Creative Commons License

Creative Commons and “Noncommercial” Use

One of the promises of Creative Commons is the idea that all sorts of works – writing, photography, other visual arts – can be made more accessible via a workaround to state-based copyright law (here in the US, copyright attaches automatically to virtually any independent work of expression – this blog post, your cat photos, my son’s CreepyPasta entries – you name it).

It’s a good idea; the uncertainty of copyright makes it harder to share things than it should be.  For example, let’s say I found a photo online that I wanted to use on my blog.  I could try and contact the photographer and get permission to use it, but that’s an uncertain process at best.  It will take an indeterminate amount of time, with no guarantee that I will get an OK – or even any response at all.  So I’ll move on to a less-ideal choice of photoillustration, or go with no photo at all.

Creative Commons is designed to solve that sort of problem.  If the photographer assigns a Creative Commons license to the photo, I should have all the information I need from the license to know whether I can freely share it on my blog and what conditions, if any, apply (for example, attribution, restrictions on derivative works, etc.).

In practice, however, Creative Commons doesn’t work as well as it could.  There are a number of different license types, with different conditions and limitations on use.  And as Glyn Moody at Techdirt points out, license types can be freely changed by the creator of the work, leaving a previously-permitted use twisting in the wind (although CC licenses are non-revocable, it can be difficult to prove that use was under a previous license).

The biggest problem, however, is the fact that many Creative Commons licenses have limitations to noncommercial uses.

Why is this a problem?  Because very, very people actually understand what this means.   Even most attorneys don’t understand what “noncommercial” means.  And this leads not only to hurt feelings (and more restrictive licenses) when a use is made that the creator doesn’t care for, but also a lot of uncertainty among those who would otherwise use the work.

Back to my example of clipping a Creative Commons-licensed photo for a blog.  Let’s say the license is “CC BY-NC” – a widely used license permitting sharing (with attribution) and derivative works but restricting commercial use.  Well, no problem – my blog is noncommercial, right?  But what if my blog has advertising? What if it has a Cafepress store, Amazon widget, or some other form of merchandising?

What if I’m writing for the New York Times?

The answer is that – in the U.S. at least – none of these examples represent commercial use.  The fact that a publisher has a commercial motive does not mean that everything published is likewise commercial.  “Commercial” means that the work itself is resold or incorporated into something that is for sale (although there are plenty of exceptions even then, starting with fair use).  This is a basic legal principle, and it’s been reinforced time and time again.  See, for example, the Dex Media v. City of Seattle case I wrote about earlier.  Or the Browne v. Avvo suit filed by an attorney upset over his rating right after Avvo launched in 2007.  Or the latest Lindsay Lohan lunacy, involving a suit (tossed yesterday) over a reference to the troubled actress in a Pitbull song (“locked up like Lindsay Lohan”).

The fact that this principle has to be so often reinforced shows how lacking in fluency many are when it comes to the distinction between the commercial interests of a publisher and the noncommercial nature of that which is published.  And based on my anecdotal reading around this issue (and talking with many, many attorneys confused about this point), more people than not believe that “noncommercial” means that the work in question will only be used by a noncommercial entity.

So the CC BY-NC license is a half-measure that probably leaves few really satisfied.  I suspect all would be better off choosing either to stick with full copyright protection (if the thought of having your work published in for-profit media offends) or go with a wide open CC BY license – or even renounce all copyright protection entirely with a CC0 license.  Creative Commons should also consider providing more guidance around exactly what “noncommercial” means – and what it doesn’t mean.

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