Say you did a Wikipedia search for the history of electropop dance music, out of curiosity for its origins and sudden rise to prominence in the early late 2000s, and, finding no intuitive visual timeline describing key events, you decide to make your own. When you’ve finished, you find it so useful that you think it belongs on that Wikipedia page – maybe this way, some unknown day in the not too far off future, when somebody similarly curious happens upon the history of electropop, they find your awesome timeline and are better off for it. Your contribution has added some amount of knowledge to the human digital commons, or something like that. So, you, our intrepid Wikipedia contributor, prepare to upload your work. Upon doing so, however, you’re confronted with a choice, and not a trivial one – a choice upon which the entire utility and visibility of your timeline hinges. You must select a license.
In 2009, Wikipedia chose to move to the Creative Commons Attribution-ShareAlike (CC BY-SA) license as the default license for all user uploaded media on Wikipedia and other Wikimedia-operated websites. You can check the permissions & license of any media file uploaded to Wikipedia. As more and more of traditional media made the move from analog to digital, it became clear that there were no sufficient licenses to protect legitimate sharing and, so to speak, “standing on the shoulders of giants,” perhaps the linchpin of human knowledge and progress and liberty and all that good stuff. The GPL and BSD licenses were all well and good for software, but computers were not just for programs, programmers, and users anymore. Creative works expanded to include media, articles, documents – you name it. There needed to be a non-software creative works equivalent of software licenses like the GNU General Public License (GPL), and various schemes stepped up to the plate, including the GNU Free Document License (GFDL) and the Creative Commons license suite.
Creative Commons shares a methodology with other free software and document licenses – namely, fitting a system for protecting certain uses of a [mostly] copyrighted work within the existing digital copyright framework. No licensing system, or rather, no successful licensing system, purports to replace or circumvent existing copyright law (as far as I know). This seems to beg a question, however – what makes a licensing system successful? We could look at this in several ways. A license could be legally successful, in that it has been upheld in a court of law; and/or a license could be socially successful, in that it has been adopted by and is supported by content creators; and/or a license could be ideologically successful, in that it tends to augment and bolster arguments in favor of some ideology, in this case, free media & documents.
The CC License Spectrum
But then that raises another issue – is Creative Commons a license? In short, no. Creative Commons is an organization, and a family of 6 related, but distinct, licenses. When evaluating a Creative Commons license, for legal, social, and ideological success, we must do so for each license, since each has its own strengths and weaknesses, supports and critiques. I won’t get too into each license, since Creative Commons itself actually puts a lot of work into translating its licenses from legalese to normal English.
What I really want to measure here is the relative success of each license, insofar as there’s some evidence available. With that in mind, here’s a quick rundown of each Creative Commons license:
1. Attribution – CC BY
What does it do?: “This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.”
Legally successful?: Not in the US. Someone did sue over improper use of a photo under CC BY, but the case was thrown out for lack of jurisdiction, so it hardly counts as a test of the license itself.
Socially successful?: If nothing else, it does help promote what we might call a “citation culture” outside of academia. In other words, it encourages people to give credit to others where it’s due, no matter how many wild arbitrary changes they make to the original work. (Granted, the authors might not even want to be associated with the derivations…)
Ideologically successful?: Sort of. One test we can apply here is the “What would Richard Stallman say?” test (this test will use his testimonial from the given link to evaluate the ideological success of a license). In this case, he would probably say that the fact that it doesn’t require derivative works to use the same license makes it essentially worthless for the cause of free media. But hey, you get your name on stuff!
2. Attribution-ShareAlike – CC BY-SA
What does it do?: “This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia, and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.”
Legally successful?: Not in the US. Wikipedia has been sued for other reasons, but their use of CC BY-SA was never challenged.
Socially successful?: Well, it is the license used by Wikipedia, and closely reflects free software licenses. Additionally, any work that makes use of Wikpedia articles must use the CC BY-SA license, which is pretty key.
Ideologically successful?: Yes! This license most closely resembles the GPL[link], in that it tries to ensure that derivative works remain as free as the works they’re based on.
3. Attribution NoDerivs – CC BY-ND
What does it do?: “This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.”
Legally successful?: Not in the US.
Socially successful?: With the ease of manipulation of digital works, it is unlikely that this is actually adhered to at all.
Ideologically successful?: Richard Stallman would probably say: No, because it doesn’t allow any changes to the original work, stifling free creativity. True that.
4. Attribution-NonCommercial – CC BY-NC
What does it do?: “This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.”
Legally successful?: Not in the US.
Socially successful?: For example, this is a very common license for works released by academic institutions that want to freely share knowledge without others profiting from it, so yes.
Ideologically successful?: Richard Stallman would probably say: Somewhat, but it doesn’t allow anyone to profit from the distribution of derivative works (which makes it more restrictive than the GPL), and it also doesn’t guarantee that derivative works will be similarly free.
5. Attribution-NonCommercial-ShareAlike – CC-BY-NC-SA
What does it do?: “This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.”
Legally successful?: Not in the US.
Socially successful?: Unclear if it’s as socially successful as #4, since ShareAlike adds an extra burden on the author of the derivative work.
Ideologically successful?: Richard Stallman would probably say: Somewhat, but it doesn’t allow anyone to profit from the distribution of derivative works (which makes it more restrictive than the GPL), but at least it requires that derivative works use the same license, which makes it a bit more ideologically successful than #4.
6. Attribution-NonCommercial-NoDerivs – CC-BY-NC-ND
What does it do?: “This license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.”
Legally successful?: Not in the US.
Socially successful?: This license is often used and abused by companies looking to prevent commercial derivatives of commercial works. So, in that sense, yes.
Ideologically successful?: Freedom to distribute, but no freedom to make changes or improvements, not even for personal use. Imagine buying a book and not being able to write notes in it – this is quite restrictive. In this sense, it defeats the purpose of free media.
Ultimately, it’s hard to judge Creative Commons’ legal success in the US, because it just hasn’t been tested enough in US courts, if at all. Notice too that, at their root, all of the licenses share a bare minimum of Attribution in common. So, it could be said that the licenses form a sort of spectrum from not terribly restrictive to very restrictive, or, from Attribution to “Credited Verbatim Distribution” (that is, sharing is cool as long as the author is credited and no changes are made and the work is never used for commercial purposes). If any broad critique of Creative Commons were to be made, it would necessarily have to find conflict with Attribution. And actually, Attribution does pose several challenges: 1) How do you prove authorship of a work? 2) Once proving authorship, how significant must a change be for it to count as derivative? 3) How are authors to be credited in derivative works? Especially for question 3, take this for example: someone remixes a book, keeping the title and general themes, but changing the entire plot so that the ending is completely different from the original. Should the original author be credited by saying “Inspired by so and so,” or would that imply some sort of approval on the part of the author?
What about the lolcats?
You know, speaking of Lolcats, where might they fall on the Creative Commons license spectrum? Lolcats are perhaps most obviously a great example of fair use, but I wonder where they might fit into a supplemental license scheme, just, perhaps, for the lols, so let’s take a look. Icanhazcheezburger’s legal policies only specify that users can’t upload others’ copyrighted work (except for where it counts as fair use), but that’s all it says really. So we have some room here to speculate about current lolcat use and, based on that, what feasible licensing options Icanhazcheeseburger would have with Creative Commons.
Lolcats can’t possibly fall into any of the licenses requiring No Derivatives or No Commercial Use, since building new lolcat captions off of others’ lolcats is a feature built-into the site, and since commercial derivative works are readily available for purchase on Amazon. So that knocks 3-6 off the list, leaving CC BY and CC BY-SA. I think, quite clearly, lolcats would necessarily fall into CC BY-SA – creators of lolcats, upon submission, must consent to the eternal remixing of their work, since it is a feature of the Icanhazcheezburger community, and derivations cannot be made without crediting the original author. That said, Icanhazcheezburger does allow uploads derived from “unknown” sources – something that users could potentially exploit (ie. knowingly making derivatives of works under a license preventing derivatives by not crediting the original). This is all, of course, within the Icanhazcheezburger network, but I’m just speculating based off usage and norms in the lolcat community, not necessarily how they’re used on the internet outside of that.
Creative Commons – A Success Story?
Is Creative Commons successful? Well, you decide; but, I think clearly the answer is both yes and no – successful socially, debatably successful ideologically, and as of yet untreated legally. But really, if not a licensing system like Creative Commons, what else? Sometimes the most powerful legal tool is the convenient one that is seen to have some social weight. And really, it’s better to have a license than no license if you value your workmanship even a little, since the absence of copyright is public domain cut and dry, and anyone can do anything with whatever you make as they please. Creative Commons seems to underline an important tendency we have as humans – we like getting credit for things. And, getting credit for things encourages us to be creative, especially if we know that we’ll get credited for our creativity. Maybe a vicious cycle, maybe a bit self-centered, but would art exist without it? What about science? A slippery slope indeed. That said, licenses like this establish Attribution over property – meaning that getting credit for something takes precedence over owning that something. That could set a very interesting philosophical precedence for future content creators – under licenses like these, you would know that you are giving up your digital “property rights” for attribution rights, for the sake of the common good of collaboration. Not a bad common good, I think.
P.S. If this kind of thing interests you, there are two excellent posts on this blog, one exploring a Wikipedia without borders, and the other treating different notions of copyright in a “free world”. This is all, of course, only a starting point.
P.P.S. Not coincidentally, all the images used in this post are protected under either fair use or a Creative Commons license. So is this blog post.
This work is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.
Yale Law Tech 