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The many facets of science photography

Creative Commons Is Not Public Domain

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I do not Creative Commons license my images.

The reason is simple: I am evil consumers of Creative Commons licenses do not understand them. In particular, they seem to miss one key bit of information:

Creative Commons licences are contracts.

What do I mean by that? Creative Commons makes agreements. It is not law. It is not an alternate legal framework for intellectual property. In fact, CC-licensed content is subject to the same copyright laws that exist for all other creative properties. Rather, the novelty and genius of Creative Commons is in its creation of a widespread, standardized set of contracts between content creators and content consumers so that both abide by existing copyright infrastructure.

There's a simpler metaphor for understanding this concept, though. Creative Commons is the McDonald's of intellectual property paperwork.

McDonald's is everywhere. Every city, every town, nearly every country. Everyone knows a Big Mac. Everyone knows to order a meal combo with a simple number. Everyone knows whether they want fries with that. The franchise restaurant is a stunningly successful business model, and it works because it reuses the same simple, easily recognizable menu no matter where it occurs.

Creative Commons does the same thing, except with legal agreements for intellectual property instead of burgers. It's really quite elegant, and I'd use it myself if not for the catch. Creative Commons only functions properly when both content creators and content users have the same understanding of the simplified CC contract. In my experience, content users fail at this more often than not. They arrive at the drive-thru knowing what to order, so to speak, but they miss the pay window.

As way of an example, and the reason I am ranting about Creative Commons this morning, is WIRED's science blog. The lead article on ant behavior is illustrated by two ant photos (this and this).

What is the problem? Well, the obvious issue is that the second image is credited to Wikimedia instead of Antweb, and Wikimedia clearly states any use of that image is to be accompanied by a credit and a link back to Antweb. WIRED does neither.

But a flawed credit line in this one case could be more a typo than representative of a serious problem. More troubling is the apparent ignorance of the Creative Commons license terms for the top image. Here are the conditions stated for that image, which bears a CC Attribution-NonCommercial-NoDerivs 2.0 Generic license.

  • Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
  • Noncommercial — You may not use this work for commercial purposes.
  • No Derivative Works — You may not alter, transform, or build upon this work.

WIRED is a private for-profit entity. Danielle Venton, the author, is a paid blogger. Both earn money from the site's advertising revenue, which, as you can see from the screen capture, forms a substantial presence on the site. The commercial nature of this context should be uncontroversial. The blogger, to remain compliant with U.S. copyright law, needs to obtain permission for use that goes beyond the stated non-commercial CC license.

Now, maybe the blogger wrote to photographer "s.alt" and obtained commercial-use permission. I doubt it, however, considering the sloppy treatment of the credit behind the second image. It may also be that the image creator would grant such permission. Or it could be that the photographer feels entitled to some of the cash that his or her image is helping WIRED earn. Who knows? The only way to ensure that the content creator's rights are respected is a mutually-agreed legal contract for commercial use.

To get a sense of how large this copyright problem may be for WIRED, I combed the ten most recent posts using Creative Commons images for commercial license terms. Here's the breakdown:

80% of Creative Commons-licensed images recently appearing at WIRED Science may violate CC license terms

Again, I do not know that the bloggers didn't write the photographers to obtain commercial-use permission. But I doubt it. My judgement is borne from personal experience. I see my images popping up on commercial blogs all the time, and fewer than one in ten asks my permission.

I don't mean to single out WIRED, either. I'm only picking on them for the recent ant example. In reality, many commercial blog networks show rampant disregard for the rights of artists, photographers, and musicians. They may not have been caught, yet, but they could incur substantial legal liability when a copyright owner decides to seek damages. After all, using an image beyond the bounds of the license is breaking the law.

The bottom line is this: if someone else's creative work is helping you make money, you have a moral and a legal obligation to reach an agreement with that person about the terms of use. Creative Commons is supposed to make this easier, but it only works if the content consumers treat CC as a contract and not a blanket license for free use. Creative Commons is not public domain.

The views expressed are those of the author and are not necessarily those of Scientific American.

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