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?