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Creative Commons Licenses: Doubts and Questions

Consider this case of mixed content: If an ebook chapter contains 12 stories that are CC attribution noncommercial and 1 story that is copyrighted, (but reprinted with permission,) do I as distributor have the right to say that the ebook (i., the “collective work”) is creative commons? My guess is that it has to be described according to its most restrictive license. If so, having mixed content defeats the purpose of using creative commons licenses in the first place. You’d have to convince authors/publishers that CC attribution noncommercial licenses are sufficient to protect present and future commercial interests.

Let’s look at the commercial clause in the CC attribution noncommercial use license:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

The three issues I see are:

1. Does cnn.com have the right to post a poem with attribution-noncommercial CC license on its home page? What about Time-Warner rewrapping that same poem in a “free” ebook on AOL’s
online channels accessible to members only?
(Content may be free, but the distributor may still be seeking commercial advantage through advertising or memberships, resulting in indirect commercial advantage. The license says that it cannot be considered “commercial use” unless there is a payment in connection with the exchange of works. But that seems to contradict the first sentence of the same paragraph. The key phrase is “primarily intended.” What does that mean? )

2. Are there situations where cc licenses can be revoked by the content creator? The license goes into detail about license termination, but I can imagine cases where even this could be disputed. I’m dealing with this now. I found a great graphic on flickr to use as a cover graphic for my ebook, and the photographer has put CC licenses on everything. No problem, right? But I have a strong feeling that the photographer didn’t intend to use CC, even through ignorance
or honest mistake or (conceivably) a website error. In that sort of situation, I suspect artists have little recourse, but the courts will probably need to carve out exceptions where the licensing wasn’t made with the creator’s full knowledge and consent. Also, in an age where people click rapidly through online licenses and EULA’s, they can forfeit rights without realizing it.

3. The third case concerns donations/tipping. Consider the case mentioned above. Suppose my ebook uses a graphic that is CC noncommercial attribution. I put the completed work (which is mostly my own work) and include a tipjar on the same page. If my ebook gets downloaded 2 million times and I receive $200,000 through my tipjar, does the person who created the original graphic have a legitimate claim against me?

Donations are voluntary and not normally tied to sale of a product (although as I argued before, the donation model may turn out to be the only viable model for compensating people for creative content. So far tipjars have been pretty inconspicuous (if only because up to now they haven’t been particularly successful). But as they become easier to set up and as conventional distribution become more out-of-reach for the independent creator, donations (like “nagware”) will become more important to sustaining artistic endeavors. Content sites can be just as “nagging,” making it hard to distinguish between the two types of profit-seeking endeavors. Creative commons licenses don’t seem to anticipate the fact that the majority of compensation might come post-consumption rather than pre-consumption.

These licenses will evolve over time, through court cases and more precise language. I am not a lawyer, but the CC licenses don’t seem sufficiently tested in the Courts to know what I can and cannot do. There still is a bit of risk in distributing CC content and labeling content as CC. On the other hand, there is also tremendous opportunity.

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