to replace it. In its FAQs, it even states that it cannot collect royalties and contains a link to the
Copyright Clearance Center - http://creativecommons.org/faq).
But is there a sting in the tail? Creative Commons is clearly not anti-copyright per se, but it certainly takes the
view that copyright law is currently weighted too heavily in favour of rights-owners. One of Creative Commons‟
founders, web public domain publisher Eric Eldred, was involved in Eldred v. Ashcroft, in which he and others
unsuccessfully challenged the constitutionality of the US Copyright Term Extension Act before the US Supreme
Court.
The Commons also offers „Founders Copyright‟ which allows authors to limit their copyright protection to 14 or 28
years by assigning copyright to Creative Commons in exchange for a licence for the required term with the work
entering the public domain upon the expiry of the term
(http://creativecommons.org/projects/founderscopyright/). This could have potential issues when content
perceived to have little worth is licensed shortly after creation and subsequently becomes commercially valuable,
resulting in the rights-owner missing an opportunity to finance any future creative work.
Conclusion
Creative Commons brings the concept of copyright and digital rights to the fore. It has ambitious plans to expand
and although, in the main, their licensing scheme will not be suitable for large or commercial copyright holders, it
does provide an alternative which may prove attractive to small-to-medium creators.
Publishers and rights-owners need to ensure that their own licensing strategies do not allow a vacuum to be
created in the online commercial sphere that the Commons licence would be only to happy to help fulfil.
Laurence Kaye
Laurence Kaye Solicitors
© Laurence Kaye 2004
T: 01923 352 117
E: laurie@laurencekaye.com
www.laurencekaye.com
http://laurencekaye.typepad.com/

This article is not intended to be exhaustive and it does not constitute or substitute legal advice,
which should be sought on a case by case basis.
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