Creative Commons Licensing: Types, Enforceability and Potential Problems

Creative Commons Licensing: Types, Enforceability and Potential Problems

Creative Commons ("CC") is a non-profit corporation "dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright."  CC provides free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.  According to CC founder, Lawrence Lessig, the current permission culture is one "in which creators get to create only with the permission of the powerful, or of creators from the past."  This post outlines (i) the types of licenses CC provides, (ii) the enforceability of CC licenses and (iii) some potential problems with CC licenses.

(i) CC License Types

Traditionally, copyright adheres automatically on fixation.  Once a work is copyrighted, it is fully protected by the legal system and the author holds all its rights.  Effectively, this means that everyone is prohibited from copying, adapting or publicly performing the work except the author.  However, authors that elect to license works using CC licenses only reserve very limited rights for themselves.

All CC licenses are written from combinations of the following four basic conditions: (1) attribution - the author permits others to copy, distribute, display and perform the copyrighted work, as well as derivative works based upon it, but only if they give credit to the author; (2) share alike - the author allows others to distribute derivative works only under a license identical to the license that governs the original work; (3) non-commercial - the author does not permit the work to be used for commercial purposes; and (4) no derivative works - the author permits others to copy, distribute, display and perform only verbatim copies of the work, not derivative works based upon it.  From these four conditions, there are six regularly used licenses: (1) attribution alone; (2) attribution and non-commercial; (3) attribution and no derivative works; (4) attribution and share alike; (5) attribution, non-commercial and no derivative works; and (6) attribution, non-commercial and share alike.

(ii) Enforceability of CC Licenses

While there have not been many cases involving CC licenses, Lawrence Lessig has explained the theory underlying the enforceability of many free software, open source and CC licenses: "[w]hen you violate the condition, the license disappears, meaning that you're simply a copyright infringer.  This is the theory of the GPL and all CC licenses.  Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license."

In congruence with Lessig's view, in Jacobsen v. Katzer, decided on August 13, 2008, the United States Court of Appeals for the Federal Circuit upheld a free copyright license, and explicitly pointed to the work of CC.  The Court held that free licenses such as CC licenses set conditions on the use of copyrighted work.  As a result, licensors using public licenses can seek injunctive relief for alleged copyright infringement, instead of being limited to contract remedies.

In addition, CC licenses have been upheld outside the United States.  In 2006, Adam Curry won a lawsuit against the Dutch magazine, Weekend.  In the suit, the District Court of Amsterdam found that when the magazine published photos taken from Curry's flickr account without asking for permission, it violated the non-commercial condition of the attribution, non-commercial and share alike CC license that governed the use of Curry's pictures.

(iii) Potential Problems with CC Licenses

While CC licenses may effectively generate publicity for creative works, Professor Jane C. Ginsburg has pointed out that the licenses can create problems for professional authors.  Specifically, she highlights the following considerations that authors should be aware of: (1) CC licenses do not require the author to be directly compensated for the uses made of a work; (2) CC licenses are non-exclusive - as a result, while an author can directly exploit, or authorize others to exploit, an original work, the author can no longer grant exclusive rights to engage in the exploitations; (3) works licensed under a CC license are unlikely to draw commercial interest due to the author's inability to offer any exclusive rights; and (4) once publicly licensed copies of a work are available, more licensed copies will be generated, and it will be too late to reverse course for any particular work.

Thus, while the six CC licenses have been carefully crafted to increase sharing and are likely enforceable consistent with copyright law, they may be better suited, as Professor Ginsburg has argued, to creators with well-remunerated day jobs, as opposed to professional authors.