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Why and how to fix Creative Commons

No one is forcing anyone to put their work into the public commons. But, once you do, you need to accept that you no longer can wholly control how it is used.

As readers of this blog know, two of my interests are photography and open source, so I'm naturally particularly interested in the way the two intersect with each other. As a result, I've been doing a fair bit of reading and thinking about the Creative Commons license in the context of photos and, more broadly, how photos are best protected and shared in an online world. I don't claim to have all the answers, but I wanted to share some threads that I've been researching and pondering.

As I first discussed in a post back in November, the Noncommercial condition in some Creative Commons licenses needs to be clarified. The problem is that noncommercial, in the sense of not associated with making money, is such a vague term in an online world where Google AdSense and other forms of advertising are ubiquitous and so many Web sites and blogs represent some ambiguous intersection of the personal and professional. The Creative Commons organization apparently recognizes that there are issues. On their site, they state that: "In early 2008 we will be re-engaging that discussion and will be undertaking a serious study of the NonCommercial term which will result in changes to our licenses and/or explanations around them."

I can't say that the guidelines in process really clear things up a lot. They seem to pay a lot of attention to US-centric technical distinctions related to what constitutes a nonprofit organization (IRS 501(c)(3)). Many very large and well-funded organizations, such as the National Rifle Association and the Sierra Club, are non-profits. On the other hand, the draft guidelines seem to suggest that some money-making uses are OK so long as it's just an "individual."

With respect to photography specifically, "Commercial" and "Noncommercial" are particularly confusing terms because commercial already has a fairly specific meaning in the context of photography. It mostly applies to photographs used for advertising and marketing purposes--as opposed to editorial or artistic uses. It's an important distinction within photography because commercial photographs typically require things like model releases from subjects whereas other types of photographs do not.

Thus, it seems to me that a Creative Commons definition that focused more on the type of use rather than the type of user could help to clarify things. A Noncommercial license could, for example, prohibit uses that relate to marketing, advertising, and other such uses. It might also prohibit the direct resale of the photo (as, for example, stock sites do).

But, you cry, a magazine like The Economist shouldn't be able to use a Noncommercial image either--even for editorial purposes. 

That's not an irrational position but I'd argue that if Noncommercial is defined to read "not associated with making money," you're effectively prohibiting the vast bulk of uses that aren't already covered under Fair Use (use in academic environment), are trivial (I make a print to hang on my wall at home), or both. Sure, you can have such a license, but why bother? Some personal blogs and MySpace pages might gain access to some photos under such a license but it's a pretty small slice of the possible uses. If you truly don't want anyone to (legally) profit from your photographs however indirectly, there's a simple option: Don't release them under Creative Commons.

Have I convinced you that the above would be a reasonable approach to a Noncommercial Creative Commons license?

If so, I hope you won't be too upset at me for burying my real lede. Because if the above is a reasonable Noncommercial CC license--and I think it is--then we don't need it. And that's actually a good thing because if you take a good look at the Creative Commons license summary page, it's clearly something that only a license geek could love and is far too complex in its Chinese menu approach to be widely understood and accepted.

Let's start with why we don't need the Noncommercial license. One justification for having a Noncommercial is that you don't want your photos used in some big advertising campaign or in a company's annual report without compensation. However, in fact, photographs licensed under Creative Commons licenses of any sort aren't a good fit for commercial photography anyway.

One problem is that they haven't cleared model and property rights as Virgin Mobile Australia discovered. The attribution requirement would be problematic for many other types of uses. (I can't imagine the typical marketing presentation that I see consistently incorporating appropriate bylines as it passes through dozens of hands and revisions.) Dan Heller discusses even more serious problems in this post. I'm not sure I buy into everything Dan writes, but he raises a lot of good issues that, while not limited to commercial photography, are probably most pertinent there.

As for reselling photos licensed under Creative Commons? That seems far better controlled by limiting access to original high-resolution images than it does license terms.

I could also make a variety of arguments against having separate licenses that allow or prohibit changes to an artistic work.

At the risk of oversimplifying, open-source software licenses are mostly concerned with the degree to which derivative works have to be given to the commons. With rare and narrow exceptions, they don't get into who is using the software or the manner in which the code can be changed or extended. That may seem perfectly normal, but that's only because we're so used to it. One can easily imagine an open-source license that says some piece of software can only be used and modified in an academic setting. That such licenses are rare to nonexistent is a large part of why open-source software has become so commonplace.

By contrast, Creative Commons licensing offers up a complicated set of options that seem calculated to encourage people to contribute works to the commons while not pushing their envelope to allow any uses with which they're uncomfortable. While an understandable approach, it creates a system that's far too complicated and doesn't, in my opinion, have any real benefit beyond a simple license that requires attribution and which requires downstream derivatives to maintain the same license.

No one is forcing anyone to put their work into the public commons. But, once you do, you need to accept that you no longer can wholly control how it is used. The open-source software world understands this to its benefit. Now, open-content needs to do the same. The current regime is far too complex to implement and communicate.