Article

By David McLaughlin | 4 February 2008

The idea of a more relaxed form of copyright protection, known as ‘Creative Commons', has been creating quite a buzz world wide for some time now. With the recent establishment of a specific Creative Commons organisation in New Zealand in the form of Creative Commons Aotearoa New Zealand (www.creativecommons.org.nz), New Zealand looks to be the latest in a long line of countries who can make more direct use of the Creative Commons framework.

So what is Creative Commons and why all the excitement? In this issue of Art All we'll be taking a look at Creative Commons, examining some of the key factors which underpin Creative Commons and outlining some of the issues to be aware of if you want to start to make use of Creative Commons in relation to your creative endeavors.

At its most basic level Creative Commons represents a certain philosophical approach to the protection of intellectual property. In essence Creative Commons believes that copyright as it currently exists is, in many cases, too restrictive a framework for helping people manage and disseminate their ideas and creations. Consequently, what Creative Commons does is take the basic tenants of copyright law and provide some instances where a more flexible approach to their enforcement applies. Creative Commons aims to provide a legally robust platform and process by which copyright owners can seek to distribute and allow the development of their copyright works.

So in summary, Creative Commons is based on copyright law. Creative Commons only deals with creations which are works in which copyrightable can subsist. Generally speaking this will be all kinds of art work, including photography, subject of course to any such works meeting the other requirements at law which are needed for copyright to exist.

The primary way that Creative Commons puts into practice the principles of a more flexible approach to copyright is through a set of standard licences which the creator of a copyright work can agree to let others make use of their copyright works under. These licences are available to copyright owners free of charge and are designed to be solid, legally binding documents.

Now when I talk about Creative Commons providing licences, what I really mean is the international organisation which is responsible for advancing the principles of Creative Commons has produced a series of licences which encapsulate the philosophy of Creative Commons. Although based in America, other similar organisations have subsequently been established around the world to progress the Creative Commons philosophy and Creative Commons Aotearoa New Zealand is one of these. As part of this localised approach to dealing with the issues associated with Creative Commons, the standard Creative Commons licences have also been adapted by these local organisations to more specifically deal with the relevant legal issues in that jurisdiction. This is the approach which has also been adopted in New Zealand.

The different Creative Commons licences provide for the licensing of copyright works on a range of different basis. For instance you can provide for your copyright work to be freely distributed and displayed as long as you are credited as the author of the work in any instance. You can also provide that your work can be used for any number of purposes as long as no one seeks to make any direct commercial gain from the use of your work. Another useful aspect of certain of the standard Creative Commons licences is that you can provide for how use of your work can be made in terms of whether just parts of the licensed work can be used by other people or whether the work can only be used if reproduced in its entirety and unaltered.

It should be noted that Creative Commons licences can be used in conjunction with more direct forms of contracting. In other words there is nothing to stop you from licensing the use of your photograph or design under Creative Commons for purely noncommercial uses while at the same time entering into some kind of commercial arrangement with a specific third party for use of your work in return for the payment of a royalty or some other form of remuneration.

An important point to note in respect of the Creative Commons set of licences is that they don't seek to limit any rights on freedom of use which currently exist under copyright law in respect of copyright works. For instance under copyright law the standard legal protections given to copyright works are loosened in certain situations such as in respect of news reporting where a photograph otherwise under control of the copyright owner may be used in a relevant newspaper story free of charge and without the need to gain prior permission. Similarly, some of the copying restrictions provided by copyright are loosened in the context of educational uses of copyright works. As a matter of principle the Creative Commons licences do not seek to limit these generally allowed uses.

Another of the strengths of the Creative Commons licences is that once you agree to licence a certain copyright work under these licences then the work can be used under the terms of that licence by any number of people without the need for you to approve each instance of use. Unlike copyright law which relies on specific permission, this approach of Creative Commons potentially allows significantly less constrained use of copyright works.

An important issue to be aware of here is that once you have licensed a work using a Creative Commons licence you can not cancel that licence. You can of course choose to not release any further copies of the work in question under the licence but you will be powerless to stop any use of the work already released under a current licence. As individual instances of use do not have to be cleared with you (as outlined above) you can see how once you release a work under a Creative Commons licence you really have no control over its ongoing distribution.

Although the issues we have looked at in this edition of Art All really cover the fundamental principles of Creative Commons and the related Creative Commons licences there are other more specific issues that will also need to be considered whenever you are looking at licensing under a Creative Commons licence. For instance are you the holder of all the copyright rights in the work you are looking at licensing?

As the Creative Commons licences also do not provide any warranties that the person licensing a work under a Creative Commons licence is the holder of all necessary rights, you may also need to so some background checking yourself if you are looking at obtaining a licence to use a work under a Creative Commons licence as you will not be protected if the material you have licensed turns out to infringe the rights of another party.

Also does the exact wording of the Creative Commons licence you are looking at using provide you the protection or flexibility you are after in any specific situation? As each of the Creative Commons licences have been drafted to achieve a slightly different specific goal it is important that you have a good understanding of which licence is appropriate for you depending on what copyright rights you control and what you are looking to achieve.

David McLaughlin is a specialist arts lawyer with Auckland law firm McLaughlin Law (www.mclaughlinlaw.co.nz). He can be contacted by email at david@mclaughlinlaw.co.nz or on 021 630 201.

Disclaimer:
This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article.