John Dvorak is regarded by many as something of a troll. At least that is his what his detractors say. He recently wrote a piece critical of the Creative Commons licence arguing, in essence, that it did nothing useful. In essence his beef was;
- it is a secondary copyright licence,
- it is just trendy posturing by the technorati,
- it would undermine fair use by pretending the CC licence can prevent it,
- it discriminates against commercial use while allowing unfettered non-commercial use,
- One could always ask for a licence to use work anyway - no need for a CC licence,
- The Creative Commons acts as a middleman saying what can and can’t be in the public domain and on what terms,
- Creative Commons adds unnecessary complexity to copyright licensing.
I must declare to being partial: I advised the Creative Commons UK licence drafting team, albeit in a very very small way. Nonetheless if you tell me that my step child is ugly I intend to punch you in the mouth regardless of your objective truthfulness, your honest intent or your cretinous misperception. You have the right to free speech. But I have the right to peremptory violence.
First of all it has to be said that words falling from the mouth of a fool are not always foolish. I have for example heard it said that the CC licence does nothing not already possible under copyright law. Dave “the Dave Green” Green of NTK fame, no less, has said such a thing to me. He whispered this question to me in the hushed fearful tones of a child asking why so many Roman Catholic priests liked to fuck little boys. It is indeed a good question, elements of which have been repeated by Dvorak in the typically less perceptive manner of a blowhard journalist whoring for blog trackbacks.
First and foremost Dvorak talks of fair use in a commercial context. He believes the CC licence pretends to remove this and were the Creative Commons people to win a legal case then ‘fair use’ would be undermined.
As a non US citizen I would say first that ‘fair use’ is a US concept that is not used elsewhere or at least to the same degree, and that’s a bad thing BTW - you won’t often get me saying anything positive about America but this is an exception. The UK and Australia for example have a far more limited concept of public fair use/fair dealing of copyright works. But while Dvorak may not realise it the US is not all the World. In many jurisdictions the existence of a licence importing the US style ‘fair use’ provisions would be a useful and radically different step. Even in the US however there is no honest suggestion that CC undermines fair use and it is difficult to get a handle on exactly why Dvorak feels that this is impliedly so. I’m genuinely not sure and I’d appreciate insights as to why he does. If it is his case that the mere existence of CC licences confuses people then I think it is perhaps possible but somewhat unlikely. Anyone familiar with the concept of ‘fair use’ is likely to appreciate that a CC licence like any other copyright licence is subject to an overarching statutory right of fair use anyway. Anyone unfamiliar with ‘fair use’ would, in the ordinary event, either ignore copyright or not use the work. In the former case CC adds nothing but in the latter case they would realise a permission existed and be tempted to use the work where they wouldn’t otherwise.
If there is a criticism of the CC licence structure it is this: there are a number of licences and it is not easy know which one to select and what the implications are of each licence. The Creative Commons team does go to great lengths to explain this and it does so rather well. In my view the number of options is not over complex or incomprehensible but then you’d expect me to say that and I expect others to disagree. If you contrast this with software copyright licences like the GPL or the BSD licence then the comparison is not favourable on any complexity metric. Nonetheless CC attempt to achieve more that the GPL/BSD and software copyright is a specific instance of general copyright. While the GPL/BSD licences benefit from a reduced user domain, general copyright licences have a larger audience with more diverse needs. While there is a philosophical war between CC and the Free Software movement that debate is for another time.
No. Dvorak is wrong when he says that CC adds a layer of complexity that confounds useful choice. What it adds is a layer of initial education and decision making. Previously one might have said “I retain all copyrights” or “this is public domain”. The sophisticated licensor they might even have said “you can use it if you give me credit” or “you can use it if you give me credit but give me a money if it is for commercial use”. In all these cases you either had simple choices that could bite you: for example if you said to someone that it was fine to use the work but you later discovered that they were then making money you had little recourse based on the licence you gave. On the other hand if you retained all rights to the work it would not be used which might in turn affect you because your public profile was low.
This then is the utility of the CC licences: by becoming aware of the right you have you can become a more sophisticate user of licences to achieve greater control of the use of your works than the simplistic all or nothing Dvorak approach. CC licences enable commercial and publicity use of copyright works in a way Dvorak doesn’t comprehend. Firstly by reading the simple explanations that go with the licence you become aware of options you might not have understood before.
Secondly and the most important point of all: you no longer need to employ me, or any other IP lawyer, to control how your works are used in 90% of situations. This is a point the Creative Commons people seem not to have pushed or realised:
the CC licences have become standard form contracts.
It is hard to overstate how important that is to a non lawyer. The fear of lawyers and the fear of their costs is a critical reason many creatives don’t use them and why they just “wing it” in dealings, occasionally to very bad results. In my old domain of shipping law we dealt with contracts of huge value: hundreds of millions of pounds. Many of these were dealt with under industry standard contracts precisely because ships needed to sail on time or be salvaged quickly and no-one could be bothered to wait while lawyers argued for 3 months over the terms. Standard form contracts eliminated much of the haggling and uncertainty.
Like the GPL many people will come to know, in time, that that one of these CC licences “is a good choice” without understanding the exact reasons save that it is in their, and everyone else’s, interests. Previously they would not have released the work or done so on an inappropriate licence.
Everyone wins: even Mr Dvorak.
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