Creative Commons licenses are a new form of copyright protection that allows copyright holders greater autonomy in selecting how others may use their works. They arose in response to the special challenges that the proliferation of the internet has brought to intellectual property law.
For decades, intellectual property has been treated as a form of quasi-private property. A legal regime typically grants a short-term monopoly on the use and dissemination of original work to its creator. After a specific period of time, the work then passes into the public domain where anyone can use the work for any reason.
As long as work was costly to produce and distribute, this format worked well. But the internet, with its widespread user base and near-instant dissemination capabilities, has led many to rethink long-standing intellectual property rights frameworks. In order to better fit the evolution of information technologies over the past 20 years, the main goal of advocates for IP-rule changes has been for more flexibility in the use and reuse of original work in the internet age while maintaining the incentive to produce original works.
Creative Commons Licenses: What Are They?
Creative Commons licenses (CCL) are a new form of copyright protection that allow copyright holders autonomy in selecting how others may use their works.
Creative commons licenses are a middle ground between the strict, permission-only copyright ensconced in law and the no-rights-reserved public domain. CCLs allow copyright holders to specify a set of conditions under which the reuse of their works is permitted without their direct permission. Within these standardized conditions, free use of copyrighted work is allowed. Violations of the conditions result in a breach of copyright.
The Origins of Creative Commons Licenses
Section 8 of the U.S. Constitution explicitly grants Congress the authority to enforce limited, exclusive rights (read: a limited monopoly) to creators of original work. As the clause specifies, the reason for doing so is to provide an incentive for individuals to create original works or inventions. The term of limitation is also critical, however. By submitting a work to the protections of U.S. law, creators are implicitly agreeing to trade exclusive rights over a short-term horizon against a long-term requirement that the protected work be available to anyone for any use. This latter stipulation characterizes the “public domain” — that is, the collection of creative works that anyone can use for any reason without the permission of the creator.
Around the turn of the last century, increasingly widespread access to the world wide web brought pressure for legislative overhaul of U.S. copyright laws. In 1998, Congress responded, passing the Sonny Bono Copyright Extension Act (spearheaded by the late representative). The act essentially added 20 years to the previously existing copyright term limits. The result was that the total period of exclusive rights protection became the life of the creator plus 70 years. The act also extended the period of protection for works copyrighted prior to 1978 from 75 to 95 years.
The latter provision stirred controversy. Because the first instance of Mickey Mouse had occurred in 1928 and the 75-year copyright on Disney’s iconic (and lucrative) mascot was set to expire in 2003, Disney —along with Viacom, Universal, Time Warner, and every pro sports league — heavily lobbied Congress to pass the 1998 act. At the same time, many online publishers had been preparing to disseminate a host of famous copyrighted works due to enter the public domain after their 1976 copyright extensions ended. After the “Mickey Mouse Protection Act” (as detractors called the legislation) passed, these internet publishers banded together to bring a countersuit, claiming that it violated the Constitution on free speech grounds. Lawrence Lessig argued the plaintiffs’ side of the case and lost at the Supreme Court in 2003.
During trial preparations, Lessig and his client, an online public library owner named Eric Eldred, had the idea that copyright licensure needed to be rethought. Lessig was particularly bothered because the 1998 act further extended copyright limits on works that were already copyrighted. He wondered how extending existing copyrights could provide an incentive to create new works. Lawrence and Eldred came up with the notion of a more fluid copyright regime that allowed creators more options for control over the use and reuse of their original works. Thus, the creative commons license was born.
How Does a Creative Commons License Work?
Lawrence and Eldred designed creative commons licenses (CCL) to be a middle ground between the strict, permission-only copyright ensconced in law and the no-rights-reserved public domain. CCLs allow copyright holders to specify a set of conditions under which reuse of their works is permitted without their direct permission. Within the confines of these standardized conditions, free use of the copyrighted work is allowed. Violations of the conditions results in a violation of copyright.
The four stipulations that a copyright holder can combine to form a CCL are:
4 Stipulations of Creative Commons Licenses
- Attribution (BY) — Anyone can copy, distribute, display, or perform a work or make derivatives of it so long as they credit the original creator.
- Non-commercial use (NC) — Same rights as attribution, but only on condition that the work be used for non-commercial purposes.
- No derivative works (ND) — A user can only copy, use, distribute, or perform the original work verbatim.
- Share alike (SA) — Distribution of derivative works can only occur under a CCL with stipulations identical to the original.
There are 16 possible combinations of these stipulations, but some combinations don’t make sense (e.g., a license cannot stipulate both an ND and an SA clause since the SA clause pertains solely to derivative works). Also, nearly every license requires attribution to the original copyright holder as of 2004. This leaves six combinations of stipulations on which a copyright holder can establish a CCL.
The simplicity of CCLs not only applies to the uniformity of their permissions, but also to their translatability. Every CCL comes with three “layers” of readability: a legal-code layer underpinning the license for use by systems of justice, a “human-readable” layer that describes the license in terms understandable by an average human reader, and a “machine-readable” layer containing metadata about the license so that search-engine algorithms can easily identify it based on its characteristics. These layers allow CCLs to be embedded into user-generated content platforms like Wikipedia, YouTube, Flikr, and others and allow users to easily search and filter for them based on their usage conditions.
How to Use Creative Commons Licenses
Over the past 20 years, CCL applicability has expanded across the internet to encompass 2 billion works on 9 million websites. CCLs only apply online and to individual copyrights. The licenses work on top of existing copyright law — the original copyright holder must acquire a CCL prior to others using the work in accordance with the license. Needless to say, if copyright laws don’t apply to a work, neither do CCLs.
For example, works that have entered the public domain, works that fall under a fair-use doctrine (like news reporting, research, search engine results, or parody), or government and legal documents are not subject to CCLs because they do not qualify for copyright protections. Another notable area that CCLs do not apply to is software. The open-source movement in free software predates the Creative Commons and, frequently, goes further in terms of permissive use and access.
So, how can someone violate a CCL, and what specifically happens when they do? If a licensee violates the conditions of a CCL, either knowingly or unknowingly, the licensee automatically loses the right to use the licensed work. The licensee has 30 days to correct the breach of license for restoration of their usage rights. Failing this, the license is terminated and the licensor can seek legal redress for copyright infringement. Because CCLs work on top of copyrights, only the copyrighted portions of works qualify for CCL protections. If any part of a work is trademarked or patented, these parts do not fall under CCL provisions of use.
Enforcing CCLs baseline rights can also be difficult. What constitutes an adaptation? What qualifies as commercial versus non-commercial use? Recent legal cases have sought to clarify these conditions, but CCLs are a legal field that is still in its infancy and is constantly evolving. The Creative Commons website maintains a searchable database of up-to-date legal cases and CCL scholarship for reference.
Because the online world evolves so quickly with respect to sharing creative works, CCLs provide an impressive technological breakthrough in a field that is frequently plodding and antiquated when it comes to governing the modern internet — namely, the legal field. There are advantages and disadvantages to consider when debating whether to acquire a CCL or to use CC licensed works, however.
Pros of Creative Commons Licenses
On the upside, CCLs are legally simple, free to establish (just link work to a chosen CC license), and easily tracked (due to their three-layer readability). Permissions are preapplied so, unlike formal copyright, a potential user does not have to issue requests for specific uses. Lastly, CCLs are an excellent method by which to generate inbound traffic to websites, profiles, and other host-work platforms. Online users of the work can feel confident that, if they behave under the specific CCL stipulations, they will not be breaking any laws. This creates an incentive for more widespread sharing of the author’s original work (and attributed derivatives).
Cons of Creative Commons Licenses
CCLs have drawbacks as well. It is difficult to guarantee that a content creator had rights to publish the content under a CCL. If the original CC user does not have a copyright on the original work, everyone who subsequently uses the work is subject to copyright infringement. On the flip side, CCLs are user enforced. It’s up to licensors to identify violations, which can be difficult the more widespread their licensed works become. Also, CCLs are irrevocable, so if a copyright holder is using an original work for direct commercial gain, a CCL is probably not a good idea. Apart from the NC and ND conditions of a license, CCL holders have no control over who uses their work or how their work is used.
For instance, now that the original Winnie the Pooh and friends have gone into the public domain, A.A. Milne, who created the characters for his infant son’s enjoyment, might not have enjoyed the most recent derivative work about the denizens of Hundred Acre Wood. Lastly, CCLs are only available online and only apply to new, original works.
Creative Commons Licenses: A Legal Breakthrough
Given how quickly original work can spread online, Creative Commons licenses represent that rarest of technological breakthroughs: a new legal tool. They give copyright holders wider options for permissive use of their works while simultaneously allowing licensees to better understand and abide by legal use of copyrighted materials. Most importantly, given their transparency, applicability, and uniform nature, CCLs eliminate the guess-work of permissive reuse and derivation of formal copyrights. By minimizing legal uncertainty, CCLs provide incentives for new creations to spring forth.
