Introduction
The "Creative Commons licenses", a set of standardized general contract terms and conditions, have conquered the world in a short time. We could even say, that "A spectre is haunting the World – the spectre of Commonism". Why could it spread so quickly? What did it offer in comparison with the other similar model licences?

Suggestions – demystified
It mainly offers suggestions, in my opinion. The CC organization is really cautious, so the main characteristic of their communications strategy is not written down. The official explanations can be found at the CC website (cf. sources) – but the real image of CC is built up by untold suggestions. I would like to present you some of these implied suggestions – demystified.

You could say that it is easy for me to accuse CC on the basis of suggestions. I would rather say: it is very hard to debate with intimations, with a "whispering campaign"; the real intention of CC remains unclear.

1.) "Classical Copyright" vs. "Creative Commons"
CC licences suggest, that the main feature of classical copyright is "All rights reserved", whilst the approach of CC licenses is "Some rights reserved".
This juxtaposition is simply false. Copyright provides a list of exclusive rights to the rightholder, from which he decides which ones he wishes to "sell" or grant and which to retain. The "Some rights reserved" concept is therefore not an alternative to, but rather the very nature of classical copyright.
Although in the deeper pages of their website CC acknowledges that their licensing system is based on copyright itself, you just need to write the following words: "Creative Commons" and "alternative" into Google to find out how many people do not recognize this legally evident acknowledgment, and how many people are rather impressed by their suggestion.

2.) "Select a jurisdiction"
The CC likes to stress that their licenses are adapted to many jurisdictions. Let us look at a short quotation from The Register (2004): "Such legal adaptation work is going on now in around 60 countries". Sometimes misunderstandings arise in this context. Let there be no mistake: the CC licenses may be adapted to many jurisdictions, but they are not adopted in any jurisdictions.

The CC licenses are freely available model contract forms, tailored to the requirements of several jurisdictions. The state is not in a position to adapt or enforce the use of these uniform licences.

3.) "Copyright prevents the free flow of information"
"CC licences are about removing the barriers to sharing information" (Guy and Kelly 2005). This sentence and the whole notion of CC is based on the misbelief that copyright prevents the free flow of information.

This again is a false interpretation of copyright, which will never protect mere facts or information. According to the Berne Convention, Art. 2 (8): "The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information". The 1967 international diplomatic conference in Stockholm gave an authentic interpretation of this rule. As we can read in the report of Main Committee I: "The Convention does not protect (...) miscellaneous facts, because such material does not possess the attributes needed to constitute a work" (see e.g. Ricketson 2003).

It means that anyone can base his work on the conclusions and facts and all available data of scientific works by other authors. It is only the norms of professional ethics that prescribes that credit should be given to the original researcher. To bring another example: new and exciting musical chords or performing styles can freely be used by other musicians – not because the original artists are generous, just because the scope of copyright does not extend to these elements.

4.) "On the internet you do not need a publisher to reach the public"
Technically this is true. But let us not forget that in the last decades it has always been true regarding the offline world as well. The musicians have had the possibility to prepare their own sound recordings and sell them and to organize their own concerts. The authors have been able to publish their own works. The technical and legal possibility however does not mean that financially these "self-uses" are profitable.

It is not the "scantiness of goods" in the offline world that justifies the existence of publishers (professional actors in the selling of content to consumers), rather the "plenitude of supply" on the market of contents. If you are not well-known in the public, who will listen to your music or buy your book from a list consisting of 5,000,000 elements in alphabetic order?

5.) "There is no need for this wide copyright protection"
Another implied suggestion of the CC-ideology is that if many authors decide to narrow the exercise of their copyrights, it can be a reason to reduce the strictness of statutory copyright protection. This theoretical conclusion would be totally mistaken.

Even CC-authors need to eat. They need money for existence and creation. When they decide not to exercise some of their copyrights, they do not give up their living for the noble idea of free flow of information – they have some other intent to do so (for example they "advertise" themselves to earn money from personal presentations, or they already have another constant source of income). Therefore their decision should not affect the possibilities of those authors, who need to secure their living from their works.

Hidden facts – unveiled
The other reason for the quick spread of CC licences is that some of their characteristics are concealed, hidden from the public and hidden from the right holders using them. Now I would like to present you two of these circumstances – unveiled.

1.) Commons Deed vs. Legal Code
One of the sources of misunderstanding regarding the nature of CC licenses between the right holders is that there are three forms of a license:

  • one that can only be read by a computer (Digital Code)
  • one that can "only be read" by a lawyer (Legal Code)
  • one that the other part of the world can read (Commons Deed).

The basic version is of course the Legal Code, and this version is "translated" into the other two forms. The problem is that the authors wishing to use the CC license will generally read only the "Commons Deed" version. They will not have the money or possibility to take advice from a lawyer specialized in copyright, and therefore most of them will necessarily lack important information regarding the licence.

The CC webpage suggests, that Commons Deed is nothing else than "a human-readable summary of the Legal Code (the full license)". Unfortunately this is not true; there is lots of information missing in the Commons Deed form. Every such difference implies the danger of misleading the author.

You can read the Commons Deed form, the "Frequently Asked Questions" or "Licenses explained" pages of the CC website (cf sources), you will not find some of the most important elements of CC licences. You can only find this information on the bottom of a deep page:

"Every license
– applies worldwide
– lasts for the duration of the work's copyright
– is not revocable"

Has any of you ever noticed it? Is every author using this licence aware of these conditions?

The CC licences last for the whole term of copyright, and binding to the heirs of the authors as well. They are effective worldwide, and you can never change your mind, which is anyway clearly forbidden by a number of copyright acts. It means that a CC license is even more extortionary than an exclusive "buy-out" contract from a global media company, where the author at least gets some money, and according to the legal regulations can revoke the license in some circumstances. To bring another example, a collecting society is obliged to give the possibility to its authors to "take back" their rights if they are not content with the working of the society, and they also have the right to limit the territorial scope of the management of their rights.
In the CC licences the author does not have the right to test, to try out this solution. If he decides – inspired by the insufficient information of the over-simplified descriptions – to use the CC licences, he and his heirs will never be able to change their mind, even if they found out that their decision did not meet their expectations.

Therefore I think that we have to handle with care the statements of CC that their licences do not mean the giving away of copyright. At least it empties the essence of copyright.

2.) Unenforceable rights
An edifying excerpt from the Frequently Asked Questions of the CC webpage:

"Will Creative Commons help me enforce my license?

No, we will only provide the license, plus a plain-language summary and machine-readable translation of it. We're not a law firm. We're much like a legal self-help press that offers form documentation – at no cost – for you to use however you see fit. We cannot afford to provide any ancillary services particular to your situation and, in any case, our mission does not include providing such services".

Let me translate it this way: CC provides you legal tools to retain some of your copyrights. But when it comes to the enforcement of these rights, they simply shrug their shoulders. But is it really about not having enough sources to "include providing such services"? Is it not about the fact, that the rights that an author retains when using CC licences are not enforceable in practice?

Let us try to summarize the enforcement problems stemming from the use of CC licences:

a.) "Non commercial. You let others copy, distribute, display, and perform your work – and derivative works based upon it – but for non commercial purposes only".

  • although the CC website talks about the possibility that a work under the "non commercial licence option" can still earn money from those who are using it for financial gain, in practice this possibility is minimal, almost non-existent. Why should anyone invest in works that are already widely available for free?
  • on the other hand: how could an individual author control the uses of his works? In many cases the users are able to hide their financial income, even professional enforcement bodies are facing difficulties in finding them. In case someone uses these works for profit, the authors will not be able to find the users or to achieve a fair royalty rate (because they will not be able to monitor the uses and the incomes of the user). And they will also not be able to trust someone to enforce their rights on a business basis – because there is no business in monitoring usually-free uses.

Although it sounds good for several authors that only non-commercial uses can be carried out freely, in practice the author will not be able to distinguish between commercial and non-commercial uses. Therefore in many cases the "non commercial licence" practically means that the author puts his works into the public domain.

b.) Micromanagement. If we see the most developed part of collective management of copyright (the licensing of musical works), we can see that there is a hundred-year-old equilibrium between the free choice of authors on one hand, and the effective rights management on the other. Although the author has the theoretical right to licence every blond-haired singer to sing one of his songs every second Saturday afternoon for free, this right would not be enforceable.

Therefore the collecting societies created a solution in their field (that is – since the beginning of the 70’s – also accepted by the European Court of Justice), in which the decisions of the authors regarding the management of their rights e.g. (i) always refer to a certain period (1 year); (ii) always concern all their works; (iii) are always effective for all uses in a certain mode of use. Of course there may be differences between the societies in the flexibility regarding the choices of the authors, but one thing is common: they do not want unenforceable rights. And although this may seem for the outsiders as a limitation to the free choice of the author, in reality the value of a less-flexible right may be higher than the unenforceable "nimbleness". This statement should also be true for the CC licences.

c.) Collision of national contract laws. The contract laws (and in particular copyright contract laws) of national jurisdictions vary across a wide range. The CC licences have their roots in the US law (the "model" is the American one, and every national adaptation has to have the approval of the CC-centre), which differs significantly from continental law systems.

  • One of these problems is that a CC licence is not a contract in itself, it is a unilateral statement (contract proposal) by the author. In this case the irrevocability of a statement that licences anyone-anytime-anywhere to use the work free of charge, could mean a renunciation of rights, which is not possible in several jurisdictions.
  • In some jurisdictions the CC licence will not meet the requirements of formal validity of contracts.

The licenses with different scope lead to licensing chaos and indemnity confusions.

Bottom line
Creative Commons is a system that alleges that it is more flexible than the classical copyright licensing models. In reality however, where this system is flexible, it creates unenforceable rights. And when it comes to terms of validity or irrevocability of the licence – it turns out to be inflexible.

Sources

About the author: Dr. Péter Benjamin Tóth is a legal counsel at the Hungarian musical collecting society ARTISJUS. He is also a member of the Hungarian Copyright Expert Group. He can be contacted in e-mail ptoth@artisjus.com

Status: first posted 24/06/05; included in INDICARE Monitor Vol. 2, No. 4, 24 June 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=118