Lawyer Confused by Creative Commons

When it comes to copyright, everyone’s an expert it seems. And often, what they think they know they really don’t. This is actually MORE common than you’d think with lawyers, who often become experts in a certain type of law, and think they can lecture other kinds.

It’s not so rare, Law professors make lousy litigators, Litigators make crappy contractual/corporate lawyers, and corporate/contractual litigators are crap at most things. It’s why lawyers have specialties, be it personal injury (ambulance chasers), criminal defense or copyright.

The problem is when you get a lawyer that gets woefully out of their depth, you get some pretty terrible advice from them. Take this piece by lawyer, and legal template hawker Vanessa Emilio (oh look, she’s an ex corporate lawyer… from the banking industry no less!) on a site aimed at start-ups,  focusing on Creative Commons licenses.

Are you giving away your copyright for free?

Wow, straight in with the loaded headline. Answer is…. NO!

George Costanza: Who buys an umbrella anyway? You can get them for free at the coffee shop in those metal cans.

Jerry Seinfeld: Those belong to people.

Hmmm… Just like the umbrellas belong to people, so does copyright. And just because it is there, does not mean it is free to take and use as you like. And as it belongs to you as creator, why would you give it away?

Ok, we’ve already gone to the ‘copyright is property’ route, although it’s not. It’s an assignable right, but not property.

If you add a Creative Commons (CC) licence to your work, you do just that: you give general rights to the public to use the work in the manner specified, for free. And you cannot change your mind and revoke this licence.

So, wait a second, you ‘give away your copyright’ (that is what ‘you do just that’ means)? No, of course you don’t, as she admits in the rest of the sentence. You give the public certain abilities via a blanket license. And it’s absolutely UNTRUE you can’t change your mind and revoke the license as well. You can revoke it at any time, but only for new work. Work done under the old license stays licensed. Any lawyer should know that.

So what is a Creative Commons licence?

Every creative work has automatic copyright protection from the moment it is actually ‘created’. Nobody can use that work without the creator’s express permission (through a licence) except where ‘fair use’ is involved.

Again, categorically untrue. You don’t get copyright the moment it’s created, you get it the moment it’s fixed into a tangible medium. If it’s a discussion or an activity, it’s not copyrighted at all, unless someone recorded the audio, or wrote down what’s happening, or took a video, and then the copyright would belong to… the recorder, not the creator. It’s at least somewhat heartening that she does at least acknowledge fair use, however, which is what is enabling me to copy her post verbatim for instance.

A CC licence is one way that a creator of copyrighted works can give extra rights to other people, such as permission to use, share or modify a piece of work subject to certain conditions imposed by the creator. There are other specific licences that creators of work can grant but a CC licence is one that is given to the general public without the need to check with the creator.

Here this whole paragraph boils down to “a CC license is a license. There are other licenses available (somewhere)”. Great, thanks, Who knew that a license was a license, and that others were available. Amazing!

The intention behind the CC licences was originally to allow certain works to be free and open to the industry to help development, research and to improve certain works for the public interest.

That’s actually true of just about every blanket license, and indeed, most copyright laws of the 19th and 20th centuries.

What is the problem?

In recent years, there has been a rise in the use of CC licences, particularly with the growth of the internet.

Of course there’s been a rise in CC licenses in recent years, Creative Commons is only 10 years old, and since the licenses focus on remixing and re-sharing, they’re pretty obviously aimed at the online market. It’s a bit like saying ‘facebook user numbers have been rusing in recent years, particularly with the growth of the internet.’

There is also a lot of confusion and lack of understanding about whether and how they work, as well as why you would give your copyright away for free.

This sentence then breaks back into complete ignorance. There does indeed seem to be a lot of confusion and lack of understanding about whether and how they work, including by the author, which is why she seems to think using one is ‘giving your copyright away for free.’ In fact she couldn’t be more wrong. As a license, Creative Commons RELIES on Copyright, and permits certain uses under it, it doesn’t destroy it, tarnish it, weaken it or anything else. To imply otherwise is sheer unadulterated ignorance.

One of the more common problems is that designers, photographers, writers, jewellery makers and other creative people have been adding them to their website businesses without understanding what they mean. Then they find others have copied their work.

This is a phenomenon well known on the internet, called PEBKAC. See, when you pick a CC license, you’ve got to select what you do and don’t want to grant. You are then supposed to link to the summery page. Both the selection and summery page are in nice, clear human-readable English, and specify exactly what rights and abilities you are offering. If you don’t read that, the blame is certainly on yourself, and not on any kind of nefarious licensing deal out to plunder your rights.

What’s more, as a lawyer, Vanessa should have been reading the legal code bit too, which she, as a self-proclaimed “qualified lawyer” would be much better off reading, especially the Australian regionalised one (here’s the Australian version of the license I use, for instance, in both human-and lawyer-readable formats). The only one guilty of not understanding CC licenses though is Vanessa herself.

How much protection can a CC licence offer you? Does it affect the copyright in your work? Are you really giving your work away for free? You really need to know what the effect is and what they do, before you use them.

Now there’s some puzzling questions, and one which you would think would come with some answers, but no, nothing. Some even question (incorrect) assertions made earlier in the piece. It’s like she really doesn’t know and now worries. To answer them in order though it’s Unchanged, no, and no. And as for knowing their effect, it might help if some lawyer didn’t keep contradicting herself through a piece that seems to be focused mainly on myths.

And despite the increase in popularity of CC licences, they have also attracted criticisms about their use and effect.

Wikipedia has a big section on the criticisms and the majority of them are that they are ‘not permissive enough’, which is an odd thing to try and bring up, after having spent 400+ words so far trying to claim they are deceptively permissive.

Why would I use a Creative Commons licence?

Some people don’t understand why you would give away your work; especially if you cannot ever take away the licence or change your mind about it.

As noted earlier, you can certainly take away the license. However, you can’t revoke the license from those that have already used it, and if they’ve similarly licensed it (as required by a Share Alike license for instance) then your relicensing is probably not going to be effective, but it CAN be done. And of course you can change your mind. The vast majority of work here is all licensed CC-BY-NC-SA, but at any time I can change my mind and instead put it CC-BY-SA, or CC-BY, or even CC0. That’s changing my mind, and it’s 100% permissible. It’s another example of just how badly Ms Emilio understands copyright, and licensing.

It may seem as though a CC licence is actually more about protecting the people who have been granted the licence rather than protecting the creator and the work. The creator still retains their rights that they have decided to reserve under the CC licence, but they are giving some of these rights up intentionally.

*Sigh*how many times must we go over this? You’re not giving up any rights. You’re just licensing them. Having released a book (under CC) and sold some work to a textbook company (which was originally released under a CC license) there is little incompatibility, and I’ve certainly not given up any rights at all. Indeed, the sloppy language again contradicts itself within the same sentence – keeping the rights AND giving them up at the same time isn’t possible.

If it helps, just think of a CC license as a pre-authorised licensing agreement, or, an automatic agreement from me on terms I’ve already made clear. That’s what CC licensing is. It’s really simple.

Confused?

Yes, she is.

Yes, it is not a clear concept to many yet either. Some argue that if you provide a CC licence, you cannot revoke it so why do it in the first place? Once you give the CC licence to use your work, you cannot take it back.

We’re back at revoking. Part of it, as she notes in a comment responding to her lack of accuracy on this topic, depends on what you mean by revoke. Can you make a note and say ‘from this day on, this work is no longer CC licensed’? Yes. Can you pull the licensed authorisation from anyone who has already made use of your work? No. The CC wiki even explains this, and she seems to have read it, because she links to it in the comments.. Like any license or offer, it can be accepted at the time, or withdrawn, but you can’t go back and say ‘6 months ago you made an offer, which you withdrew 5 months ago, I’m agreeing to your position back then’. It doesn’t work like that.

So what happens if you have given a right to share and copy your work and someone develops and transforms the work, acquiring their own copyright of the newly developed work? The second creator could argue that their “updated” work is substantially different, such that the initial CC licence no longer applies and they own the new work. This can lead to a lot of problems with the copyright ownership of the work.

Oh boy, here’s where we see once and for all that either Ms. Emilio really doesn’t understand copyright law, or is deliberately writing a hatchet piece. Any “qualified lawyer” (or indeed regular reader) should be able to see the problem here. A creative commons license is a way of pre-authorising uses of a copyrighted work.

What she’s really talking about are derivative works. Guess what? They have absolutely nothing to do with CC licenses. The only way to make the original CC license not apply, is if the underlying copyright on which the CC license is based doesn’t apply, and that would happen no matter what license you release it under, be it CC, copyleft, or none. The only problem with ownership in this kind of situation is one created by ignorant or greedy lawyers.

The main point to all this is that if you own valuable copyright and if you don’t know what, why or how you may be using a CC licence, do not do so without checking with a lawyer. So do not just pop it on your website without fully understanding what it means. You may think it’s a nice idea to allow others to ‘share’ your images – until you find someone has used it to make similar designs.

Here we come to the crux. 600+ words of worry which boils down to ‘hey consult a lawyer’ and then ‘someone may have infringed’. Perhaps it’s no coincidence then that Ms Emilio’s company sells a form copyright infringement notice, a ‘fill in the blanks’ form for a ‘bargain‘ price of Aus$30 (£16.40 or US$27 at current rates). Because we all know how well ‘experts’ do at making competent, accurate takedown notices, so there won’t be any forseeable problems here, especially when guided by a company that can’t understand Creative Commons.

Perhaps more amusingly, they also sell privacy policies, terms and conditions and other disclaimers for a website, but to ensure you don’t just copy their own site’s policies and T+C etc., they’ve posted theirs to the site as an image. You’d think a legal services company would know better, especially on a subject they’re selling, and where they state “Our documents and templates are guaranteed up-to-date and compliant with the latest Australian legislation. Our templates and agreements are regularly reviewed by legal specialists to make sure they comply with the latest Australian legislation.”

See, the problem is, as an image file, it’s completely unreadable to anyone who requires the use of screen reader software, and that’s naughty under Australian law, specifically the Disability Discrimination Act 1992, Section 24(b). I’d consider making the Terms and Conditions completely unreadable to any sight-impaired visitor a discrimination in those Terms and Conditions.

Legal experts, No. Legal buffoons, absolutely.