Public Licenses: The Gift That Keeps On Giving

Prof. Jane C. Ginsburg, Columbia University School of Law*
June 11, 2009

Rob Merges’s recent (May 26) contribution on “Intellectual Property and the Culture of Giving” inspires this follow-up. Rob evoked “the right (and wrong) way to give [rights] away.” I would like to consider further whether public licenses for works other than software, such as those proposed by Creative Commons (CC) that facilitate free distribution of works, are the right (or wrong) way for authors. The answer largely depends on whether the author seeks to make a living from her work. The features that may make these licenses highly attractive for creators with well-remunerated “day jobs” (such as law professors) may pose some problems for the professional author.

General observations about public “sharing” licenses

Although CC and similar open content licenses¹ seek to enhance the availability and to promote the sharing of works of authorship, the licensing mechanism is not inherently a repudiation of copyright. On the contrary, CC licenses provide for the reservation of a range of rights (“some rights reserved”). Thus, the license allows the author to retain copyright but also to permit the licensee – the public at large – freely (in both senses of the word) to make broadly described uses of the work, such as making and distributing copies or adaptations of the work.

Because the license travels with each digital iteration of the work, it enables “downstream” users to make the same uses as the first generation of users who obtained the work directly from the copyright owner. Without the license, the initial or subsequent distributions of the work could (at least in theory) infringe the author’s copyright.

Core features of CC licenses are:

1. The simplicity of their standardized terms (with a corresponding simplicity of selection of which rights to grant and which to retain with regard to an individual work): The default version of the CC license grants all exploitation rights forever, for free and for all means of explotation; the author may expressly reserve commercial uses and the making of derivative works.
2. Credit to the author (the default version of the CC license requires attribution): This is particularly important for the United States because the Copyright Act does not confer a general right to be recognized as the author of a work.
3. Instant authorization of the permitted uses forever, for free and for all means of exploitation to any member of the public accessing the licensed work.
4. Increased potential for broad distribution of the work, notably because of the ease of locating CC-licensed works through certain search engines.

All of this is very good for getting one’s work out to the public. Public licenses thus can be an effective means of generating publicity for the author. However, an author, before choosing between licensing any of her works under a traditional or a public license, should be aware of certain consequences:

• Payment?

CC licenses do not provide for direct remuneration for the uses made of a work under a CC license. It follows that CC licenses are appropriate where the author wants broad unpaid distribution of her work, or wants to offer the licensed work as a “loss leader” to promote sale of rights in other works licensed by other means.

Through a new service called CC+, however, CC now links to a variety of content-aggregation sites where authors who distribute their works under a “non-commercial” CC license may also place their works with and receive payment from the aggregator for the additional rights that it licenses. The number of participants in CC+ is currently rather small (though one may hope that it will grow), nor does it appear, at least for the moment, that the service enables payment directly to the author.

• For rights licensed, the horse is out of the barn.

Public licenses are non-exclusive; this means that the author can continue to exploit the rights herself, or directly authorize others to exploit them. But it also means that she can no longer grant exclusive rights to engage in the publicly licensed exploitations. For example, if she releases her work under a license generally permitting adaptations, she can no longer offer exclusive film, or sequel, or other “derivative work” rights.

The inability to offer an exclusive deal may make the work less desirable to commercial entities with which the author may now or later wish to contract. (By the same token, if the author has previously granted exclusive rights, then unless her contract provides otherwise, she can no longer offer the same rights in the same work under a non-exclusive CC license.)

• The author can’t change her mind; if she tries, she may make things worse.

It must be emphasized that once the author has granted a public license, there’s no going back. Once publicly licensed copies are made available, they will generate more licensed copies, and it will be too late to reverse course. While the author can cease to offer the work herself with the license, or can re-offer it with a more restrictive CC license (for example, to exclude derivative works where once she allowed them), she will not be able to stop the circulation of copies previously accompanied by prior terms of the license.

Downstream users whose copy of the work incorporated the prior version of the license may be entitled to rely on – and further propagate – that version. In that case, confusion will reign if different versions of CC licenses with regard to the same work are simultaneously circulating.

• If the rights retained are violated, the author still has to enforce them.

A public license is not self-enforcing. This may be an obvious point, but authors bedazzled by the “cool” communitarian ethos of “sharing” licenses need to realize that they’re on their own if some of their “sharees” don’t play by the rules – for example, if they commercially exploit a work licensed under “non-commercial” restrictions. So while public licenses make it easy to give rights away, and in theory to hold other rights back, for authors who can’t afford a lawsuit, the giving is likely to prove a lot easier than the keeping. (Granted, if third parties infringe a traditionally licensed copyright, the author will need to bring an infringement action too, but often the licensee takes on these enforcement costs.)

Other concerns: The Devil is in the lack of detail.

There is a reverse side to the coin of simplifying rights licensing or retention. If, to take the CC icons, six sizes fit all (see http://creativecommons.org/about/licenses/ ), then some authors may find they have given away more than, upon reflection, they may have intended. Let’s take two examples: the option to restrict the license to “non-commercial” uses, and the very broad character of the uses licensed.

First, the non-commercial limitation is, for many licensors, fundamental. They may be happy to share their work for free, but not to see others make money from it.  But just what does “non-commercial” mean? The CC “legal code” (version 3.0) says the following:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

Characterizing file-sharing as “non-commercial” may be inconsistent with judicial decisions. But in this context it doesn’t matter, assuming that the author, by making her work available with the license, in fact is happy for her work to be disseminated via file-sharing.

The remainder of the definition, however, is troublesomely ambiguous. If the use is not “primarily intended for or directed toward commercial advantage or private monetary compensation,” does that mean that “nonprofit” enterprises qualify as licensees, even though their exploitation of the work may produce revenues? For some kinds of works, particularly dramatic works and works of “serious” music, the primary venues for performing the works are likely to be nonprofit theaters. If “non-commercial” is synonymous with “nonprofit,” a licensing author might be unpleasantly surprised to learn that she granted for free her rights of most practical economic consequence.

Second, with respect to the breadth of the rights licensed, if, as is the case with CC, the license does not distinguish between reproduction rights and public performance or communication rights, then the author will be granting both. Given the tendency of these two rights to collapse into each other where digital media are concerned, failure to distinguish between the rights at first makes simplifying sense. But the distinction can matter, and its absence can lead to unwanted consequences, such as the rights owner’s inability to allow audio- or video-streaming without also permitting downloading.

Moreover, the author may come to regret the free, perpetual grant of rights in future modes of exploiting the work, particularly if she adopts the default license and does not reserve commercial uses and derivative works. If new technologies create new markets for the work (as they surely will), the CC-licensing author will have in advance surrendered her exclusive rights to determine how (or indeed, if) her work should be exploited in those markets.

Caveat Auctor

I do not mean to suggest that CC licenses are necessarily the “wrong” way to give away one’s rights. Nor do I wish to imply that giving away rights is “wrong.” CC licenses have many advantages; indeed when it comes to authorship credit, CC licenses even fill a significant gap in the rights provided under the U.S. Copyright Act. My purpose, rather, is to clarify what a CC license does and does not do (everything said here is consistent with CC’s own FAQ, see http://wiki.creativecommons.org/FAQ), so that the informed author can carefully consider whether, in each case, she wishes to give rights away, and if so, to what extent.

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