Much has been said, written and debated about the shortcomings of copyright law. The criticism often includes the obvious – that laws arising out of a fifteenth century technology (the printing press) cannot possibly remain relevant in the digital age. Experts have opined in books (How to Fix Copyright, by William Patry, Remix and others by Lawrence Lessig, to name just two), articles (“Copyright Strangulation,” by Mike Konrad on the American Thinker blog)1, blogs (The Becker-Posner Blog)2, and elsewhere about the antiquated nature of copyright laws, and the need for either a complete overhaul of the old model, or something entirely new. Although every year over a half-million applicants still seek copyright registrations for their works, indicating that many creators believe that registering their copyrights remains a valuable endeavor3, the vast majority of creators do not routinely register the copyright in their works.
In the past decade, alternatives to the traditional “all rights reserved” methodology of traditional copyright law have arisen. One of those alternatives, Creative Commons, was founded in 2001, as “a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.”4 The various Creative Commons licenses provide a tool for creators to give the public permission to share and use their creative work. Since the launch of its first license in 2002, thousands of creators have used Creative Commons licenses, “amassing a selection of over half a billion CC-licensed works, spanning the worlds of education, art, academia, data, science, and much more.”5
With this now-available alternative to the traditional “all rights reserved” approach of the federal copyright law, how does a writer, or other creator, know whether to register the copyright in his or her work, to apply for a Creative Commons license, or to do neither, or possibly both? According to intellectual property attorney and Creative Commons expert Samuel Bayard of Davis Wright Tremaine LLP in New York City, although Creative Commons is very well known within (in his words) “techy, nerdy, internet culture,” there is not widespread awareness about it elsewhere. This article aims to clarify the fundamental differences between copyright registration and Creative Commons licenses, and provide a guide as to when a Creative Commons license may be the right step.
Federal Copyright Registration
Under the federal copyright law, the creator of an original work owns the copyright in that work, immediately upon creation. Registration is not necessary for ownership. In fact, registration is just a legal formality intended to make a public record of the basic facts of a particular copyright.6 Although registration is not a condition of copyright protection, there are several inducements to encourage copyright owners to register their works. The most frequently mentioned inducement is that before a copyright owner can file a lawsuit against an infringer, registration of the work is necessary. The registration will provide evidence in an infringement case of the validity of the copyright, and will also allow the copyright owner to seek certain damages and attorney’s fees from the infringer.7
The registration procedure is quite straightforward. The forms are available online at www.copyright.gov. The fee is modest, starting at $35 for a single work. The U.S. Copyright Office’s website offers answers to a host of questions, ranging from “Can I copyright my website?” to “Can I register a diary I found in my grandmother’s attic?” to “How do I protect my sighting of Elvis?”8 (Reaching a representative at the Copyright Office with more specific, targeted questions is not as straightforward. A call to the Copyright Office in connection with this article led to being placed on hold for 31 minutes, transferred to a different office, and then disconnected.)
Once a copyright application is filed, registration is, in most situations, nearly automatic, although not immediate. According to the 2011 annual report of the Copyright Office, the most recent one available on its website, the average processing time for applications filed in 2011 was 94 days. 9
The law provides that copyright-protected material may be republished only by the copyright owner, unless the defense of “fair use” applies. Thus, under the federal law, in general, for a third party to adapt, derive, remix, or redistribute the material, permission from the copyright owner must be sought and obtained, a potentially onerous process.
Creative Commons License
Creative Commons seeks to eliminate the uncertainty and delay in the permission process, and to allow creators to make their work freely available under certain parameters. The Creative Commons licenses are based upon the premise that the digital world requires flexibility so that authors can protect their work while still sharing it with others online. The licenses provide a method for these authors to give permission to others to reuse, derive, adapt, and remix their work, while still retaining the underlying copyright.
A common misconception about Creative Commons is that it replaces copyright. That is simply not the case. A Creative Commons license requires that the underlying work be subject to copyright. However, copyright registration is not a requirement, and is the exception rather than the rule for most Creative Commons users. Diane Peters, the General Counsel of Creative Commons, stated that, as a general matter, few people register their copyrights, other than big media companies, and that “the incentives for registering are very low in the United States.” Yet, there is no impediment to registering the copyright in a work and at the same time seeking to disseminate it through a Creative Commons license.
The first Creative Commons license, version 1.0, was released in December 2002, and the various licenses have evolved since that time. The most recent iteration, Version 4.0 License Suite, was finalized and published on November 25, 2013. Today, there are six varieties of Creative Commons licenses, all providing, to varying degrees, a release by the owner of creative works of some of the exclusive rights in those works, while retaining other rights. The six licenses are10:
• Attribution: CC BY: This license lets others distribute, remix, tweak, and build upon the work, even commercially, as long as they credit the author for the original creation. This is the most accommodating license, recommended by Creative Commons for maximum dissemination and use of licensed materials.
• Attribution-ShareAlike: CC BY-SA: This license lets others remix, tweak, and build upon the work, even commercially, as long as they credit the author and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. This is the license used by Wikipedia.
• Attribution-NoDerivs: CC BY-ND: This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to the author.
• Attribution-NonCommercial: CC BY-NC: This license lets others remix, tweak, and build upon the work non-commercially, and although their new works must also acknowledge the author and be non-commercial, they don’t have to license their derivative works on the same terms.
• Attribution-NonCommercial-ShareAlike: CC BY-NC- SA: This license lets others remix, tweak, and build upon the work non-commercially, as long as they credit the author and license their new creations under the identical terms.
• Attribution-NonCommercial-NoDerivs: CC BY-NC- ND: This license is the most restrictive of the six main licenses, allowing others only to download the work and share it as long as they credit the author, but without changing it in any way or using it commercially. The Creative Commons website offers what is termed a “simple License Chooser” to assist in the process of choosing an appropriate license11.
The attribution requirement, according to attorney Bayard, is common to all of the licenses. The biggest differentiator among the licenses, he stated, is the commercial use component. Some of the licenses permit solely non-commercial use of the work, and others permit commercial use as well. The commercial use limitation, however, has been an area of uncertainty for some users because the term “commercial” does not have a stable meaning. In certain contexts, such as First Amendment use and the right of publicity, a commercial use is a use solely in connection with advertising. In other contexts, however, such as in the copyright arena, “commercial” has been held to encompass anything use for profit, Bayard explained. Peters, however, clarified what is meant by a noncommercial Creative Commons license.
She explained that noncommercial is defined in version 4.0 as follows:
“NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.”
Note that in the context of educational student media, almost all of which are run on a “not-for-profit” basis, the fact that ads are sold or that (as in the case of a yearbook) the publication itself may be sold to the school community does not automatically transform the user into a “commercial” user. As long as the publication is associated with an educational institution and is operated for educational purposes – as opposed to a community magazine that happens to be run by college students but is otherwise a for-profit business operation – the publication should qualify as “noncommercial.”
The “share alike” feature is another potentially formidable provision of some of the licenses. Under this feature, whoever uses the work must license their new work under the same terms as the original share alike license. For instance, Bayard explained, if you use a photograph with a share alike license and put it into a larger work, you are obligated to distribute your larger work under the same share alike license.
Benefits of Creative Commons Licenses
Broad Dissemination: The biggest benefit of acquiring a Creative Commons license, according to Creative Commons attorney Peters, is that “if you want to be read, if you want your work to travel far and wide, and if you want attribution,” a Creative Commons license is far better than “all rights reserved.” Without such a license, third parties may stop before redistributing a work because of the time, and potential expense, of obtaining permission.
Bayard added that Creative Commons licenses are “a new way of thinking about intellectual property.” They are used by people who desire to share and make their work useful for others, he continued. “The ethos is that it’s a nicer way to deal with the world when it comes to intellectual property,” he said.
Cost: A second benefit is that Creative Commons licenses are free. Although relatively low, there is a monetary cost to copyright registration (starting at the $35 filing fee for a single application, single author, one work).
In terms of time, rather than monetary cost, however, it is a tossup. In the case of Creative Commons, one must figure out which license works best. Although the “simple License Chooser” is provided online, “simple” may be a misnomer for first time users and others without copyright expertise. On the other hand, in the case of registering a copyright, time must be spent finding the appropriate online form, completing and filing the paperwork. Today, when “everything is so fast,” Bayard stated, filing a copyright registration simply may not “fit with the way that people create and publish.”
Pitfalls of Creative Commons Licenses
Who are My Re-users?: Despite the potential for free, broad dissemination, Creative Commons licenses do have limitations. First, as of today, there is no mechanism to see who is using your work under the licenses, or how extensively it is being used. As Peters put it, “we are not a registration system.” An author can, of course, do a Web search for his or her name, title, and Creative Commons license to find instances of people using the work. However, even Peters conceded that such a search “is not perfect,” and she indicated that Creative Commons is working now on a “tracking back” mechanism to solve this potential pitfall.
If, for instance, a work is taken and used in connection with a site that is, for whatever reason, undesirable to the creator, the creator would have no recourse against the user, provided that the user has complied with the terms of the Creative Commons license. Creative Commons licenses are irrevocable. To the extent that you want to retain a sense of control over your work, Creative Commons will not provide you with that control, Bayard emphasized.
What if there is a breach?: The second potential drawback to a Creative Commons license is that it’s not entirely clear how the courts will respond if the owner brings a claim against a user who breaches the license (by a commercial instead of a non-commercial use, or improper or no attribution given, for example). Because proof of ownership may be an essential part of establishing a breach of the agreement, the owner probably will need to show proof of copyright ownership, which means registering the copyright. That means enforcement of a Creative Commons agreement may not be much simpler than pursuing a traditional copyright infringement claim, which also requires proof that the copyright was registered at the time of the lawsuit.
This may not be a problem for those who wish to widely disseminate their works, either with or without a Creative Commons license, but it is a consideration for creators before they choose to bypasses the traditional copyright registration process. Litigation for Creative Commons license breaches, according to Peters, is a rare occurrence12, and in the handful of cases that have been brought, she stated, the licenses have been enforced. They “operate robustly in a court of law.”
“For the most part” though, Peters said, this is not a big concern to Creative Commons licensors. “People reusing Creative Commons licenses tend to do a good job [of abiding by the license terms].” Although the licenses are irrevocable13, they terminate automatically if violated. However, starting with the 4.0 licenses, the license reinstates if the violator corrects the breach within 30 day of discovering it, Peters stated.
And, yet, copyright registration does not provide a panacea for a breach either. Bayard explained that even if you do register your copyright and try to enforce it, you cannot necessarily control “the bad actors who are going to take your work and do what they want with it.” In other words, people infringe copyrights. The time and expense of going after those infringers is often prohibitive for many copyright owners, and so copyright holders may not have the resources, in terms of either time or expense, to exercise the rights available to them based upon their registrations.
The Creative Commons licenses depend on the existence of copyright, or, as the University of Minnesota, a Creative Commons user, explains on its website, “Creative Commons is not ‘anti-copyright’, or even an alternative to copyright – it’s just an option of a different way to share works, and it fundamentally relies on copyright – you must own a copyright in a work in order to make it available under a Creative Commons licenses.”14 Yet, creators who choose a Creative Commons license, or other similar, available pre-prepared licenses, over a more traditional “all rights reserved” approach with a federal copyright registration, should be aware of both the benefits and the pitfalls, and make informed decisions about the dissemination and protection of their original works.
Attorney Carolyn Schurr Levin, a lecturer at Stoney Brook University School of Journalism and LIU Post School of Visual and Performing Arts, is a former vice president and general counsel at Newsday and a veteran college newspaper adviser.
2. According to economist Gary Becker and federal judge Richard Posner on their University of Chicago Law School Blog, http://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html, “copyright protection seems on the whole too extensive. . . The most serious problem with copyright law is the length of copyright protection, which for most works is now from the creation of the work to 70 years after the author’s death. . . The copyright term should be shorter . . .The next most serious problem is the courts’ narrow interpretation of ‘fair use.’ The fair use defense to copyright infringement permits the copying of short excerpts from a copyrighted work without a license, since the transaction costs of negotiating a license for a short excerpt would tend to exceed the value of the license. The problem is that the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license. Intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity. . . The need for reform . . . is sufficiently acute to warrant serious attention from Congress and the courts.”
3. According to the statement of Acting Register of Copyrights, Maria A. Pallante, before the Subcommittee on Legislative Branch Committee on Appropriations, United States House of Representatives, 112th Congress, 1st Session, March 11, 2011, in fiscal year 2010, the U.S. Copyright Office received 522,796 new claims and processed 682,148 (counting claims carried over from prior years), out of which it registered 636,527 claims.