Creative Commons Licenses are Unnecessary and Dangerous
[by Leslie Burns]
I hear lots of people say how CC makes “sharing” possible and promotes the “democratization” of creative culture. Really, it is the emperor’s new clothes of IP licensing–false, dangerous, and unneeded.
For centuries (there is specific references to licensing in docs dating as far back as 1474!), traditional licensing has permitted creators and users to work together to develop new innovations, new art, new technologies. As the text book we used in my Licensing class in law school puts it (Licensing Intellectual Property: Law and Application pp. 3-4, emphasis added):
[...] it enables creators of information, technology, and intellectual property to do the sharing and collaboration that lead to the creation of new information products, from the production of an epic motion picture to the development of complex software. In other words, licensing underlies technological and creative innovation. [...] licensing enables parties of all sizes and from all sectors to bring information products to market in a multitude of ways. In other words, licensing also underlies business model innovation.”
Think about all the innovations of the 20th century alone, these were all done under the traditional system of licensing. No creativity or innovation was suppressed. The internet was created and grew, very successfully, under traditional licensing!
Moreover, the ability to share (free) has always been inherent in the traditional licensing system. If someone took IP from a creator and the creator didn’t have a problem with it, the creator simply did not pursue the user. An implied license could be said to exist. No problem.
So, I urge all creative professionals not to get sucked into the rhetoric of “remixing” and “democratization of culture” etc. that is promulgated by CC. Did you know that if you license a work using CC, you can never revoke that license later? And that each user under that license can sublicense your work (same terms)? It’s like a virus-license! You lose all control, forever.
You have all the tools you need under the traditional licensing system. You can give and share on your own terms, but you can protect and monetize efficiently as well. The language of the CC is seductive and sounds ever so good, especially to the creative mind that loves collaboration and working with others, but its a siren’s call to your professional doom.
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Leslie Burns is a creative/marketing consultant and not a lawyer (yet). She is taking the summer off from law school to work on a 2nd ed. of her photo biz book. Follow her at burnsautoparts.com/blog, facebook.com/burnsautoparts, and twitter.com/LeslieBAP.
3 Responses to 'Creative Commons Licenses are Unnecessary and Dangerous'
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Seems like a scary proposition to give away your images for free. I admit, that business model doesn’t sound very viable when you make your money from licensing. I have three examples though of business models that relied heavily on free to make things work. Not pens or t-shirts we don’t make. Their actual IP.
* At concerts, the Grateful Dead let attendees tape their music at no charge. It became a culture where they had a loyal following and they made their money from concert sales and merchandise, rather than relying on the conventional sales of recordings.
* The music industry uses free in radio stations and social sites like youtube. Music needs to be heard, before anyone will make a purchase. People link to the songs to share them with friends. That viral spread is what gets the songs in front of people, so that people want to buy them.
* The last is Miss Aniela. Look her up on Flickr. She is a pop icon. She does self portraits of herself that are beautiful. She’s quite good and is well known for her work. Her work has become so popular that companies pay her to wear their goods in the images she creates. “Product placement.” She also sells the works in galleries and has books of her work and does quite well. It’s quite a business model that works due to visibility and the viral spread with the attribution that CC allows.
I have to be very straight forward about this. I am not advocating giving away rights. Using CC is not a way to make money easily. It needs to be used cautiously if at all. Once the image is out there with the license, there is no way to recall it. So enter into it with a complete understanding of the risks. In this time of changing business models, it’s important to explore new ideas though. This one may or may not be one for us, but I believe it’s worth discussing…
For info on CC and the specific licenses, go to http://creativecommons.org/about/licenses Be sure to see the last license on the page. The Attribution Non-Commercial No Derivatives license (cc by-nc-nd) It says, you may display the image, but you may not change it, you must give attribution and link to the artist and it may not be used for commercial purposes.
Todd:
Your 3 examples are not accurate analogies to the commercial photographer’s situation. The first two are present exactly the issue I have raised on my biz blog post “the Fallacy of Free”–they had other products to sell. The last is an outlier.
1) GD were launched in the middle of the hippy culture where money was considered dirty and wrong so there was that starting point. Nonetheless, they made money from selling records and licensing their music to radio and selling concert tickets (and eventually other licensed products like ties).
2) The music industry get paid for the radio use. Radio purchases licenses, traditional licenses, to play the music. There is nothing free there.
Also, the music videos (YouTube) etc. today are not the money-making products of the creatives–the concert tickets are.
3) Miss Aniela is an exception and must be remembered as such. This has happened through history–without CC. Once in a while someone breaks through from amateur to famous–gets discovered if you will. Just because she used Flickr + CC doesn’t correlate to Flickr + CC being good ideas. Millions of others have done exactly the same thing as she and have NOT hit.
ASCAP is very open about the types of licenses they offer for the performance and broadcast of their musical material. They are most definitely NOT free
http://www.ascap.com/licensing/termsdefined.html#perprogram
Some of their very specific options are listed here. Their model is definitely not in the realm of Creative Commons and shows that specific and standardized licenses are easily created outside of the realm of CC.
Just because CC exists does not mean it is the ideal solution for every (or any for that matter) creative industry out there. Almost any CC license can be replicated with terms similar to, but more appropriate to my needs outside of their philosophy or requirements. . If I felt there was a certain image i wanted to release under similar conditions for marketing reasons, I could do so without having to subscribe to the certain inflexibility’s of the language of CC licensing, especially the language the provides their licenses in a perpetual manner. Making it difficult or impossible to revoke the terms of that license should the nature, scope, needs, or applications of said work ever change.
Perhaps a form of standardized licensing is needed or helpful. But perhaps there is an option C out there that is better for photographers than CC in that regard.