Category Archives: Creative Commons Evangelism

Creative Commons launches a study of NC licenses

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Good news coming out of the Creative Commons offices today.

From the press release:

The nonprofit organization Creative Commons has launched a research study that will explore differences between commercial and noncommercial uses of content, as those uses are understood among various communities and in connection with a wide variety of content. Generous support for the study has been provided by the Andrew W. Mellon Foundation.

“The study has direct relevance to Creative Commons’ mission of providing free, flexible copyright licenses that are easy to understand and simple to use,” said Creative Commons CEO Joi Ito. “The
NC term is a popular option for creators choosing a Creative Commons license, and that tells us the term meets a need. However, as exponentially increasing numbers of works are made available under CC licenses, we want to provide additional information for creators about the contexts in which the NC term may further or impede their intentions with respect to the works they choose to share, and we want to make sure that users clearly understand those intentions. We expect the study findings will help us do a better job of explaining the licenses and to improve them, where possible. We also hope the findings, which will be made publicly available, will contribute to better understanding of some of the complexities of digital distribution of content.”

Research is expected to be completed early in 2009. The study will investigate understanding of noncommercial use and the Creative Commons NC license term through a random sample survey of online content creators in the U.S., a poll of the global Creative Commons community, and qualitative data gathered from interviews with thought leaders and focus groups with participants from around the world who create and use a wide variety of content and media.

This is an important project for CC. As I learned firsthand when I tried to create a HOWTO for using NonCommercial-licensed works, the definition of NC is really confusing for a lot of people. There are a lot of fine distinctions to be made, and creators’ understanding of what rights they’re granting can be very different from users’ interpretations of what they’ve been given. It’s impossible to pin down exactly what the license means without reading the Legal Code, but the whole point of Creative Commons is to make it so that regular humans don’t have to bother with that stuff.

It’s a problem for all the CC licenses. I think the Share Alike requirement is actually more confusing than NonCommercial, but there are plenty of people on the cc-community list who disagree with me. There’s no question that a rigorous study of the NonCommercial license, including why creators choose it, what they hope to accomplish, and what does and doesn’t work for them, would be incredibly useful. It may even lead to a whole different approach to the Human Readable language.

Creative Commons began as an experiment, and now that it has grown into a vast international movement I think it’s worth re-evaluating some of the organization’s initial strategies. Offering the simplest possible language to describe a copyright license is an appealing and democratic ideal, but I’m not sure if it’s working. In fact, I wouldn’t be surprised if this study found that the human readable Commons deeds, which are currently just a few lines of text, need to be more like a paragraph or three if they are to capture all the nuances of the legal code. Some very important details – like the fact that a video that uses an SA-licensed song is considered a derivative work under the license even thought it’s not a derivative work in the generally accepted definition of a derivative work – get lost when the explanations are kept to 25 words or less.

Congratulations to Creative Commons, and good on Mellon for funding the project. I’ll be following its progress with great interest.

CC HOWTO #3: How to use a work with a Share Alike license

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Creative Commons offers two licenses with the Share Alike requirement: Attribution-Share Alike (BY-SA), and Attribution-NonCommercial-Share Alike (BY-NC-SA).

The purpose of a Share Alike license is to ensure that all future adaptations and derivatives of a work carry the same permissions as the original. This way, no matter what new forms the work takes on, it will always be free, open and licensed for re-use.

Here’s the description of Share Alike in the human readable Commons Deed:

Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same, similar or a compatible license.

Here’s the pertinent language in the legal code:

You may Distribute or Publicly Perform an Adaptation only under the terms of: (i) this License; (ii) a later version of this License with the same License Elements as this License; (iii) a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., Attribution-ShareAlike 3.0 US)); (iv) a Creative Commons Compatible License.

In other words, if you make a derivative work based on the Share Alike-licensed work, you must release it under the same terms under which the original was released, either using the appropriate CC license or an approved compatible license. As of this writing, CC has not approved any licenses for compatibility, so for all intents and purposes, the Share Alike license requires you to license derivative works under a CC license. If you cannot apply the appropriate license to your derivative work, or do not wish to, then you usually shouldn’t adapt Share Alike-licensed works.

The important thing to remember about Share Alike licenses is that, with one exception [see below], the Share Alike provision only applies to derivative works, which the license calls “adaptations”. Verbatim or unaltered copies are not derivative works. They’re simply copies, and as long you comply with the other terms of the license you can make exact copies of an SA-licensed work without applying a license to the work in which it’s used.

What is a derivative work?

It’s a bit complicated.

According to Title 17 Section 101 of the Copyright Act:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

The key words here are “recast, transformed, or adapted.” A derivative work involves enough creativity and originality that it constitutes a new copyrightable work. Simply converting a work from one medium to another — from print to digital, or CD to MP3 — does not produce a derivative work.

One Big Exception

There is an exception to the “Share Alike only applies to derivative works” rule: Songs used in video. Share Alike licenses use the word “adaptation” instead of the legal term “derivative work,” and include this language in the definition of “Adaptation”:

For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered an Adaptation for the purpose of this License.

Using an unaltered song in the soundtrack to a video does not make the video a derivative work, because the song itself has not been recast, transformed, or adapted in any way. However, the language above extends the definition of adaptation to include “synchronization of [music] with a moving image,” which means that as far as Share Alike licenses are concerned, videos that use an SA-licensed song are adaptations and must be released under the same SA license as the song.

The summary: In general, the Share Alike requirement of SA licenses only applies to derivative works, except when that work involves combining SA-licensed music with film or video, in which case, the film or video must carry the appropriate SA license.

Examples

Examples of adaptations as defined by the SA license

  • Translating a short story from one language to another
  • Photoshopping a picture to add to or alter its original elements
  • Using a sample from one song to make new song

Examples of things that are not adaptations as defined by the SA license

  • Including a short story in a collection of short stories
  • Reproducing an unedited image on a website
  • Using an unedited video in the background of a live concert

Two things to keep in mind

  1. Creative Commons licenses do not affect your fair use rights. If you have a use in mind that is also probably a fair use, the application of a Share Alike license does not require you to release the resulting work under an SA license.
  2. If you would like to use a CC-licensed work in a way that is not permitted by the license, you can ask for permission. Copyright holders are free to offer as many different non-exclusive licenses as they wish. Share Alike licenses don’t rule out the possibility of making an adaptation that doesn’t carry a Share Alike license, you just have to ask for permission to do so.

Previous CC-HOWTO’s:
How to attribute a Creative Commons licensed work
How to use a work with a NonCommercial license

CC HOWTO #2: How to use a work with a NonCommercial license

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In addition to Attribution, some Creative Commons licenses limit the permissions they grant to non-commercial uses only.

The Human Readable summary of the NC license says,

Noncommercial. You may not use this work for commercial purposes.

The relevant language in the Legal Deed says,

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.

This means that as long as you’re not making or trying to make money from your use of the licensed work, you’re okay. Common categories of non-commercial uses include educational uses, personal uses, fan uses, and just-for-fun posted-to-YouTube uses. Meanwhile, any use of a work for which the goal is to make money is not permitted under the NC license, even if the context itself is not commercial.

What seems to trip people up about the NonCommercial licenses is the difference between “non-commercial” and “not-for-profit.” It’s possible to operate in a non-profit setting and make a commercial use of a work, and it’s also possible to work in a for-profit setting and make a non-commercial use.

A pair of examples

A commercial use in a non-profit setting
Members of the not-for-profit Historical Widget Society would like to sell calendars as a fundraiser for their widget preservation efforts. They find a group of historical widget enthusiasts on Flickr, and notice that many of the photographs were released under Creative Commons licenses. Can the Widget Society use photos released under NonCommercial licenses in its fundraising calendars? No, because the calendars are “primarily intended for or directed toward commercial advantage or private monetary compensation.” Even though the “private monetary compensation” will be collected by a not-for-profit, the purpose of selling the calendars is to make money, which makes the use commercial.

A noncommercial use in a for-profit setting
The CEO of a profitable widget manufacturing company is retiring. For her retirement party, some of the staff get together one weekend to make a humorous video chronicling A Day in the Life of the CEO. The video will only be shown at the retirement celebration, and the CEO will get a copy on DVD as a gift. The staffers decide they’d like to set the video to music, and find a nice little BY-NC-licensed song on ccMixter. Can they use it? Yes, because the video for the CEO is not “primarily intended for or directed toward commercial advantage or private monetary compensation”. No one is selling the video, using it to sell something, or being paid to create it, so it’s a non-commercial use.

Threee pairs of mini examples

  1. Using an illustration on a birthday party invitation = Non-commercial
    Using an illustration on a charity auction invitation = Commercial
  2. Using a song as the soundtrack to a collection of home videos for the family reunion = Non-commercial
    Using a song as the soundtrack to an advertisement for a Family Reunion Travel deal = Commercial
  3. Using a photo on a personal website that has no ads = Non-commercial
    Using a photo on an ad-supported website = Commercial

Every situation is different, and these examples are intentionally simplistic. Before using an NC-licensed work, always take a moment to consider whether your use has anything to do with making money or selling something.

Two things to keep in mind

  1. Creative Commons licenses do not affect your fair use rights. If you have a commercial use in mind that is also probably a fair use, the application of an NC license will not stop you from making that fair use.
  2. If you would like to use a CC-licensed work in a way that is not permitted by the license, you can ask for permission. Copyright holders are free to offer as many different non-exclusive licenses as they like. NonCommercial licenses don’t rule out the possibility of commercial use, they just mean the copyright holder wants you to ask first, and possibly pay for the privilege.

[This project was inspired by some conversations on the cc-community listserv lamenting the lack of understanding among many users of Creative Commons-licensed work. I'm taking the material I use in my workshops, mixing it up with CC's extensive documentation, and posting the results here. If you have ideas for topics you'd like me to cover, let me know. If you think I got something wrong, please let me know so I can fix it. I am not a lawyer, and these posts should not be construed as legal advice.]

CC HowTo #1: How to Attribute a Creative Commons licensed work

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All Creative Commons licenses require future users to attribute the works they use:

You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work)

The Creative Commons FAQ has this to say about attributing CC-licensed works:

If you are using a work licensed under one of our core licenses, then the proper way of accrediting your use of a work when you’re making a verbatim use is: (1) to keep intact any copyright notices for the Work; (2) credit the author, licensor and/or other parties (such as a wiki or journal) in the manner they specify; (3) the title of the Work; and (4) the URL for the work if applicable.

You also need to provide the URL for the Creative Commons license selected with each copy of the work that you make available.

If you are making a derivative use of a work licensed under one of our core licenses, in addition to the above, you need to identify that your work is a derivative work, ie. “This is a Finnish translation of the [original work] by [author]” or “Screenplay based on [original work] by [author].”

These instructions are clear in theory, but many people who apply CC licenses to their work do not specify how they would like to be attributed. On sites like Flickr or ccMixter, you might not be able to determine the creator’s real name, and sometimes the work doesn’t have a title. If part of the goal of Creative Commons is to reduce transaction costs, then there must be some way to use those works without having to contact the creator to ask about proper attribution.

In practice, here’s how you can handle the attribution requirements listed above:

  1. “Keep intact any copyright notices for the Work”: If a work you’re using has a notice that says “© 2008 Molly Kleinman”, reproduce that notice when you credit the work. If such a notice does not appear, don’t worry about it.
  2. “Credit the author, licensor and/or other parties (such as a wiki or journal) in the manner they specify”: If a creator has a note attached to her work that says, “Please attribute Molly Kleinman as the creator of this work,” then attribute Molly Kleinman. If there is no note, but there is a copyright notice (see above), attribute the copyright holder named in the copyright notice. If there is no note or copyright notice but there is a username, check the creator’s profile to see if it specifies how to attribute the creator’s work. If it doesn’t, attribute the username. If there is no creator or author name of any kind, but there is a website (like Wikipedia Wikinews), attribute the website by name.
  3. “The title of the Work”: If the work has a title, call it by name. If it doesn’t, you can just say “This work by Molly Kleinman…” or just “Untitled, by Molly Kleinman…” Whatever seems appropriate.
  4. “The URL for the work if applicable”: Link back to the original source of the work. I would argue that this is the most important part of the attribution notice. It can help creators keep track of places where their work appears by seeing what links are driving traffic to their websites. It also gives users of your work an easy way to track down the original source. If you are reproducing a CC-licensed work in a print format, you might prefer not to include a long and ugly URL, and there might be situations where leaving out a URL is appropriate. But in general, the link is the most valuable part of the attribution.
  5. “The URL for the Creative Commons license”: Link to the license. The original work should have a link to the license under which it was released; link to the same place. You do not need to include the full text of the license when you reproduce a CC-licensed work.

There is no standard way to format the attribution of a CC-licensed work, and you can adapt the style or phrasing to suit your needs or the standard citation style of your discipline.

Here are a few examples:

An Ideal Attribution
This video features the song “Play Your Part (Pt.1)” by Girl Talk, available under a Creative Commons Attribution-Noncommercial license. © 2008, Greg Gillis.

A Realistic Attribution
Photo by mollyali, available under a Creative Commons Attribution-Noncommercial license.

A Derivative Work Attribution
This is a video adaptation of the novel Down and Out in the Magic Kingdom by Cory Doctorow, available under a Creative Commons Attribution-Noncommercial-Share Alike license. Copyright © 2003 Cory Doctorow.

One last thing: The licenses do not require you to inform a creator that you are using her CC-licensed work, but it’s a nice thing to do. Most people are very happy to learn that someone is using and building upon their creations; that’s why they use Creative Commons licenses in the first place.

[This is a new project of mine inspired by some conversations on the cc-community listserv lamenting the lack of understanding among many users of Creative Commons-licensed work. The Creative Commons website has so much information on it that it can be hard to find a basic, bite-sized howto. I'm taking the material I use in my workshops, mixing it up with CC's extensive documentation, and posting the results here. If anyone has ideas for topics they'd like me to cover, let me know. If you think I got something wrong, please let me know so I can fix it. And since the whole blog is CC-licensed, go ahead and use/adapt these however you like.]

Updated on August 22nd, 2008, at 9:23 pm

Taking the Attribution-only plunge

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It was only a matter of time before I switched the Creative Commons license on this blog from Attribution-Noncommercial to simple Attribution. And now that time has come.

I mulled over most of the reasons for doing so several months ago, but the final push came when my colleague Ivan Chew changed the license on his blog partly as a result of our conversations about Creative Commons. I realized I’d reached a point where I was convincing other people to give everything away, but I wasn’t practicing what I preached.

So here it goes. I’m still sticking with Attribution-Noncommercial for my photographs, but for what I’m trying to do with this blog, maximising potential uses seems like the right thing to do.