Creative Commons - Critiques
Read the general entry on the Creative Commons for a basic explanation.
A commons for consumers or a commons for creators?
(key underlying argument: using the non-commercial feature basically excludes creators from using the commons)
Alan Toner:
“Two divergent and clashing conceptions in the use of CC licenses become evident.
The first employs them as instruments designed to guarantee access.The ‘commons’ that this model aspires towards is one based only on consumption. Universal reception is approved but all other rights are reserved, especially control over context and reuse. Only non-commercial use is permitted. Sometimes no derivative works are allowed due to a desire to protect the integrity of the text or video.
The second focuses on amassing a large stock of common materials for whose use no-one’s permission is required. The fear of commercial appropriation is put aside for the hope of contaminatory insinuation into the mainstream thus integration with commercial products is permitted. But all new (derivative) works must be available to be used themselves - it’s the GPL for culture and it relies upon the sharealike clause - I share if you share.
Thus the potential emerges for a material base of raw materials that can be continually reworked, improved upon and exploited in any number of ways. Contributors are assured that their work will not be appropriated unilaterally. Other works infected by sharealike become collective resource and a form of indirect income like free transport, access to education and housing. At a moment of both generalised precarization and restraints on expression it provides a rare guarantee.” (http://knowfuture.wordpress.com/2007/02/17/a-commons-for-creators-or-consumers/)
What is the key difference between the GPL and CC approaches
See our entry on the GNU General Public License
Michel Bauwens:
It helps to distinguish between different forms of sharing and purpose. There are many cases in which the individual need for expression and creative sharing is primary, and the commons is a derivative product of the individual creative process. In this case, the Creative Commons approach, which starts from a very strong position of the sovereignity of the individual, is appropropriate, and leaves the individual with a range of choices, many of which are not conducive to the creation of a strong Commons.
But there are other projects in which in individual consciously participates in a common project, such as Linux or the Wikipedia, where his contribution, even though it may correspond to an individual need, is clearly aimed at construction a Commons, which is therefore primary. In such a case, the GPL license is much more appropriate and conducive to the creation of a strong Commons.
What are the prospects for its uptake by industry players?
Joi Ito at http://joi.ito.com/archives/2007/06/23/interview_for_macedonian_newspaper.html
"How do Hollywood and other major industries accept CC?
There is a mixed response. I think that because the core values of CC involve Free Culture, I think that often this is misinterpreted to mean anti-copyright. In fact CC is not anti-copyright. It is just asking to allow artists to make choices based on what they would like to do.
I think that the enlightened people in the industry know, like and use CC. Some have even begun to understand the commercial benefit of using CC for marketing lesser know artists or for promotion already well know artists. I think that as new business models that involve sharing evolve, people will find that sharing actually makes business sense.
I think that we are struggling to make this case because for most people any change is frightening and disruptive. I am confident, however, that we will wind the hearts and minds of most people in Hollywood.
A good example is the Internet. Initially the Internet (or TCP/IP) was at odds with what most of the worlds companies and standards bodies wanted to do. it was considered rogue and illegal in some countries. Pushing the Internet was a political statement. Now everyone uses it. Some people would like to make it more closed and some of us fight to keep it open, but for the most part, people see its value and realize now that open is better than closed. I think that CC might follow a similar path." (http://joi.ito.com/archives/2007/06/23/interview_for_macedonian_newspaper.html)
Does CC-based Open Publishing underminde existing media communities?
From a controversy in the Sivacracy blog, by Tarleton Gillespie [1]:
Summary of the challenge:
"people trade music one peer-to-peer networks with no concern for paying the artist; that works now, since all this music has already been released — but what happens when artists stop producing music altogether because it is being redistributed, and fans are left with nothing to trade? Or, political blogging claims to be an improvement over mainstream media, avoiding lots of the problems that commercial and institutional imperatives force on the old form — but blogging rarely includes investigative inquiry or breaking news, its really about recirculation, commentary, critical analysis, so what happens if the mainstream news collapses, what will bloggers comment on?"
The reply:
"These concerns are, I believe, unwarranted because they are too stark: there are lots of reasons why musicians will continue to make music and journalists will continue to investigate, even in a context in which users now eagerly take, recirculate, and comment on their work. But Price’s concern is a sharper one: does the value of community, the way people gather around a site like openDemocracy, fuel the continued production of its content, and its sense of significance? (This has echoes of Benjamin’s worry about the loss of “aura” when cultural works can be easily reproduced.) If those materials can be found outside of its designed context, whether its on another site or through aggregators like Google News or RSS readers, will those communities wither? As price puts it,
The commons have always been sustained by communities, and the digital commons, embodied in the iCommons movement, will be the same. Communities both pay for and give life to endeavours in the public space. They supply both sense and cents.
What Price underestimates is the “attribution” aspect of the Creative Commons license, and of this context of abundance more generally. Communities can’t just hunker down and survive, they need to grow and remain vital. They do this by expanding their reach, finding new members while also serving the old, connecting to other conversations and deepening them. The fact that openDemocracy’s articles get picked up and re-posted on other sites, or made available out of context through Google News, not only gets them to more people, it directs some of those readers back to the site, where some of them may become members themselves. The link back to openDemocracy, through attribution and through a literal hyperlink, is a kind of advertising, a kind of invitation, a kind of enticement. It’s actually better than an ad, because rather than being told “you really should check out our site, it’s good, I swear” a reader finds value in an article, and has reason to seek out more. Just as some musicians will continue to make music, even if there is no profit for them, and just as some journalists will seek out information even if there is no financial reward coming to them, communities will continue to form around shared value and meaning. The porous boundaries of these communities is always valuable and risky, and every community struggles with how porous to be. But allowing the content itself to circulate strikes me as the most powerful way to make a community open, strong, viable, and lively." (http://www.sivacracy.net/archives/004344.html)
True Open Access means Derivative Usage must be allowed
Catriona J. MacCallum:
"with this welcome trend comes a more insidious one to obscure the true meaning of open access by confusing it with free access. As the original Bethesda definition makes clear, open access allows for unrestricted derivative use; free access does not. So the beauty of open-access publishing is not just that you can download and read an article for personal use. You can also redistribute it, make derivative copies of it. This is because the open-access license most commonly used—the Creative Commons Attribution license (http://creativecommons.org/licenses/)—permits derivative reuse, as long as the author is correctly cited and attributed for the work. It is the most liberal of the available Creative Commons licenses (there are six), which are now applied widely to books, music, videos, etc., as well as scholarly works. It is important to note that of the six different Creative Commons licenses, only those that permit unrestricted derivative use (which may be limited to noncommercial use) truly equate with open access. (http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050285)
Some Additional Issues
Sudhir Suyal [2]:
"Hang on a minute. So these licenses mean that all content is actually given away free and the content creators are still making money out of it?
Yes, believe it or not, it's true. The common phenomenon is that, once an interest is generated around a product freely available on the internet, a large proportion of those who use the content on the internet, move over to a retail store and actually pay for the same content in a physical form.
The reasons are manifold, some buy it for purposes of convenience, other do so to show their respect for the content creators, while still others buy it because of their perception of value in buying a product they can touch, feel and put on their rack. More than anything, the content available freely on the web helps build hype and WOM (Word of Mouth) attention onto the content, which more often than not translates into sales.
There are a number of content creators which have used this strategy and come out successful; you can read more about them here and here.
Has anyone taken these licenses seriously? Have legal bodies given them recognition?
Well, the best way to answer that question is to tell you about an incident which happened recently. Well known podcaster Adam Curry, was shocked to see one morning a collection of photos from his Flickr page appear without his permission in the Dutch Tabloid 'Weekend Magazine'. The license for all his content on Flickr being a non-commercial Creative Commons license meant that any commercial use of his photographs was strictly disallowed and his permission would have to be sought if it were to be used.
The case went to the Dutch Courts, and Curry won.
The tabloid was warned, with the ruling clearly stating that moving forward, the tabloid would be fined a sum of 1000 Euros for every photo they were to use without his permission. An analysis of the decision states that, "The Dutch Court's decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license."
This was a victory for the Creative Commons movement. Their belief and faith in the movement had been vindicated.
Given the recent nature of this phenomenon, and the unstructured new media laws in most countries, it's still unclear how Creative Commons licenses will be upheld in other countries, only time will perhaps give us that answer.
Where have these licenses been used since their launch?
Since its launch, the response has been dramatic with a number of blogs, photos, videos and other creative content being licensed with the Creative Commons licenses. Some of the notable projects which have been CC Licensed have been popular internet platforms such as Flickr and Wikimedia Commons, while other formal publications and instructional materials such as MIT OpenCourseWare and the Public Library of Science have been others who have labeled their content with CC Licenses.
The movement has seen itself extend to other forms of media such as newspapers, magazines, blogs and record labels apart from open space films such as Elephants Dream and Cactuses ." (http://spicyipindia.blogspot.com/2007/10/spicyip-guest-series-sudhir-syal-on.html)
Review of the Critiques
Sudhir Suyal:
"Some of the common points of criticism have been:
- An Ethical position – Many have criticized the Creative Commons organization for not having an ethical position to base its licenses. Proponents of the Free Software Movement have argued that many of the CC Licenses have instead of providing more freedom to content creators, actually served as a hindrance. The Creative Commons organization reacted by retiring some of those specific licenses.
- A Political position – Many who have examined the group have completely disregarded its relevance, potency and effectiveness describing the group as an unconcerned corporate filter serving more to feed all those participating into corporate co-option with no specific motive.
- A Pro-Copyright position - The content industry as a whole has said that the Creative Commons Licenses in general undermine copyright laws showing utter disrespect for the media industry at large. Further, they have criticized the movement saying that instead of simplifying license proliferation, they have worsened it by providing that are incompatible with most forms of media.
A paper by Niva Elkin Koren , a professor of law at the University of Haifa Israel, forms a an alternative view on Creative Commons, presenting her hypothesis on how instead of opening out a new world of creative thinking and freedom, the movement might actually inadvertently create more of a restrictive licensing culture because of the easy accessibility to licenses. Her view is that, since most creative content is actually devoid of copyright licensing in any case, the Creative Commons licenses are in most cases giving creative content new licenses and restrictions which previously did not exist." (http://spicyipindia.blogspot.com/2007/10/spicyip-guest-series-sudhir-syal-on.html)
Discussion
By Benjamin Mako Hill of the Free Software Movement
Read the whole critique at http://www.advogato.org/article/851.html
Here is the gist of the argument:
"However, despite CC's stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software's success is built upon an ethical position. CC sets no such standard." (http://www.advogato.org/article/851.html)
Mako subsequently concluded:
"Whether in unison or cooperating in separate groups, it is time for those those of us that feel strongly about freedom to discuss, decide, and move forward with our own free information movement built upon a standard of freedom. When we have defined free information in terms of essential freedoms, a subset of Creative Commons works and a subset of Creative Commons licenses will provide tools and texts through which a social movement can be built."
And with Erik Moller, created the Freedom Defined website to work on a solution, see at
http://freedomdefined.org/
By Dmytri Kleiner
The CC-licenses favors producers and not the consumers of a free culture, writes
"The website of the Creative Commons makes the following statement about it's purpose:
"Creative Commons defines the spectrum of possibilities between full copyright — all rights reserved — and the public domain — no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work — a 'some rights reserved' copyright." [Creative Commons.]
The point of the above is clear, the Creative Commons, is to help "you" (the "Producer") to keep control of "your" work. The right of the "consumer" is not mentioned, neither is the division of "producer" and "consumer" disputed. The Creative "Commons" is thus really an Anti-Commons, serving to legitimise, rather than deny, Producer-control and serving to enforce, rather than do away with, the distinction between producer and consumer.
The producer is invited by the Creative "Commons" to chose the level of control they wish to apply to "their" work, including such choices as forbidding duplication, derivate works and "commercial" use of the work, specifically providing a framework then, for "producers" to deny "consumers" the right to either create use-value or material exchange-value of the "common" stock of value in the Creative "Commons" in their own cultural production.
This is more than evident by the fact that, even had the Beatles and Gloria Gaynor published their work within the framework of the creative commons, it would still be their choice and not the choice of DJ Dangermouse or Javier Patro, whether "The Grey Album" or "Jesus Christ: The Musical" should be allowed to exist.
The legal representatives of the Beatles and Gloria Gaynor could just as easily have used Creative Commons licences to enforce their control over the use of their work.
Thus, the very problem presented by Lawrence Lessig, the problem of Producer-control, is not in anyway solved by the presented solution, the Creative Commons, so long as the producer has the exclusive right to chose the level of freedom to grant the consumer, a right which Lessig has always maintained support for.
The Creative Commons mission of presenting for the producer the "freedom" to chose the level of restrictions their work is published under stands in distinct and essential contrast to the mission of advocates of commons-based production: The denial of the distinction of producers and consumers, and the denial of the right of Producer-control of the common stock." (http://info.interactivist.net/article.pl?sid=06/09/16/2053224)
By the Debian Free Software Project
The Debian Legal Team says CC should not be used for software programs. The source gives a detailed critique, of which we only reproduce the recommendations.
From: http://people.debian.org/~evan/ccsummary
Recommendations for Authors
"debian-legal contributors recommend that authors who wish to create works compatible with the Debian Free Software Guidelines should not use any of the licenses in the Creative Commons license suite.
Authors who use or are planning to use a Creative Commons license that includes the NonCommercial or NoDerivs license elements should understand that these restrictions are incompatible with Free Software.
Authors who use or are planning to use the Attribution 2.0 license should consider a similar Free Software license such as a BSD- or MIT-style license [BSD], [MIT].
Authors who use or are planning to use the Attribution-ShareAlike 2.0 license should consider a similar Free Software license such as the GNU General Public License [GPL]. Recommendations for Creative Commons
debian-legal contributors believe that problems with the Creative Commons licenses that include the NoDerivs or NonCommercial license elements cannot be fixed without changing the apparent purpose of the licenses.
The Attribution and Attribution-ShareAlike licenses, however, seem to be intended to make works Free in a way compatible with the DFSG. For this reason, we make the following suggestions for future versions of the Attribution and Attribution-ShareAlike licenses that, barring other changes, should make the licenses compatible with the DFSG.
1. Limit scope of requests to remove references. The intention of the clause for removing references to a licensor seems to be that authorship credits should be removed. This should be specified, rather than "any reference". Some suggested text for section 4a:
If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any authorship credit for such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any authorship credit for such Licensor or the Original Author, as requested.
2. Waive attribution after request to remove references. It should be made explicit that if the Licensor requires that references to them be removed, this excuses the licensee from the requirements for attribution. A modification to section 4b might be:
[...] by conveying the name (or pseudonym if applicable) of the Original Author if supplied and no request has been made to remove it; [...]
3. Allow access-controlled private distribution. The anti-DRM clause should be changed to make it clear that the licensee can't prevent others receiving the work from exercising the same rights that the licensee has.
4. Allow distribution of rights-restricted copies of works if unrestricted copies are also made available. The following modified version of the anti-DRM clause in section 4a may be a good starting point.
You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that prevent the recipient from exercising the rights granted to them by section 8a and section 3 of this License, unless you also distribute, publicly display, publicly perform or publicly digitally perform the Work for the same recipient without those measures.
5. Require "credit for comparable authorship" rather than "comparable authorship credit". This makes it clear that the Licensor should be credited in proportion to their contribution, rather than equally to all other authors.
6. Specify "other credit". Licensors should receive some credit, but adding their name wherever any credit is made is excessive and inaccurate. Suggested text:
[...] at a minimum such credit will appear where other credit for comparable authorship appears and in a manner at least as prominent as such other credit for comparable authorship.
7. More clearly identify non-license trademark restrictions. The trademark restrictions should be clearly labelled, in text and not in the comments, as not part of the license. Separating the organization's trademark policy into another, linked document would be clearer still.
8. Rephrase overreaching trademark restrictions. The trademark restrictions should be relaxed or rephrased so that licensors and licensees are not denied rights to the Creative Commons trademarks they would have if they did not use the licenses. Suggested text:
Creative Commons grants everyone a license to use the trademark "Creative Commons" and related trademarks and logos to indicate to the public that the Work is licensed under the CCPL. Creative Commons reserves all other rights to its trademarks under trademark law; nobody may use the trademark "Creative Commons" or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons, except as allowed under trademark law.
Note that new versions will be evaluated on their own, and problems introduced in the new version or that weren't covered in this summary may still make the licenses incompatible with the DFSG. In other words, these suggestions come with no guarantees." (http://people.debian.org/~evan/ccsummary)
The Creative Commons movement as capitalist assimilationism
From http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html
"The dissidents of intellectual property have had a rich history among avant-garde artists, zine producers, radical musicians, and the subcultural fringe. Today the fight against intellectual property is being led by lawyers, professors and members of government. Not only is the social strata of the leading players very different, which in itself might not be such an important detail, but the framework of the struggle against intellectual property has completely changed. Before law professors like Lawrence Lessig became interested in IP, the discourse among dissidents was against any ownership of the commons, intellectual or physical. Now center stage is occupied by supporters of property and economic privilege. The argument is no longer that the author is a fiction and that property is theft, but that intellectual property law needs to be restrained and reformed because it now infringes upon the rights of creators. Lessig criticizes the recent changes in copyright legislation imposed by global media corporations and their powerful lobbies, the absurd lengths to which copyright has been extended, and other perversions that restrict the creativity of artists. But he does not question copyright as such, since he views it as the most important incentive for artists to create. The objective is to defend against IP extremism and absolutism, while preserving IP’s beneficial effects.
In his keynote at Wizards of OS4 in Berlin, Lessig celebrated the Read-Write culture of free sharing and collaborative authorship that has been the norm for most of history. During the last century this Read-Write culture has been thwarted by IP legislation and converted to a Read-Only culture dominated by a regime of producer-control. Lessig bemoans the recent travesties of copyright law that have censured the work of remix artists like DJ Dangermouse (The Grey Album) and Javier Prato (Jesus Christ : The Musical). Both were torpedoed by the legal owners of the music used in the production of their works, as were John Oswald and Negativland before them. In these cases the wishes of the artists, who were regarded as mere consumers in the eyes of the law, were subordinated to control by the producers - the Beatles and Gloria Gaynor, respectively - and their legal representatives. The problem is that producer-control is creating a Read-Only culture and destroying the vibrancy and diversity of creative production. It is promoting the narrow interests of a few privileged "producers" at the expense of everybody else. Lessig contrasts producer-control to the cultural commons - a common stock of value that all can use and contribute to. The commons denies producer-control and insists on the freedom of consumers. The "free" in free culture refers to the natural freedom of consumers to use the common cultural stock and not the state-enforced freedom of producers to control the use of "their" work. In principle, the notion of a cultural commons abolishes the distinction between producers and consumers, viewing them as equal actors in an ongoing process.
Lessig claims that today, as a result of commons-based peer-production and the Creative Commons project more specifically, the possibility of a Read-Write culture is reborn. But is the Creative Commons really a commons ? According to its website, Creative Commons defines the spectrum of possibilities between full copyright - all rights reserved - and the public domain - no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work - a "some rights reserved" copyright. The point is clear : Creative Commons exists to help "you," the producer, keep control of "your" work. You are invited to choose among a range of restrictions you wish to apply to "your" work, such as forbidding duplication, forbidding derivative works, or forbidding commercial use. It is assumed that as an author-producer everything you make and everything you say is your property. The right of the consumer is not mentioned, nor is the distinction between producers and consumers of culture disputed. Creative Commons legitimates, rather than denies, producer-control and enforces, rather than abolishes, the distinction between producer and consumer. It expands the legal framework for producers to deny consumers the possibility to create use-value or exchange-value out of the common stock.
Had the Beatles and Gloria Gaynor published their work within the framework of Creative Commons, it would still be their choice and not the choice of DJ Dangermouse or Javier Patro whether The Grey Album or Jesus Christ : The Musical should be allowed to exist. The legal representatives of the Beatles and Gloria Gaynor could just as easily have used CC licenses to enforce their control over the use of their work. The very problem of producer-control presented by Lessig is not solved by the Creative Commons "solution" as long as the producer has an exclusive right to choose the level of freedom to grant the consumer, a right that Lessig has never questioned. The Creative Commons mission of allowing producers the "freedom" to choose the level of restrictions for publishing their work contradicts the real conditions of commons-based production. Lessig’s use of DJ Dangermouse and Javier Patro as examples to promote the cause of Creative Commons is an extravagant dishonesty.
A similar dishonesty is present in Lessig’s praise of the Free Software movement because its architecture assures everyone (technologically as well as legally, in the form of its licenses) the possibility to use the common resource of the source code. Despite its claim to be extending the principles of the free software movement, the freedom Creative Commons gives to creators to choose how their works are used is very different from the freedom the GPL gives to users to copy, modify and distribute the software as long as the same freedom is passed down. Stallman recently made a statement rejecting Creative Commons in its entirety because some of its licenses are free while others are non-free, which confuses people into mistaking the common label for something substantial when in fact there’s no common standard and no ethical position behind the label. Whereas copyleft claims ownership legally only to relinquish it practically, the references to ownership by Creative Commons is no longer an ironic reversal but real. The pick and choose CC licenses allow arbitrary restrictions on the freedom of users based on an authors’ particular preferences and tastes. In this sense, Creative Commons is a more elaborate version of copyright. It doesn’t challenge the copyright regime as a whole, nor does it preserve its legal shell in order to turn the practice of copyright on its head, like copyleft does.
The public domain, anticopyright and copyleft are all attempts to create a commons, a shared space of non-ownership that is free for everyone to use. The conditions of use may differ, according to various interpretations of rights and responsibilities, but these rights are common rights and the resources are shared alike by the whole community — their use is not decided arbitrarily, on a case by case basis, according to the whims of individual members. By contrast, Creative Commons is an attempt to use a regime of property ownership (copyright law) to create a non-owned, culturally shared resource. Its mixed bag of cultural goods are not held in common since it is the choice of individual authors to permit their use or to deny it. Creative Commons is really an anti-commons that peddles a capitalist logic of privatization under a deliberately misleading name. Its purpose is to help the owners of intellectual property catch up with the fast pace of information exchange, not by freeing information, but by providing more sophisticated definitions for various shades of ownership and producer-control.
What began as a movement for the abolition of intellectual property has become a movement of customizing owners’ licenses. Almost without notice, what was once a very threatening movement of radicals, hackers and pirates is now the domain of reformists, revisionists, and apologists for capitalism. When capital is threatened, it co-opts its opposition. We have seen this scenario many times throughout history — its most spectacular example is the transformation of self-organized workers’ councils into a trade union movement that negotiates legal contracts with the owners of corporations. The Creative Commons is a similar subversion that does not question the "right" to private property but tries to get small concessions in a playing field where the game and its rules are determined in advance. The real effect of Creative Commons is to narrow political contestation within the sphere of the already permissible.
While narrowing this field of contestation, Creative Commons simultaneously portrays itself as radical, as the avant-garde of the battle against intellectual property. Creative Commons has become a kind of default orthodoxy in non-commercial licensing, and a popular cause among artists and intellectuals who consider themselves generally on the left and against the IP regime in particular. The Creative Commons label is moralistically invoked on countless sites, blogs, speeches, essays, artworks and pieces of music as if it constituted the necessary and sufficient condition for the coming revolution of a truly "free culture." Creative Commons is part of a larger copyfight movement, which is defined as a fight to keep intellectual property tethered to its original purpose and to prevent it from going too far. The individuals and groups associated with this movement (John Perry Barlow, David Bollier, James Boyle, Creative Commons, EFF, freeculture.org, Larry Lessig, Jessica Litman, Eric Raymond, Slashdot.org) advocate what Boyle has called a smarter IP, or a reform of intellectual property that doesn’t threaten free speech, democracy, competition, innovation, education, the progress of science, and other things that are critically important to our ( ?) social, cultural, and economic well-being." (http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html)