Your Copyrights and the "Creative Commons"
Caveat Auctor - What you should know before getting involved with the Creative Commons as an author or publisher
- You won’t get paid under a CC licence
- You can’t get out of a CC agreement
- A CC licence may diminish the future or potential value of your work
- CC licences may conflict with pre-existing grants of rights you made to another party
- CC licences may purport to apply to “non-commercial” uses that are not non-commercial
- CC licences can have international implications that need to be considered
Many creators are attracted to the idea of the Creative Commons. After all, chief among its goals is the desire to facilitate so-called "non-commercial" uses of protected works, purportedly helping expose both ideas and copyrights to the general public. That sounds attractive, especially to young composers and musicians who may be distrustful of the commercial world. But there are various dangers that should be considered before agreeing to anything.
What is the Creative Commons?
The Creative Commons (CC) is a U.S. charitable organization that also operates in Canada and other countries. It facilitates the provision of licences for off-line and online uses alike. Licences issued under the CC scheme enable copyright owners to grant some or all of their copyright rights to the public--or to any member of the public--for specified uses, while retaining other rights. This is accomplished through a number of contracts offered by the CC and referred to by the CC as the “Commons Deed” and “Legal Code.”
Some refer to this form of licensing as “open source,” meaning that the licence given does not restrict any party from “redistributing” (for example, selling, reproducing or giving away) the work under specified conditions.
Under the different kinds of licences offered by the CC, the user who takes a licence to use a work is free
• to copy, distribute, display and perform the work,
• to make derivative works of the original work, and
• to make commercial use of the work (unless it is a non-commercial licence)
While the copyright owner may retain ownership in the work, licences granted under the CC regime may not only allow sharing with others (by means of copying, distributing and transmitting the work) but may also allow the licensee to remix or adapt the work without obtaining additional consent from the copyright owner.
Is the CC what it claims to be?
The CC provides a deceptively simple mechanism to achieve its purpose to provide free access to copyrights to the public. But while the CC approach appears to be attractive and simple, it is not simple for everyone and requires detailed consideration and analysis to understand all of its implications. This is the case whether you are a copyright owner and you place your works with the CC or if you are a copyright user and you want to obtain and rely on a CC licence.
Furthermore, the CC does not provide legal advice to any party or an indemnity of any kind. And it states expressly that the CC is not a party to the licence agreement to which the creator or the user agree. It is important that you understand the ramifications of agreeing to the CC regime. For these reasons and others, it is important that you understand the ramifications of agreeing to the CC regime either as a creator or as a user. And, in some cases, it may be necessary to obtain legal advice.
There are several creative commons licence options with simple “icons” and explanations that attempt to simplify the purported terms and conditions of the licence and the legal language which backs up the licences. But this legal language is complex and requires careful consideration. These agreements appear to be – but are not – “user friendly”. Depending upon the licence chosen, some or all of your rights may be given up, simply if credit (attribution) is given to the copyright owner.
Specific licences are referred to by the CC as "some rights reserved" rather than “rights reserved” (as is the case with copyright uses) and as such, these licences only offer what some commentators* have referred to as “an uncertain middle ground between complete control of the work and absolutely no control at all.”
Some problems with CC licences
As noted above, CC licences are complex. And because they are complex they raise many issues for both the creators who grant rights under CC licences and those that may choose to rely on CC licences. Below are only some of the issues that are becoming apparent as the CC licences are being used. Unfortunately, in some cases, lawsuits have arisen as a result of reliance on CC licences. Others are sure to follow.
You can’t get out of a CC agreement
CC agreements are irrevocable. This means that you can’t change your mind and get back the rights you gave under a CC licence. Once performances, communications or copies of your work are made available and exploited under a CC licence, they can and will generate even more performances, communications or copies and you can’t “get them back.”
This not only means you can’t get out of the agreement you make with the CC with respect to existing or future uses of your work, but others who may have relied on the licence with the CC can continue to rely on the licence and use your work, even if you later change your mind.
The CC site states that “Creative Commons licences are non-revocable… so you need to think carefully when choosing a Creative Commons licence to make sure that you are happy for people to be using your work consistent with the terms of the licence, even if you later stop distributing your work.”
A CC licence may diminish the future or potential value of your work
Since the agreements are irrevocable, once you let your work “out” without condition, or with limited conditions, the value of the work may diminish or its potential value may diminish. For example, as a songwriter in the early stages of your career you may decide to grant rights to the CC under one of its licences. Later, when you are successful and demand for your entire catalog increases, you may find that others can use your early valuable works in one or more of the ways that the CC licences provide and you can’t do anything about it. (i.e., You can’t get paid or prevent the continued use for those works).
CC licences may conflict with pre-existing grants of rights you made to another party or parties
Most composers, lyricists, songwriters and publishers have pre-existing agreements with SOCAN. Those agreements grant the performing right to SOCAN so that it can administer that right on behalf of its members. Some creators also have pre-existing agreements with publishers, and some publishers have agreements with sub-publishers, or others. Therefore, some or all of the rights associated with copyrights are probably already granted under these various agreements. This means, therefore, that you can’t grant a licence to the CC (or any other party, for that matter) and you may be in breach of those agreements.
It also means that you can’t make exclusive agreements with someone, for example, a publisher, and at the same time, allow CC licences to be granted on a non-exclusive basis. Furthermore, if you co-create with other composers or lyricists, you may be in breach of agreements you have with them and, under Canadian law, you would not be able to bind them with respect to their interest in the work.
Remember that SOCAN, on your behalf, and on behalf of its entire membership (and members of all of its affiliated performing right societies), grants blanket licences to music users in both the online and off-line domains. SOCAN also grants rights to its foreign affiliated societies so they can license on your behalf in their respective countries.
If a music user is obliged under the law to obtain a performing right licence for the use of SOCAN’s repertoire under one of SOCAN’s approved tariffs, then a CC licence is not needed. In that case, a SOCAN licence is required and SOCAN will license the use; the user has the right to perform SOCAN’s repertoire; and SOCAN’s members will be compensated for the use under SOCAN’s distribution rules.
In fairness to the CC, on its website, it advises that you should check with your collecting performing rights society, noting that “if you are a member of a collecting society… you may not be entitled to license your work yourself under a Creative Commons licence because the necessary rights are not held by you but by the collecting society”. It also notes that the CC is “reaching out to collecting societies in those jurisdictions where this problem arises to try to find a solution that enables creators of content to enjoy the benefits both systems offer.” To date, however, no definitive solution is forthcoming, either in Canada or elsewhere.
CC licences may purport to apply to “non-commercial” uses that are not non-commercial, or that may be non-commercial but still require permission from the copyright owner under the Copyright Act.
Just because a use of a copyright-protected work is considered to be “non-commercial” by the CC, doesn’t mean that a copyright owner is not entitled to be paid for that use under copyright law. And while specific CC licences provide that use under the licence is restricted to non-commercial uses, the CC definition is vague.
For example, the CC definition of “non-commercial” could include free uses of your work on commercial websites that aggregate works for profit but that also include CC works. So even though “no money changes hands” in respect of the CC works per se, a site or another party may be earning money in some way from the use of the work or works under the CC licence (e.g. shipping and handling fees or an “access fee”). This means that a copyright owner may be giving up rights to control their work or to compensation for uses of the work that would otherwise be licensable under the Copyright Act. It may also mean that others can benefit financially from the use of works under a CC licence and the copyright owner would not.
CC licences can have international implications that need to be considered
CC licences purport to be global in effect, but copyright law, its rules and practices are still national, and continue to vary from nation to nation. This means that the terms of a Creative Commons licence in one country may not apply in the same way or even at all in another. This may have implications for both copyright owners and those who rely on CC licences. In some cases, for example, as a creator, you may or may not mind someone whom you don’t know in another country altering your work. And the fact that you may be “credited” under the CC licence may give you no comfort at all.
There are many other potential problems that can arise as a result of the use of CC licences. Therefore, the best course of action to take is to understand as much as you can about these licences and all of their implications before you decide to do anything.
While technology has changed our lives considerably, what has not changed is the need for a creator to be paid when their works are exploited, used or misused.
Often the most creative period in a composer, lyricist or songwriter’s life is when they are young. SOCAN is concerned that new creators trying to build a career may be tempted to give away some or most of their copyright’s potential earnings by releasing their works under a Creative Commons licence. But once that licence is signed they may never be able to earn money from that work again or at the very least, the work’s future earning potential may be reduced. As always, caveat auctor (author beware).
* James, Steven from Picture use does not sit pretty: Virgin Mobile and Creative Commons are in the frame over picture rights for user-generated content from Copyright World Issue #175, November 2007