Tuesday, March 02, 2010

When a Creative Commons License becomes a Pain in The Ass, or Worse, A Pain in Your Bottom Line...

Last week I entered into an unfortunate discussion regarding Creative Commons licensing, free content, and intellectual property theft to the tune of Copyright Hijacking. See the discussion over on Tele-read with author Piotr Kowolcyzk titled: I have a Ghost Publisher at Amazon ... Please Help!

In light of this, I wanted to talk about Creative Commons licensing because, frankly, this can happen anywhere in any country when authors use file sharing sites like Scribd and Wattpad among others to publish their work for free. Let me clarify a bit, giving away free content and file-sharing are two completely different things. CC Licensing and Free Content are not mutually exclusive. You can allow free downloads of your work and still maintain your standard copyright “all rights reserved.” However, some file share sites like Scribd automatically default to a Creative Commons License, and if the author is not aware of this, they may find themselves in a bit of a pickle. Yes, that share button means “share.”

Readers who frequent file sharing sites often get confused between standard Copyright and Creative Commons Licensing. They assume that because the title is a free to read that it was posted intentionally by the author using a Creative Commons license, which grants the end user license to post and re-distribute the work without permission from the author. But there are many different types of CC licenses and they are also used to allow the creation of derivative works as well allow the sale of the work by third parties not affiliated with the copyright holder. Unfortunately, this is the gamble an author takes when they choose to use file share sites and CC licensing. You have to read the fine print about licensing before you post your work. You also need to know how CC licensing works. The worst case scenario with CC licensing is that, on occasion, the end user assumes they are free to do what they will with the content.

In the case of Mr. Kowolcyzk’s work, the end-user listed the title for sale on Kindle alongside the author’s original. The listing appeared under the Sugar Land Press name and even went so far as to slap a standard copyright notice “all rights reserved” on the work, which is illegal, since creative commons work can only be re-distributed and used under the same license it was originally obtained.

So is it illegal for the end user to sell someone else’s content? Well, it depends on the creative commons license that was used when the material was published on the file share site. Authors should be sure that the same licenses are being used consistently no matter the publication location. Unless the license specifically was an: Attribution/Non Commercial (By-NC) then the end user can turn around and sell it — legally. However, they have to attribute you as the author, and while they can sell it, they cannot claim themselves as the copyright holder, as the nature of a CC license is that it is non-exclusive and irrevocable.

From CreativeCommons.org

Work licensed under a Creative Commons License is protected by applicable copyright law. This allows Creative Commons licenses to be applied to all work protected by copyright law, including: books, plays, movies, music, articles, photographs, blogs, and websites. However, the license may not modify the rights allowed by fair use or fair dealing or exert restrictions which violate copyright exceptions. Furthermore, Creative Commons Licenses are non-exclusive and non-revocable. Any work or copies of the work obtained under a Creative Commons license may continue to be used under that license. In the case of works protected by multiple Creative Common Licenses, the user may choose either.

There are six major licenses of the Creative Commons:
Attribution (CC-BY)
Attribution Share Alike (CC-BY-SA)
Attribution No Derivatives (CC-BY-ND)
Attribution Non-Commercial (CC-BY-NC)
Attribution Non-Commercial Share Alike (CC-BY-NC-SA)
Attribution Non-Commercial No Derivatives (CC-BY-NC-ND)

There are four major conditions of the Creative Commons: Attribution (BY), requiring attribution to the original author; Share Alike (SA), allowing derivative works under the same or a similar license (later or jurisdiction version); Non-Commercial (NC), requiring the work is not used for commercial purposes; and No Derivative Works (ND), allowing only the original work, without derivatives.[12]

As of the current versions, all Creative Commons licenses allow the "core right" to redistribute a work for non-commercial purposes without modification. The NC and ND options will make a work non-free.

As of 2010, all current licenses require attribution of the original author. The attribution must be given to "the best of [one's] ability using the information available". Generally this implies the following:

Include any copyright notices (if applicable). If the work itself contains any copyright notices placed there by the copyright holder, those notices must be left intact, or reproduced them in a way that is reasonable to the medium in which the work is being re-published.

Cite the author's name, screen name, or user ID, etc. If the work is being published on the Internet, it is nice to link that name to the person's profile page, if such a page exists.

Cite the work's title or name (if applicable), if such a thing exists. If the work is being published on the Internet, it is nice to link the name or title directly to the original work.

Cite the specific CC license the work is under (optional). If the work is being published on the Internet, it is nice if the license citation links to the license on the CC website.

Mention if the work is a derivative work or adaptation, in addition to the above, one needs to identify that their work is a derivative work i.e., “This is a Finnish translation of the [original work] by [author].” or “Screenplay based on [original work] by [author].”

So to recap, once you CC a work, you cannot take it back. This is why I strongly advise authors against a CC-BY or a CC-BY-SA license if they plan to sell the work commercially at a later time. Actually, you can use a standard copyright license and still give your work away for free. It eliminates this problem entirely. But watch those file share sites, some of them default to a CC license only and once you are in, you cannot revoke it.

Walt Gordon Jones explains everything nicely on his site in simple terms, and he has some suggestions for attacking the issue of license violations. The author will always remain the legal copyright owner. CC doesn’t replace Copyright. The author does lose the “all rights reserved” clause, but the end user does not gain them.

On a final note: I remember researching Feedbooks.com for a blog post last year when I was deciding myself if I was going to ebook my work, if my memory serves me, and in the end I had decided not to list my work with them because of a oddly worded clause in their terms of service, which states:

4. Intellectual Property Rights
FeedBooks being registered in France, the content of the Website is subject to the French legislation on copyrights and other intellectual property rights. However, the electronic books offered for reading are free from copyrights as, in accordance with the legislation of France, the said books fall in the public domain.

The wording here gives the impression that any/all the electronic books listed on their site are in the public domain. This can be very confusing and lead to issues with copyright infringement. So always check your file share site for ambiguous language.

I think the Creative Commons has its place in the world. Some authors have had a lot of success getting the word out by allowing file-sharing and derivative works. I just think authors need to be careful with CC licensing and make sure they choose the right license for the right work. Not to mention most readers are just as uneducated about CC licensing, and the ones that understand it know exactly what they can get away with and how to exploit it. If an end user violates your license, they lose it, and you can pursue for infringement. That’s the bottom line. So don’t let your work get away from you.

Zoe Winters shares her frustration with CC licensing as well.

Cheryl Anne Gardner

1 comment:

JFBookman said...


Thanks for this post. Copyright and the Creative Commons system are very poorly understood by authors, from my experience. This is one of the reasons I write so often about copyright (although I'm really no expert) although Creative Commons really needs a thorough explanation. I hope your article gets some distribution because authors need to be sure they understand exactly what they are in for when they push that "publish" button.