OPINION: Working with Creative Commons licences

In New Zealand, Creative Commons licences are being used by government agencies and local authorities to release copyright works for re-use by others through the New Zealand Government Open Access and Licensing framework (NZGOAL)

Open source copyright licences have been used since at least since the 1990s, but it is only in recent years that they have become a widely used method for creative collaboration. One of the most popular forms of open source copyright licences is Creative Commons licences.

Origins of Creative Commons

The story goes that Professor Lawrence Lessig, professor of law at the Stanford Law School Centre for Internet and Society, was arguing the case Elred v Ashcroft before the United States Supreme Court. The case challenged the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act which extended the copyright term for certain works. This legislation prevented a number of works from entering the public domain in 1998 and in following years, as would have occurred under the previous law. As a result, works that the plaintiff publishers had worked with and were ready to republish were unavailable due to the extended copyright terms.

The lead plaintiff, Eric Elred, was sceptical about whether they could win the case (and indeed they lost), but wanted to make sure that the litigation had a more lasting impact than being a losing case at the Supreme Court. In late 2002, Lessig founded the Creative Commons movement in response to enable people to share their copyright works for reuse by others.

Creative Commons – some rights reserved

Creative Commons licences allow users to share, reuse and remix copyright material, legally. There are a range of different licence types designed to cover a spectrum of rights. Generally, they grant a worldwide, royalty-free, non-exclusive, perpetual licence to the user to reproduce, display, perform, and distribute copies of the work. All rights of the copyright owner under copyright legislation and which are not expressly granted by the licence are reserved. Hence the phrase – "some rights reserved".

The "Attribution CC-BY" licence is the most accommodating of the Creative Commons licences available. It allows others to distribute, remix, tweak, and build upon the work, even commercially, as long as the original creator is credited.

At the other end of the spectrum is the "Attribution-NonCommercial-NoDerivs CC-BY-NC-ND" licence. This is a more restrictive licence, which allows users to download and share works with others, provided that the authors of the works are credited. Users cannot modify the works in any way or use them commercially.

Creative Commons licences are built in three layers:

Legal Code: the "legal version" of the licence. The Legal Code is written in language familiar to lawyers and is the source of the rights and permissions set out in each licence.

Commons Deed: the "human readable" version of the Legal Code. The Commons Deed is designed to be understood by the general population. It is intended to contain the same rights and permissions as set out in the Legal Code but is written in plain English.

Machine Readable: a summary of the key freedoms and obligations is written into a format that software systems, search engines, and other kinds of technology can understand.

While this may sound like licence overkill, the aim of the three layers is to ensure that the spectrum of rights available under the Creative Commons system is widely understood by creators, users and even the Web itself.

Who uses Creative Commons?

A large amount of material is licensed under Creative Commons licences. Flickr, Soundcloud, Vimeo and YouTube, all well-known content sharing platforms, give creators the ability to make their work available under the various Creative Commons licences. This allows users of these websites to search for material based on their intended end use.

Businesses are taking advantage of the wealth of material available under Creative Commons licences. For example, Haiku Deck is an app for iPad for creating presentations. The app identifies typed words and pulls related images from Flickr, all of which are made available under Creative Commons licences. Haiku Deck has access to over 35 million images. Modifying the Creative Commons licence types used when searching allows Haiku Deck to sort images by availability for commercial and non-commercial use. Attribution is automatically embedded into the presentation and a few clicks will take you to the author's Flickr profile.

Fotopedia uses a similar set up for its Fotopedia Heritage app. Fotopedia Heritage is a collaborative photo encyclopaedia of 890 UNESCO heritage sites around the world. Users can read descriptions about each site from UNESCO and Wikipedia, browse an interactive map and view a huge curated collection of images. More than 18,000 of these images are made available to Fotopedia under Creative Commons licences.

Al-Jazeera has also jumped on the Creative Commons bandwagon. In 2009, Israeli military imposed a number of restrictions that prevented international news outlets from reaching the Gaza Strip and reporting on the conflict. Al-Jazeera was the only news outlet with a correspondent on the ground in Gaza. To facilitate access to Palestinian film, Al-Jazeera set up a news repository and made all of its Palestinian film available under the CC-BY licence. News broadcasters and film producers could then access real information about the situation in Palestine. A similar approach is being taken by Syria Deeply, a news collecting and reporting platform, to release more information about the ongoing Syrian conflict.

In New Zealand, Creative Commons licences are being used by government agencies and local authorities to release copyright works for re-use by others through the New Zealand Government Open Access and Licensing framework (NZGOAL). NZGOAL aims to standardise how government copyright works are licensed for re-use, and recommends using Creative Commons licences.

Works available under NZGOAL include spatial datasets from Wellington City Council, GNS Science and the New Zealand Transport Agency, and data from Te Ara – The Encyclopedia of New Zealand and Statistics New Zealand.

Potential Pitfalls

The advantages of using Creative Commons licensed copyright works are obvious. Creative Commons licences themselves are free to use, have been widely adopted and are flexible. The permissions are pre-applied so there is no need to request permission from rights holders to reuse individual works. However, there are a number of potential pitfalls for those considering making their work available under a Creative Commons licence.

One of the aims of Creative Commons is to make copyright works widely available to the public. However, this creates a significant drawback for licensors who have no control over who will reuse their work. If a work is reused in a manner that the copyright owner does not approve of but the reuse is compliant with Creative Commons, there is nothing the copyright owner can do to prevent it.

Another potential pitfall of Creative Commons licences is that the licences are irrevocable. This means that you cannot withdraw copies of a work released under Creative Commons if you have a change of heart in the future.

Although the copyright holder remains free to use works for any purpose, including for commercial gain, commercialising works that are available under Creative Commons licences can be problematic.

Creative Commons licences cannot be modified to require users to pay a royalty or fee for using material. However, copyright owners can distribute their work through multiple methods. For example, a musician can make a song available under a non-commercial Creative Commons licence and include the same song on their new album. The musician will earn royalties from the album but not from the version of the song available under Creative Commons, which can be shared for free by an unlimited number of users.

The other major question about Creative Commons is the enforceability of the licences. New Zealand courts have not yet considered Creative Commons licences, although Dutch, Belgian and German courts have upheld the licences. As users may be located anywhere in the world, it seems likely that choice of jurisdiction may become a key question in some cases.

Earl Gray is a partner at Simpson Grierson. He is regarded as one of New Zealand's leading intellectual property lawyers and co-heads the firm's Intellectual Property team.

Claire Foggo is a senior associate in the Simpson Grierson Intellectual Property team. She has extensive experience in all aspects of commercial and contentious intellectual property law.

Kate Tidbury is a solicitor in the Simpson Grierson Intellectual Property team.

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