CC and the law: Will the Creative Commons put lawyers out of work?
Zeedna Chief Innovator Mahmoud Abu-Wardeh’s says CC licensing ‘takes away lawyers’ jobs’. The Rights Lawyers’ Fiona Robertson, a lawyer herself, shares her thoughts on the matter.
July 11, 2011 11:29 by p.deleon
The quote that started this discussion came from Mahmoud Abu Wardeh, Co-Founder & Chief Innovator at Zeedna and Co-Founder at Baraka Ventures. He said:
“In some ways, Creative Commons licensing takes away lawyers’ jobs. The idea with Creative Commons is that they are ready-made licenses that help you publish your content. There is no formal process.”
And here’s the perspective from lawyer Fiona Robertson who works at Dubai-based The Rights Lawyers:
The Creative Commons are phenomenal licensing arrangements that can permit parties to use content without having to go through time-consuming research and negotiations with rights owners.
First, let’s look at the misconceptions. A Creative Commons license does not mean that copyright does not apply to a work. Nothing could be further from the truth; the rights owner is simply listing the terms under which you can license the copyright in the work without having to obtain specific consent. Creative Commons also does not mean a work is in the public domain. Public domain works are no longer subject to any copyright laws at all. This is usually because the copyright term has expired, so you can use the work in any way you wish.
Under a Creative Commons license, you don’t need to contact the rights owner in order to use their work; you simply comply with the terms that have been set by the rights owner. A very compelling reason for using this material is that it is free. Many people are going to like this arrangement, and so they should.
For organisations that do not have the financial means to negotiate licenses (or hire a lawyer to check the rights positions), Creative Commons is a windfall. If you work at a charity (charities are large users of Creative Commons work), you can use the work and know that you will not face a legal problem. No more license fees, no more negotiations with owners who do not understand your cause.
From a legal perspective, the greatest change is with the fair dealing provisions (those exceptions to copyright that permit use of work without a license from the rights owner). These are complex and sometimes subjective areas of copyright law. If you use work under fair dealing you often have to argue with the rights owner as to whether it really was fair dealing or not.
I HAVE A LICENSED DREAM
Take the footage of Martin Luther King Jr. speaking about his dream. This is owned by the King estate, but if you are using the material for the purposes of news, you do not have to clear it. However, his estate can still claim that the use was not valid – for example, if you used it in a news story about nightmares, the estate could legitimately claim that the use should have been licensed. If this footage is available under a Creative Commons license, that uncertainty is removed and you simply comply with the terms that have been set. It is also brilliant for websites, where your work may cross into different countries with different fair dealing rules.
The education sector is another that will benefit from knowing that works can be used without licensing and without an argument further down the line.
Of course, rights holders do not always want work to be used in all ways, so selecting your Creative Commons license is very important. Do you want a commercial organization using your image in an ad for a carbonated beverage? If you put the material out under a simple “Attribution” license, then a third party can do that as long as they give you credit. If the work is under an “Attribution Non-Commercial” license and someone wants to use it in a carbonated beverage ad, they will have to contact the rights holder to obtain a license, in the same way as under normal copyright laws.
It is imperative that you read and understand the terms of the Creative Commons license for the work in question. If the licence is “Attribution Share-Alike,” that means any derivation you make of that work must be supplied to the public on the same terms. If you don’t do this, you are breaching the terms of the Creative Commons license.
And that’s where we see the collapse of the theory that Creative Commons licenses will mean the end of copyright lawyers. If you do anything that involves a contract (even where it is a standard license), you can be sure that at some point there will be claims of a breach, and the first thing everyone will do is fly to the phone and dial their lawyers.
Lawyers simply never go away.
Fiona Robertson is a Lawyer at The Rights Lawyers.
This article was originally published in Communicate magazine, July/August 2011.