[Resource of the Day] – Is a Creative Commons License Practical For a Publisher?
Copyright law is complicated, and it’s really showing its signs of age now that the Internet is in common use. I have a copyright notice at the bottom of every page of this site that states that this material is covered by US copyright law, and that it may not be reproduced for any reason without my consent. I do that to protect the integrity of my work — I’ve spent hours preparing some of these articles, and I don’t want an unscrupulous person to be able to reprint my work, not attribute it to me, and then get away with it when I find out about it. Copyright law says that as the author of the work, I automatically have the right to control how it’s used. And that’s great.
I really don’t mind if my work is reprinted or used for noncommercial purposes. Every now and then, I hear from someone who’s in a writing group or who is teaching a workshop who wants to hand out my Comic Book Writer’s Guide. I need to revise it, but hey, they’re welcome to it, as long as they’re not charging anyone for it. My only stipulation is that they credit me and reference the URL of my website.
But there are loopholes in this system that allow people to use my work for commercial gain, whether I like it or not. For example, if someone wants to parody a piece of writing I’ve published, they are legally entitled to do so… so long as it’s not longer than the original piece and contains enough original writing that it’s clearly a different piece of work. If someone wants to write a biography about me and use large chunks of text from individual articles on this website, they’re permitted to do so, without my consent, under the “fair use” guidelines. (Here’s a detailed explanation of what those provide.) And if someone wants to take my work, change just enough of it that it’s original, and republish it without attributing me, they’ll probably be able to get away with it under the law, because I have to prove that they actually plagiarized my work in order to stop them from using it. That’s a problem.
And there are flaws, too. Most people who want to read my work will read my website. But what if someone wants to make a copy of an article I wrote and file it away for reference? If my copyright language does not state that they’re allowed to do so, and carries that ominous line, “All Rights Reserved,” they’re violating my copyright. The same is true if someone emails an article to a friend, or copies the article onto their own website in “mirror” fashion, with full attribution, just because they’re concerned that my site might go down and the article might be lost. Even something as benign and useful as the Wayback Machine, which archives the entire Internet, regularly violates the copyright of millions of authors without their knowledge.
To face some of the challenges presented by the information age, some folks got together about six years ago to create a “Creative Commons License” (or CCL) system that would allow writers, musicians, graphic artists, photographers, software developers, and other creative people to distribute rights from their copyrights to individual users through a free licensing system. On the surface, it seems like a really good thing for anyone to use, but it does have its own set of problems. The question I’m going to address today is whether or not a publisher should consider using a CCL for his or her printed work. The answer might surprise you.
Now first of all, let’s be clear on what a CCL is: it’s an addition to an author’s copyright, not a replacement. The purpose of a CCL is to give authors the ability to dictate how their work can be used by others. There are four dimensions of a CCL that can be used in six different combinations. I’d list them myself, but this slide, from the Creative Commons License website, explains it quite succinctly:
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| This is a slide from “Sharing Creative Works,” a comic that explains the purpose and details of the Creative Commons License. And I’m posting it here under the CCL, for what it’s worth! It’s available at the following URL: http://wiki.creativecommons.org/Sharing_Creative_Works |
Each of these attributes represent a certain set of guidelines. Attribution means that those who re-use the work have to cite the name of the work’s creator. Noncommercial means that the work can’t be used for money-making purposes (something we’ll discuss more in a moment). ShareAlike means that when derivative works are created, they fall under the same license as the original work. And No Derivatives means that users are not permitted to create derivative works from the original.
In all of these combinations, a work can be copied and re-used on a personal basis. That’s great if you want people to be able to legally copy and distribute your work to friends, but not so great if you want them to pay for every copy made.
For the purposes of publishing, I would say that it would be a rare occasion not to use the “Attribution Noncommercial No Derivatives” model, if a CCL should be used at all. This license would allow users to copy and share the work, which could potentially be of great use to the publisher if it could inspire those reading the copies to make a purchase down the road. From a marketing point of view, using such a license could be a smart move, since it sounds progressive and makes the content freely available to people once the book’s money is made and it’s out of print. The license can always be revoked down the road if needed, and it doesn’t affect reprint rights in the slightest.
If you are publishing nonfiction and you want to get your ideas out to be discussed and applied, I see very little reason not to apply this form of a CCL to your work. Remember, your work can only be copied and shared for personal use (something that’s not likely to happen regularly with a full-length book), and the goodwill you’ll create will likely boost your initial sales. Using the same license for an eBook is less advisable, since it’s more easily copied, but if you are less concerned about money than you are about discourse, you’ll certainly reach a wider audience with an eBook that can be copied and shared with friends… and if your content is good enough, people will pay for it.
If you are publishing fiction, there are fewer incenctives to publish under a CCL. It can be done, and has been done by Cory Doctorow, among others. But I see it more as a publicity tool than anything; something that suits the mindset of a subset of Internet users and inspires them to support the work. But on a grander scale, it can mean seeing even lower returns than the already small amount an author will see on a self-published novel, since people will feel more free to make copies of the work and give it to their friends.
But there’s a dark side to the CCL, and it’s something that bears mentioning. You see, the whole point of using a CCL is to respect the end users of your product and to grant them legal permissions to use your work in what you deem a normal manner. After all, we all know that viral marketing works best with products that can be distributed freely, and we like to believe that consumers will want to pay a fair price for our work, even if it’s after they’ve downloaded it from a friend for free.
While that ideology is nice on the surface, it misunderstands how consumers view products. Price plays an important role in the perception of a product; if a product can be distributed for free, consumers will often assume it’s because that product is inferior and isn’t worth anything. If that product can only be distributed for free under illegal means, consumers are more likely to look into purchasing it first, unless they’re amoral enough that they insist on pirating it no matter how reasonable the product’s cost may be. But the group that will download for free if it’s permitted to do so is exponentially larger than the group that will download for free if it’s not permitted. So why not just make a 99 cent eBook available to those who are willing to pay, and encourage them to recruit their friends to make the purchase as well? That seems just as reasonable to me, and it can be done under the current copyright laws quite easily.
Another aspect of the dark side comes from the meaning of the word “noncommercial use.” Under a CCL, it is technically all right for a user to purchase my product and then post it online for others to use. That user can’t sell the book, but might post it on a webpage where he or she is benefiting from ad revenues or referral links. In my mind, this violates the license. But in his or her mind, the monies being raised might be transferred to an account used strictly to pay hosting fees. It’s a tough problem to work around, and though I can revoke the CCL at any time, I’m going to have a hard time enforcing that without getting attorneys involved.
Conversely, a major media company could see my CCL and, not fully understanding what it means, assume that my work is free to reprint for their own uses. This has happened many, many times with photographs and music, particularly in advertising. In some cases, the work was correctly licensed for this usage, but in one well-known case, a photo of a 16-year old girl was posted by a youth group counselor online using a basic CCL license. Virgin Mobile’s ad firm used the picture in an ad that included some inneundoes that offended the girl, and the whole thing wound up becoming a huge legal mess. From Virgin’s standpoint, they’d done nothing wrong; the picture was licensed for attribution only. But the 16-year-old had a case as well; the picture had been used without her consent, and she’d never signed the standard release that a model might have been asked to sign. Had the picture been fully copywritten, it’s likely such a mess never would have occurred.
What the whole dilemma of a Creative Commons License boils down to is this: do you, as a publisher, want to give away some of the rights you have under standard copyright protection so that others can legally share or modify your work? If so, CCL is a nice option to define your terms to users. If not, you should probably stick with a standard copyright; it’s not a perfect system, but it usually does the job. You can always specify permissions within your copyright for free noncommercial use, and they’re much less likely to be abused.
As a side note, one thing that many small publishers might not realize is that US copyrights that are not registered with the US Copyright Office are extremely hard to defend in court. Any published work, whether it’s set up for CCL or not, should be registered here. Registered copyrights are much easier to defend in court; they’re currently $35 per book. Keep in mind that techniques such as the “poor man’s copyright” — where you mail yourself a manuscript in a sealed envelope, thus procuring a time and date stamp from a government source — do not hold up in court, and they’re no substitute for registering with the US Copyright office.
If you’re still interested in this topic, I’d recommend an article that I found very useful on CCL, by photographer and writer Dan Heller. This article goes into detail about how photographers can game the system and rip people off. It’s an intriguing read, to say the least!
-SJJ
Resource of the Day, Self-Publishing | SeanJJordan | 
July 16, 2008 9:21 pm
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