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Ian McDonald

February 2006

The licences promoted by Creative Commons ('CC') are one way people can manage copyright in what they create. However, while there is no right or wrong way of dealing with copyright, in my view the CC licences are not among the better licensing options for visual artists.

Not only are statements by CC on its website misleading as to the actual legal effect of four of the six licences, but I have misgivings about the assumptions on which CC operates, and the application of the CC licences to the creative arts generally, and to visual arts in particular. CC licences may be attractive to academics, hobbyists, educators and organisations (for example, if they want to try to encourage wide distribution of information; where they expect to be able to use similarly licensed material themselves; or as a 'loss-leader' to attract people to commercial or other services). However, in my view, the licences offer a very poor fit with most working artists' personal and professional needs.

In short, be wary of using them.

'Creative Commons'

CC licences are among a number of licences and licensing systems referred to as 'open licences'.[1] Such licences originated with computer programmers who were happy for other programmers to use their code and make improvements without permission, so long as they adopted a similarly 'open' approach. During the late 1990s, people began to look at licensing other types of material along similar lines.[2]

Wikipedia states that 'the intention [behind CC licences] is to avoid the problems current copyright laws create for the sharing of information', and that efforts to create open licensing systems:

'are done to counter the effects of the dominant and increasingly restrictive permission culture pervading modern society; a culture pressed hard upon society by traditional content distributors in order to maintain and strengthen their monopolies on cultural products'

The views that copyright is 'problematic', and that we live in 'an increasingly restrictive permission culture' are fleshed out in more detail by Lawrence Lessig, founder and chair of the Creative Commons organisation. Lessig believes that we have moved towards 'a culture in which creators get to create only with the permission of the powerful or of creators from the past'.[3] CC licences represent the means by which Lessig and the CC organisation hope to effect a move away from such a culture.

Many of Lessig's propositions, however, do not bear close scrutiny, either in themselves, or when they are applied to the needs of practising artists.[4]

For example, his proposition that corporations control creativity has only a limited application in the visual arts, and then only if that creativity takes a certain form, such as culture jamming. However, to the extent that culture jammers face difficulties using corporate-controlled material, it is difficult to see how CC licensing will assist: the images which a culture-jammer is most likely to want to re-use and re-contextualise—corporate logos, Disney characters, and Barbie dolls—are the least likely ever to be licensed under a CC licence.[5]

Note also that the general statements used by CC to promote its licences—such as that thoughts are 'built on the shoulders of other thoughts'—confuse the issue of what is and is not protected by copyright law: nothing in copyright law prevents you using 'thoughts', or ideas or information or even styles.

Lessig has also been criticised as having 'a miserable, cramped view' of culture and that, for him, culture is Òvalued only in terms of its worth for building something newÓ.[6] Certainly it is implicit in the licences that anything is material which can be 'improved' by others—a privileging of the most recent over anything older than itself. The application of this to works which a working artist otherwise believes are finished is debatable.

Particularly for the visual arts, there are also real issues as to the extent to which the people who rely on CC licences really are 'creators', rather than hobbyists, businesses and organisations. By licensing under CC licences, you may not really be contributing to cultural development, but merely to a world-wide pool of clipart. You are hardly striking a blow for a new world cultural order by giving the old one a free ride at your expense.

Indeed, the one licence which a community-arts-oriented practitioner might be willing to grant—a licence to permit copying and modification only if their work is transformed or utilised in some new, creative way—is simply not available as a CC licence.

Conceivably a practising artist might be tempted to try out a CC licence for a representative artwork or two—perhaps as a 'loss-leader', or for some possibility of publicity.[7] However, if you are a practising artist, I would not recommend that you do this:

• as a matter of course;
• without being able to clearly articulate to yourself what benefit you are hoping for, weighed against any likely detriment; and
• without reading and understanding the 'legal code' of the licence you select.

The 'Legal Code'

The CC website sets out a 'Creative Commons Deed' for each licence.[8] The Deed is stated to be a 'human-readable' form of the relevant licence, which is referred to as the 'Legal Code'. However, both the Deed and the symbols used as shorthand for the various licence components are misleading when it comes to four of the licences—the ones that are supposed to prohibit commercial use or 'derivative' works.

The Deed itself is stated to have 'no legal value, and its contents do not appear in the actual license'. This comment is truer than was presumably intended: each of the so-called 'NoDerivs' licences elaborately define what constitutes a 'Derivative Work', but the body of the Australian licence fails to prohibit the person relying on the licence from making such works.

Perhaps the person or committee which approved the final draft assumed that copyright law operates in Australia as it does in the US. It doesn't. Under US law, copyright owners have a separate right to authorise the making of derivative works, but under Australian law, they do not: owners of copyright in musical, dramatic and literary works do have a tightly defined right of 'adaptation', but there is no equivalent right relating to artistic works.[9] In other words, having given people permission to use your work under a CC licence, you couldn't generally stop them making ÒderivativeÓ versions even if you chose one of the 'NoDerivs' licences.

Further, when it comes to the 'NonCommercial' licences, the prohibition relates only to uses of the relevant work 'in a manner that is primarily intended or directed toward commercial advantage or private monetary compensation' (my emphasis). This wording still allows—without payment—any business or corporation to use your work in items such as corporate gifts, calendars, publications and websites, and in any other way that might only secondarily achieve a commercial advantage. Nonetheless, in each of these situations, I can see no reason in principle why, as a general rule, practising artists would want to volunteer effectively to subsidise such commercial uses of their work.

While talking about money, it's also worth noting that the licences have other potential financial downsides.

Visual artists don't make a great deal of money from their art. Practising artists should therefore be wary of granting free licences to people or organisations that are perfectly capable of paying a reasonable royalty or licence fee. By way of example, none of the CC licences allow a practising artist the opportunity to charge for (or prevent):

• a well-endowed private school having copies of your work printed or painted to give as presents;
• a businessman or a politician using your artworks on her or his Christmas cards;
• a local council having someone copy your work as a mural or sculpture;
• an organisation (whose objects you may not support) using images you have created on brochures, banners, posters or in advertising.

In all of these cases, you lose a potential licence fee; in some, you also lose the ability to charge for doing the work yourself.[10]

Further, under the Australian Copyright Act, educational institutions and governments already have various rights to use copyright material. They pay for these privileges, with money going to the relevant copyright owners through various collecting societies, including Copyright Agency Limited and Viscopy. If you license your work under any of the CC licences, you are not entitled to any of these monies. Further, as the amount educational institutions and governments generally pay under current agreements relates to the number of students or employees they have (not the number of items they copy), your gesture of distributing your work with a CC licence neither benefits you nor the educational institutions or governments.

In other words, don't be misled by the fluffy 'human readable' code in the various Deeds: the important detail is in the wording of the licence, just as it is with any licence you might consider from a poster manufacturer, a publisher or a greeting card company.