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The Australian Copyright Council on the Creative Commons Licenses
17th January 2009

I have just come to light on some of the views and information that the Australian Copyright Council has published on the Australian Creative Commons licenses. They published an Information Sheet (HTML), an article and another article. In all of these they present almost entirely reasons why not to use Creative Commons licenses with maybe just one or two arguments for the licenses. I acknowledge that they are entitled to their opinion and are free to say this even as an independent body. Despite their views it was interesting to read and made me aware that I should think more carefully about copyright licenses. It may also be appropriate to note that most (if not all) of the board members of ACC are people who make a living from a strict permission culture as opposed to a free culture. For instance the board members include people from the Australasian Performing Right Association, the Australian Society of Authors, Banki Haddock Fiora Solicitors, Copyright Agency Limited, etc. I'm guessing that most of these organisations benefit from strict copyright laws, anyway I'll put that matter aside and go on.

I'll begin with the article by Ian McDonald (who is a Senior Legal Officer for the Australian Copyright Council), titled "Creative Commons licences for visual artists: a good idea?".

One of the reasons I use and like Creative Commons licenses is that the law is too restrictive for my liking but Creative Commons is (at least to me) the only well known widespread license that breaks down this restrictiveness.

McDonald says,

"Indeed, the one licence which a community-arts-oriented practitioner might be willing to grant—a licence to permit copying and modification only if their work is transformed or utilised in some new, creative way—is simply not available as a CC licence."

Yes, I can see occasions where an artist or creator may want to allow use of their works only for remixing whereby something new with additional value is created. But short of writing up your own license I am unaware of any respected licence which grants this. For reasons I argue later on we need to try to avoid duplicate license and try to limit them to a few common ones. The way I see it is Australians cannot license material in this way because there exists no license to do it (why doesn't the ACC write a set up?)―we are not all lawyers. We have to choose between all rights reserved and the few CC ones. I'm sure many will oppose this view but that is how I see it.

The article goes on,

"Under US law, copyright owners have a separate right to authorise the making of derivative works, but under Australian law, they do not: owners of copyright in musical, dramatic and literary works do have a tightly defined right of 'adaptation', but there is no equivalent right relating to artistic works. In other words, having given people permission to use your work under a CC licence, you couldn't generally stop them making 'derivative' versions even if you chose one of the 'NoDerivs' licences."

Well then, according to this, if they use a CC license or not it will not change the underlying derivative right for artistic works. Hence in this respect all rights reserved and CC NoDerivs are the same, so what's the big deal? Sure some people may have a false sense of security but they would be no better off with all rights reserved in this respect. At least now the ACC has pointed this out. Its good to know but from what I just read it doesn't change anything.

"Further, when it comes to the 'NonCommercial' licences, the prohibition relates only to uses of the relevant work 'in a manner that is primarily intended or directed toward commercial advantage or private monetary compensation' (my emphasis). This wording still allows—without payment—any business or corporation to use your work in items such as corporate gifts, calendars, publications and websites, and in any other way that might only secondarily achieve a commercial advantage. Nonetheless, in each of these situations, I can see no reason in principle why, as a general rule, practising artists would want to volunteer effectively to subsidise such commercial uses of their work."

Again, thank you for pointing this out, its good to know. It would be good if there was a licence that covered this.

Many of the issues raised in the article I think could be solved by creating a set of licenses which cover all the combinations of the common usage types. Whilst CC licenses are great for some things I can see times where you might want something a little more in the middle. But it is important too not have to many and provide human readable versions because the license legal code is too much for some people. I raise some points in this article about why I favour licensing the work with a copyright license when the work is published as opposed to opting for “All rights reserved.” and granting rights on a case by case basis when contacted.

Whilst creating your own license suited to your needs would work, I don't think this is the best approach to copyright licensing. The problems of creating your own licenses are,

What makes the CC licenses work in my opinion is much like what trademark laws do. When people see "Creative Commons Attribution 2.5 Australia", they instantly know what they can do. But if however everyone makes their own licenses people will have to try to decipher the legal mumbo jumbo.

Now to the information sheet published by ACC.

"For example, if you offer written material under a CC licence, you won’t be entitled to receive any of the payments made by governments and the education sector to collecting societies for use of your material; if you offer music or songs under a CC licence, you won’t be entitled to a share of the payments made to APRA by broadcasters and, for example, businesses using background music."

People who license under CC should already know this, it's good for letting them know. Not that this information sheet implies otherwise, but most people would be aware of this and they license CC because they want to make it easier for their work to be spread. They may not want money generated from their work going to a collecting society which you may not have bothered to join just for one photograph you put on the web. As a side note, I did not know what "collecting societies" like CAL (together with NEALS) were before now (though I had heard of them), but I'll look into it and write a post about it.

"You should also note that the CC licences generally take away your ability to actively manage your copyright, because they allow people to use your works in all sorts of ways without having to contact you. Of course, this is also the case where you allow a collecting society, or an agent, a publisher or a producer to deal with your work on your behalf."

This can also be a benefit, as you don't have to reply to usage requests, it also means that your work can be used how you wanted it to be used after you are no longer contactable or passed away. Also I'm guessing people are more willing to use your work if it is licensed then and there, rather than going to the effort of telling you their planned usage and asking for permission. This is better for society on a whole, see the Free Culture movement (I'll leave my arguments for this to another article).

At the end of the day, CC license are great for anyone who wants to release their work to the public allowing anyone to build upon it freely. The deed or human readable summary is just that a summary. I still love Creative Commons for both it's licenses and for its vision in what it aims to achieve. Minus the negative views thank you ACC for shining some light on the technical details of the legal code, but that won't stop me from using CC license all together.

I have used all quotes for the purposes of review and criticism.

Tags: copyright.