I have finished reading some interesting commentary about Creative Commons in The Scholarly Kitchen, a blog about academic publishing. In an article entitled Does Creative Commons Make Sense? , Ken Anderson asks whether Creative Commons is useful. It is always good to read commentary that challenges one’s firmly held ideas, the lack of examination of beliefs is one of the biggest obstacles to honest debate. I did not find anything in the article that has made me reconsider my ongoing support for the ideals implemented by the Creative Commons movement, so I will respond to the article at hand.
The first task in reading the article was to try to ascertain what the author’s main argument against Creative Commons is, as at times it reads like an attack on licence complexity and authors choosing complicated non-free licences; there is also a section digging into CC finances and donation from the likes of RedHat and Google. The argument, as far as I can tell, seems to boil down to the statement that Creative Commons is an unnecessary layer that sits on top of copyright, and that it is a complicated and expensive layer at that. The author states:
“Do scholarly authors need Creative Commons to grant rights out of copyright? I don’t see why, when copyright itself provides most of the standard rights authors are most comfortable with (educational and other benign uses), and when there are other alternatives that are simpler, more straightforward, and less likely to sow widespread confusion.”
This is an argument that runs through the article: if copyright has built-in safety nets in the shape of fair use, then authors do not need these complicated sets of licences, as users could fall back on fair use, hence Creative Commons is largely unnecessary because most authors choose the most restrictive licences anyway.
But is it unnecessary?
Firstly, the article seems to be very parochial, as it ignores the fact that fair use does not exist in any other jurisdiction, and that most of us have a system of exceptions and limitations that is not as open-ended as the US version. Similarly, registration is only needed in the US for litigation, the rest of the world follows the no-formalities system established by the Berne Convention. Therefore, the argument fails right away outside of the USA. Creative Commons is wildly popular around the world, with chapters and ported versions in over 50 jurisdictions (by the way, jurisdiction is not a term coined by CC, it’s a technical legal term). This is a very important point, as CC contains permissions to perform acts that are not part of any exception or limitation in many countries.
Just to give an example, private copying is still not recognised in the UK’s fair dealing regime; as all CC licences allows private copying, that is a tangible useful permission that exists with CC which does not exist with full “all rights reserved” copyright. And there are examples like those in various jurisdictions of which I am aware.
Furthermore, it seems like the author overestimates the reaches of fair use, and underestimates the usefulness of having a licence that specifically allows one to perform some actions that they would otherwise not be able to do. When presented with choices about copyright, institutions are very conservative. I have been in conversations where libraries or museums decided not to publish something even if their actions fell squarely under fair use or fair dealing, just to be on the safe side. NOBODY likes getting sued, and CC licences create an assurance that the work can be used under certain conditions, without having to rely on the malleable and often unpredictable nature of fair use jurisprudence. With a CC licence, an author can signal to the world that it is OK to make certain uses of the work, and users can rely that they will not be sued. This is an invaluable contribution of Creative Commons to the sharing economy.
Finally, while the argument states that there is a large majority of people choosing restrictive licences, there is still over 30% of works that use free licences such as BY-SA or BY. This means that CC is incredibly valuable to a large number of authors and users.
But to me the main evidence that CC is useful is that it has become widely used. It is the licence of choice in open access publishing, and it is fast becoming the de-facto international standard for the release of public sector information, with users such as the museums, libraries, international organisations, and even the White House. On the face of such widespread use, to state that CC is not useful seems to me to be a generalisation of a personal preference at best, or a denial of Monty Python proportions at worst.
After all, what has Creative Commons ever done for us?