 |
|
|
|
 |
|
|
| |
Home
. Content
Library . Articles
. Creative Commons – the fine print
 16-04-2008
In the last issue of Art All, David McLaughlin looked at the Creative Commons
project in his article “Creative Commons – the basics”. In this article Viscopy’s
lawyer, Virginia Morrison, cautions artists to look beyond the “hype” and consider
whether Creative Commons can deliver any real benefits.
When creators make their livelihoods from selling or licensing their works, why
would they want to start giving them away for free? Presumably only if they can see
an advantage in doing so that outweighs the downside. Creative Commons (CC)
offers creators an easy mechanism to allow their works to be copied and used for free;
the question is does CC offer creators any benefits in return?
The notion of the “commons” is one explored by Professor Lawrence Lessig, the
founder of Creative Commons, in his book The Future of Ideas. Lessig defines the
“commons” simply as a resource held “in common” and draws an analogy with public
parks and beaches. One of the central arguments of Lessig’s work is that “always and
everywhere, free resources have been crucial to innovation and creativity; that without
them, creativity is crippled”. Lessig is critical of the current system of copyright as
allowing creators too much control over their works which in turn stifles creativity.
In the same vein, the recently launched New Zealand Creative Commons site states
that “Creative Commons aims to establish a fair middle way (author’s emphasis)
between the extremes of copyright control and the uncontrolled exploitation of
intellectual property”, as though a creator who chooses to exercise the copyright
rights that automatically accrue on creation of a work is not acting “fairly”.
It is unfortunate that proponents of Creative Commons appear to ignore the fact that
the current system of copyright protection (which exists around the world in broadly
similar forms) has been developed over the centuries with fairness – both to creators
and users – as well as the promotion of creativity very much in mind. It has also
proved very adaptable and applicable to new technologies and innovations. Few
dispute that it is important for artists and other creators to be able to draw on the
public stock of styles, techniques, information and ideas. Copyright law has always
allowed for this. The idea that the creation of new works depends on being able to use
pre-existing works is much more debatable.
Creative Commons, from its philosophical basis to its practical application, appears to
be more about the rights of users, hobbyists and tinkerers than it is about the interests
of professional creators. Interestingly, none of the CC licences require the person
using the work to create something new with that work.
So what benefits might be available to an artist under CC? One of main benefits cited
is that of free publicity. Will making your work available under a CC licence generate
free publicity for your work that will lead to sales and commissions? Cory Doctorow,
a Canadian science fiction writer hailed the benefits of CC at the Melbourne Writers
Festival last year. Doctorow has released all his books under a CC licence as well as
publishing them in the traditional way and he says that the CC version acts an
enticement to buy the printed version and his sales have not suffered. That strategy
may well work in niche publishing but it seems counterintuitive to suggest that if
people can get something for free off the Internet they will go out and buy it also. (It
is becoming clear that this is not happening with music, for example.) On the
contrary, one of the tenets of CC is that consumers and other users shouldn’t have to
pay for every use of copyright material.
In his article on CC, David McLaughlin says that there is nothing to stop a creator
licensing the use of a photograph or a design under CC for purely non-commercial
uses while at the same time entering into a commercial arrangement for the use of the
work in return for the payment of a royalty. While this is technically true, it’s not hard
to see that a publisher or other commercial party may be reluctant to pay a royalty for
the use of a work that has been irrevocably licensed to all and sundry for noncommercial
purposes, particularly if they value exclusivity.
Another drawback to bear in mind is that licensing a work under a CC licence is likely
to compromise the right to receive royalties from copyright collecting societies such
as Viscopy. If, for example, a work is licensed under an attribution licence (which
allows unfettered use of the work provided the creator is attributed) then Viscopy
could not license the work for a fee, nor collect statutory royalties for any Australian
Government or educational use of the work.
Artists may benefit from CC by making use of other people’s CC licensed material
however an important factor to consider is that there is no guarantee (and no real way
of knowing) if the work has been licensed by the copyright owner and does not
contain material owned by a third party. The CC licences specifically exclude
warranties of this nature and any corresponding liability. This issue was highlighted in
recent reports of a law suit brought by a US family against Virgin Mobile in Australia
which used a CC licensed (amateur) photo in an ad campaign. While the photo was
licensed, the girl who was the subject of the photo had not given her permission for
this type of use and objected to it. One thing this case shows is that, far from
benefiting professional creators, CC licences may end up creating an archive of
amateur material to be pillaged by corporations who would prefer not to have to pay
professionals.
CC is an interesting initiative and no doubt useful for people who are happy to give
their work away for free and “share” content. Professional artists, however, should not
be beguiled by the hype but should carefully evaluate CC’s benefits and downsides
for their practice before embracing it.
This article was first published by Artists Alliance in its bi-monthly magazine Art All
#88 on page 22. More information at www.artistsalliance.org.nz
<
back to previous page
|
|
|
|
|
|
 |
|
|
|
|
|
