More Gibberish from Creative Commons Corporation

Readers of MTP will remember that we have long cautioned professional artists about having anything to do with Creative Commons Corporation licenses. This criticism is mostly from the music point of view, but some illustrators and photographers are also concerned (see “Public Licenses: The Gift that Keeps on Giving” by Professor Jane Ginsburg and “The Tragedy of the Creative Commons” by Andrew Orlowski).

The biggest problem that we’ve had with the Creative Commons Corporation licenses is that the license is internally inconsistent in an artful sort of way–or as some might say gibberishical. When reading these things, you get the feeling that the drafter was genuinely trying to say something serious, and clearly took themselves very seriously, but simply lacked the knowledge to get it right with all good intentions.

The real question, of course, is why anyone on the receiving end would accept what the license refers to as the “lawyer-readable code” (a phrase that surely came from the mind of a student that might have been a cute idea for 5 minutes) which seems to be preoccupied with giving the illusion of a meaningful grant of rights.

Consider this gibberish in the Creative Commons Corporation FAQ:

“So I don’t have to pay to use Creative Commons-licensed works if I comply with the license terms?

As a general rule yes [meaning, I think, “yes you do not have to pay” in case you just got lost]—Creative Commons licenses are made available under royalty-free licenses. In the case of Creative Commons-licensed works that are licensed for NonCommercial use only, the creator or licensor reserves the right to collect statutory royalties or royalties under compulsory licenses for commercial uses such as those collected for public performances; so, you may still have to pay a collecting society for such uses of Creative Commons licensed works. However, these are indirect payments, not payments to the licensor.”

Note: In the U.S., the compulsory mechanical royalty for a song is payable on units made and distributed–not commercial vs. noncommercial. A very, very common mistake, but a mistake nonetheless.

The performance royalty is payable under blanket society licenses for public performances–not commercial vs. noncommercial.

I have absolutely no idea what is meant by “indirect payments” and I cannot find the phrase in the Copyright Act. But if such “indirect payments” exist in relation to a copyright (whatever they are) would these payments not be made to the copyright owner (presumably the licensor) at least in part? If not, then to whom are they made? And if someone other than the licensor is entitled to these “indirect payments” (whatever they are) how could the licensor have standing to waive the right to receive the monies?

Not to worry, as a licensee you can always fall back on your indemnity under the Creative Commons Corporation license if there’s an unexpected royalty obligation.

Oh, sorry, I forgot–there is no indemnity.

So in fairness, perhaps the FAQ suffers from trying to deal with too many different categories of copyright at once without distinguishing them. But wouldn’t it have been simpler just to say a licensor under a noncommercial license waives all the rights they can under applicable copyright laws, but that some rights may not be waivable in certain jurisdictions. And that the noncommercial license doesn’t cover commercial uses?

And then there’s the song titles.

Makes you want to say, “Deal me in!” don’t it?

Stay tuned.

5 thoughts on “More Gibberish from Creative Commons Corporation

  1. Your reading the CC licenses like they're meant to replace standard copyright law. They're meant to complement them. The fact that the standard mechanical license only counts units made and distributed is one of the reasons the CC licenses exist.If you wanted to criticize CC licenses for failing to describe the commercial vs noncommercial demarcation in sufficient legal terms, I'd agree that this is a problem. But it's not a problem that they make the distinction at all.

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  2. I'm actually not, I fully realize your point. It is common (no pun intended) for licenses to modify the terms of the copyright act (at least in the US). Using the U.S. statutory mechanical as an example, that stat rate is not "standard" it is compulsory. Meaning that unless the copyright owner waives the statutory mechanical (which presumably is what is supposed to happen in the Creative Commons Corporation license) the licensee has the obligation to pay the statutory rate. The FAQ is confusing, at least to me and at least as applied to songs, because it seems to be confounding concepts.Of course the two big problems with the Corporation license from a licensee's perspective is that it is impossible to distinguish a Corporation license for a song versus a recording of a song because the license is for "audio" and also that there is no indemnification. And since Creative Commons Corporation does not verify who the licensor is, the licensee may have difficulty finding the person who granted the license in the first place.Which could mean that a large number of these works become "orphans".

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  3. You're not criticizing the license itself here. You're criticizing the explanation of the license for not having sufficient legal rigor. That makes no sense to me.Here's my (non-lawyerly) understanding of the situation: You have a standard mechanical reproduction fee, and anybody who pays the fee can use your work for specific purposes. If someone releases work under a non-commercial CC license, you can still use the work for those purposes, so long as you keep paying the fees. If they release it under a commercial-ok version of the license, you can choose to license the work under that instead, and thereby avoid paying the fees.You still need to show that — against all evidence — the CC licenses don't meaningfully grant rights to others while meaningfully reserving other rights to the author. Check out section 3e of the "code" of their most permissive license, which deals directly with the issue of licensing schemes. Note that these sections don't appear in the non-commercial versions, so all the old statutory licensing rules should still apply.The commercial waiver appears to boil down to, "If the owner can waive fees, he does. If he can't, he does not." If your multimillion dollar business model depends on not paying those royalties, have a lawyer do some checking.

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  4. How does Creative Commons make orphan works more likely? If the person reproducing the material is following the terms of the license, then the attribution should remain intact. So it should be no harder to find the author than it would be otherwise.More important, orphan works become less important if there is a CC license attached to them. Under normal orphan work situations, you can't do anything with the work until you explicitly contact the author. If there is a CC license, you can do all sorts of things without getting permission.

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  5. I think that Creative Commons Corporation licenses make orphan works problems much more likely because Creative Commons Corporation does not engaged in any record keeping or verification that the licensor actually has rights in the first place–even though there is an opportunity to get the information and verify the licensor's identity at the outset. As I read the rebuffed attempts at orphan works statutes in recent years that I am most familiar with (i.e., the US and UK and to a certain extent EU guidelines), I think Creative Commons Corporation noncommercial licenses would potentially be an especially fertile ground of commercial orphan works misappropriation. This is because my hunch is that 20 years on, finding any of these licensors to get permission to use their works commercially in say a Northrup Grumman commercial for a jet fighter, a beer premium or a tobacco tchotchke, will be well nigh impossible. It will probably be no more fertile a ground for commercial exploiters looking for a cheap deal than say identifying works by artists who likely died in a natural disaster, but a fertile ground nonetheless. (Which is the origin of the "Katrina exception" that local New Orleans artists asked for in the last attempt at an orphan works statute in the US.)It is these commercial applications that seem to give artists the most agina around the world, especially illustrators and photographers. Maybe I'm missing something, but I think that even the noncommercial Creative Commons Corporation licenses could fall into the orphan category. This is not helped by the lack of even a rudimentary registry, which could probably be maintained for far less than Creative Commons Corporation raised in 2008.I looked at your comment re Orlowski and unfortunately will not be posting as I think it's a bit too close to libel for my taste, although clearly heartfelt which I appreciate.

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