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Thursday, October 14, 2010

Creative Commons In Practice

While it can be a powerful tool for getting your work noticed, Creative Commons presents problems for unwary photographers

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The symbol “CC” within a circle signifies that content is licensed under a Creative Commons license. The other icons indicate that attribution is required (“BY”), commercial use is prohibited (“NC”) and derivatives may not be created (“ND”) (Figure 2). In instances where there’s no good way to present the graphical representation, the name of the selected license may be stored in metadata (EXIF or IPTC).

On a website like Flickr, licensing can be set on an image-by-image basis. With Flickr, however, you also can select a default Creative Commons license that will apply to all images uploaded to your Flickr account. While applying a default license to all images uploaded may be convenient, it’s also potentially problematic. Although not detailed on the Flickr website, and not explained in the summary of license terms on the Creative Commons website, the license grant is “perpetual (for the duration of copyright),” and while the owner of the image may elect to distribute the image under different license terms or cease distribution of an image, the owner can’t terminate license grants once copies of the images have been acquired by others. In other words, once someone downloads a copy of the image, their right to use the image can’t be terminated unless they violate the license terms (and the terms can’t be changed after the fact).

Lost In Translation

While Creative Commons was intended as a free system devised to simplify the licensing of content, including photographs, Creative Commons hasn’t entirely lived up to its self-described mission of “making it easier for people to share and build upon the work of others, consistent with the rules of copyright.” One of the reasons for this is due to efforts by Creative Commons and others to simplify a set of license terms and provisions that are anything but simple and straightforward.

Figure 2

For example, the simplistic description of license terms, referred to by the Creative Commons website as the “human-readable summary of the Legal Code (the full license),” summarizes the “noncommercial” restriction as meaning that “[y]ou may not use this work for commercial purposes.” Given this overly simplistic explanation of the restrictions, it’s unsurprising that Harding and others considered the Daily Mail’s use of his photograph to be a commercial use. As Harding explained, “[t]he website features prominent commercial advertising on all pages, including the one that contains my photograph. I consider this commercial use...in violation of the ‘non-commercial’ clause of the [Creative Commons] license.”

While discussing Harding’s situation with the Daily Mail, another Flickr user, Tim Chapman of Halifax, UK, identified definitional confusion in the Creative Commons license agreement. “A quick look at the definitions on the Creative Commons site isn’t encouraging,” says Chapman. “I may be missing something, but there’s no clear definition of what comprises commercial use.”

The actual language of the license is sufficiently malleable to provide little, if any, guidance in resolving whether a use is commercial or not. The restriction against commercial use provides that “[the licensee] may not exercise any of the rights granted to [the licensee]...in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” The license restriction also explains that “[t]he exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.”

When the actual language of the Creative Commons license is considered, Wagland’s argument that the Daily Mail’s “website comes under the editorial use rather than commercial use” begins to unravel. According to the language of the license itself, the question isn’t whether the use is commercial or editorial, but rather, whether the use is “intended for or directed toward commercial advantage or private monetary compensation.”

Apparently cognizant of some of the problems associated with its licenses, Creative Commons commissioned a study, funded by a grant from the Andrew W. Mellon Foundation, to assess how the online community understands the terms “commercial use” and “noncommercial use.” Some of the study’s findings are particularly revealing. For instance, the distinct majority (greater than 80%) of both content creators and users surveyed believe that the use of a work on a web page supported by advertisements, with the user profiting from the ads, was definitely a commercial use. Even in situations where works were used on web pages supported by ads, but where the web pages resulted in no profits, the majority of content creators and users responded that the use was commercial. While the study findings are extensive (and available online at wiki.creativecommons.org/
), it doesn’t appear that any effort was made to evaluate the “editorial” versus “commercial” dichotomy illustrated by Harding’s situation with the Daily Mail or other similar situations.


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