Is Creative Commons a Panacea for Managing Digital IPs? (Part 3: The Pitfall of a Free Licence)

One major reason that scholars and institutions are using CC licenses is the ease of applying them to creative works. The Directory of Open Access Journals(DOAJ), which is regarded as “both an important mode of discovery and marker of legitimacy within the world of open access publishing,” now recommends CC licenses as a best practice.[14]

DOAJ explicitly encourages scholars to use Creative Commons’“simple and easy” license chooser tool. Indeed, the Creative Commons website provides scholars and institutions a very user-friendly way to select and apply a license to copyrightable works.[15]

Anyone can place a CClicense on a work by copying and pasting from its website. However, this oversimplified process of handling intellectual property rights of creative works may mislead both copyright owners and copyrighted works users to overlook pitfalls of this free license, including unintentional copyright and other intellectual property rights infringements.

More specifically, one prominent legal formality of CC licenses is that licensees do not need to pay to register with Creative Commons to apply a CC license. As indicated by Creative Commons website, a CC license is legally valid as soon as a user applies it to any material the user has the legal right to license. Creative Commons also does not “require registration of the work with a national copyright agency.”[16]

While copyright protection is automatic the moment a work is created and “fixed in a tangible form,” there are various advantages to register copyrighted works through the United States Copyright Office to establish a public record of the copyright claim.[17] One foremost important advantage of copyright registration is that copyright owners can file an infringement suit of works of U.S. origin in court.

Actually, filing a registration before or within five years of publishing a work will actually put the copyright owner in a stronger position in court to validate the copyright.[18] Additionally, copyright registration enables one to get awarded statutory damages and attorney’s fees and to gain protection against the importation of infringing copies.[19]

The emphasis on a free-to-use license along with the lack of clarification of the functions of copyright registration on the website of Creative Commons may not only mislead scholars to ignore important legal formalities within the copyright law, but also increase the abuse of original materials by stakeholders such as predatory publishers. One example is how the Integrated Study of Marine Mammalsrepackaged existing articles taking advantage of the Creative Commons licenses used by PLOS ONE, which has been publishing articles on digital humanities.[20]

The oversimplified process of using CC licenses advocated by Creative Commons website may also prevent licensors from double-checking or clarifying if they have the legal right to license a work. In 2013, Persephone Magazine, which used an image with a Creative Commons license, was later sued for $1,500 for using it. It turned out the photo did not belong to the person who uploaded it with a CC license, which led to 73 companies who used it being sued. Persephone Magazineclaimed that $1,500 was more than its entire advertising revenue for the year and it had to ask its users to donate just to keep the site going.[21]

Therefore, scholars of digital humanities projects, which usually include different types of content such as artworks and photographs, should be wary of using CC licensed images. Otherwise, a freely available license might end up costing a scholar unexpected money and energy. In the meantime, when deciding to put their projects under CC licenses or to publish their works ina journal that requires CC licenses, scholars should also be reminded to make accurate and clear copyright statements to prevent innocent infringements of other copyright owners’ works. For example, a team of art historians who create an online map of architectures in Ancient China are very likely to use and critique other people’s images in digital projects under fair use. These digital humanists should cite image sources and clarify the scope of the CC license that they apply to their project.

It is understandable that in order to promote an open, sharing culture, the application of a CC license is intentionally designed to be simple and free by Creative Commons to fulfill its mission. However, the misuse of a free license can lead to false licenses and more innocent infringements and ultimately costs. Academic librarians should become aware of these pitfalls and provide more in-depth training on CC licenses to scholars, especially by collaborating with campus centers of digital humanities or language and literature faculty as well as other institutional research support departments as suggested by Fraser and Arnhem.[22]

1. Amanda Hornby and Leslie Bussert, "Digital Scholarship and Scholarly Communication," University of Washington Libraries, accessed November 30, 2016, https://www.uwb.edu/getattachment/tlc/faculty/teachingresources/newmedia.

2. Oya Y Rieger, “Framing Digital Humanities: The Role of New Media in Humanities Scholarship,” First Monday 15, no. 10 (October 11, 2010), http://firstmonday.org/ojs/index.php/fm/article/view/3198.

3. Elizabeth Joan Kelly, "Rights Instruction for Undergraduate Students: Needs, Trends, and Resources," College & Undergraduate Libraries 25, no. 1 (2018): 1-16, https://doi.org/10.1080/10691316.2016.1275910

4. Daniel Hickey, "The Reuse Evangelist: Taking Ownership of Copyright Questions at Your Library," Reference & User Services Quarterly 51, no. 1 (2011): 9-11;“Research Guides: Image Resources: Creative Commons Images,”Creative Commons Images -Image Resources -Research Guides at UCLA Library,accessed April 28, 2019,https://guides.library.ucla.edu/c.php?g=180361&p=1185834; “Finding Public Domain & Creative Commons Media: Images,”Research Guides,accessed April 28, 2019, https://guides.library.harvard.edu/c.php?g=310751&p=2072816 and Harvard are two good examples.

5. Lewin-Lane et al., "The Search for a Service Model of Copyright Best Practices in Academic Libraries," Journal of Copyright in Education and Librarianship 2, no. 2 (2018): 1-24. Harvard.For example, when conducting a literature review of the copyright education in academic libraries to search for best practices, does not discuss any limitation of CC licensesin this article.

6. Zachary Katz, "Pitfalls of Open Licensing: An Analysis of Creative Commons Licensing," Idea: The Intellectual Property Law Review 46, no. 3 (2006): 391-413.

7. Eric E.Johnson,"Rethinking Sharing Licenses for Entertainment Media," Cardozo Arts & Entertainment Law Journal 26, no. 2 (2008): 391-440.

8. AurelijaLukoseviciene, "Beyond the Creative Commons Framework of Production and Dissemination of Knowledge," http://dx.doi.org/10.2139/ssrn.1973967.

9. Mashael Khayyat and Frank Bannister,“Open Data Licensing: More than Meets the Eye,” Information Polity:The International Journal of Government & Democracy in the Information Age20 (4): 231–52, https://doi:10.3233/IP-150357.

10. Herkko Hietanen, “The Pursuit of Efficient Copyright Licensing: How Some Rights Reserved Attempts to Solve the Problems of All Rights Reserved,” Lappeenranta University of Technology, 2008.

11. Christa Engel Pletcher Burger, “Are Publicity Rights Gone in a Flash?: Flickr, Creative Commons, and the Commercial Use of Personal Photographs,” Florida State Business Review 8(2009):129, https://ssrn.com/abstract=1476347.

12. Robert W Gomulkiewicz, “Open Source License Proliferation: Helpful Diversity or Hopeless Confusion?” Washington University Journal of Law & Policy 30 (2009): 261;Expanded Academic ASAP, accessed April 28, 2019, http://link.galegroup.com.libproxy.csun.edu/apps/doc/A208273638/EAIM?u=csunorthridge&sid=EAIM&xid=4bbf2442.

13. Jacob H. Rooksby, “A Fresh Look at Copyright on Campus,” Missouri Law Review (Summer 2016):769;General OneFile, accessed April 27, 2019, http://link.galegroup.com.libproxy.csun.edu/apps/doc/A485538679/ITOF?u=csunorthridge&sid=ITOF&xid=1f2822f3.

14. “eScholarship: Copyright & Legal Agreements,” accessed December 1, 2016, http://escholarship.org/help_copyright.html#creative.

15. “Directory of Open Access Journals,” DOAJ, accessed December 1, 2016, https://doaj.org.

16. “Frequently Asked Questions—Creative Commons,” accessed December 7, 2016, https://creativecommons.org/faq/#do-i-need-to-register-with-creative-commons-before-i-obtain-a-license.

17. “Copyright in General,”U.S.Copyright Office, accessed July 30, 2019, https://www.copyright.gov/help/faq/faq-general.html.

18. “Why Should I Register My Work If Copyright Protection Is Automatic?,”Copyright Alliance,accessed July 28, 2019, https://copyrightalliance.org/ca_faq_post/copyright-protection-ata/.

19. “Copyright Basics,” U.S. Copyright Office and Library of Congress, accessed November 30, 2016. https://www.copyright.gov/circs/circ01.pdf#page=7.

20. Phil Clapham,“Are Creative Commons Licenses Overly Permissive? The Case of a Predatory Publisher,”BioScience(2018):842-43, accessed April 20, 2019, https://doi:10.1093/biosci/biy098; Cornelius Puschmann and Marco Bastos,“How Digital Are the Digital Humanities? An Analysis of Two Scholarly Blogging Platforms,” Plos One 10, no. 2 (2015), accessed April 20, 2019. https://doi:10.1371/journal.pone.0115035.

21. “Why Your Blog Images Are aTicking Time Bomb,” Koozai.com, accessed December 2, 2016, https://www.koozai.com/blog/content-marketing-seo/blog-sued-for-images/.

22. John W. White and HeatherGilbert eds., Laying the Foundation: Digital Humanities in Academic Libraries (West Lafayette: Purdue University Press, 2016), ProQuest Ebook Central.

23. “Considerations for Licensors and Licensees—Creative Commons,” accessed December 7, 2016, https://wiki.creativecommons.org/wiki/Considerations_for_licensors_and_licensees.

24. “The Terms ‘Revocable’ and ‘Irrevocable’in License Agreements: Tips and Pitfalls,” accessed December 7, 2016, http://www.sidley.com/news/the-terms-revocable-and-irrevocable-in-license-agreements-tips-and-pitfalls-02-21-2013.

25. Mark Seeley and Lois Wasoff, “Legal Aspects and Copyright-15,”in Academic and Professional Publishing, edited byRobert Campbell, Ed Pentz,and Ian Borthwick (Cambridge, UK: Elsevier Ltd, 2012), 355-83.

26. Douglas MacMillan, “Fight Over Yahoo’s Use of Flickr Photos,” Wall Street Journal, November 25, 2014, sec. Tech, http://www.wsj.com/articles/fight-over-flickrs-use-of-photos-1416875564.

27. “Flickr Apologizes but What About CC Abuses by Others?,” accessed December 7, 2016, http://www.artists-bill-of-rights.org/news/campaign-news/flickr-apologizes-but-what-about-cc-abuses-by-others?/.

28. “The Terms ‘Revocable’ and ‘Irrevocable’ in License Agreements: Tips and Pitfalls,” accessed December 7, 2016, http://www.sidley.com/news/the-terms-revocable-and-irrevocable-in-license-agreements-tips-and-pitfalls-02-21-2013.

29. “Legal Code—Creative Commons,” accessed December 7, 2016, https://wiki.creativecommons.org/wiki/Legal_code.

30. “Why CC-BY?—OASPA,” accessed December 7, 2016, http://oaspa.org/why-cc-by/.

31. “Why CC-BY?—OASPA.”

32. “Intellectual Property Policy,”The Andrew W. Mellon Foundation, accessed July 28, 2019, https://mellon.org/grants/grantmaking-policies-and-guidelines/grantmaking-policies/intellectual-property-policy/.

33. “Why I’m Giving up on Creative Commons on YouTube,” Eddie.com, September 6, 2014, http://eddie.com/2014/09/05/why-im-giving-up-on-creative-commons-on-youtube/.

34. “Creative Commons—Attribution 4.0 International—CC BY 4.0,” accessed December 7, 2016, https://creativecommons.org/licenses/by/4.0/.

35. “Why I’m Giving up on Creative Commons on YouTube.”

36, “Creative Commons—Attribution 4.0 International—CC BY 4.0.”

37. “Why I’m Giving up on Creative Commons on YouTube.”

38. “Creative Commons—Attribution 4.0 International—CC BY 4.0.”

39. Ibid.

40. “CC Search,” accessed December 7, 2016, https://search.creativecommons.org/.

41. “Creative Commons—Attribution-NonCommercial-ShareAlike 4.0 International—CC BY-NC-SA 4.0,” accessed December 7, 2016, https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode.

42. “U.S. Copyright Office Fair Use Index,”U.S. Copyright Office, accessed April 21, 2019, https://www.copyright.gov/fair-use/.

43. Ibid.

44. Ibid.

45. Jerry D Campbell,“Intellectual Property in a Networked World: Balancing Fair Use and Commercial Interests,” Library Acquisitions: Practice and Theory 19, no. 2 (1995): 179-84, https://doi:10.1016/0364-6408(95)00020-A; Igor Slabykh,“Ambiguous Commercial Nature of Use in Fair Use Analysis,” AIPLA Quarterly Journal 46, no. 3 (2018): 293-339.

46. “Defending Noncommercial Uses: Great Minds v Fedex Office,” Creative Commons, August 30, 2016, https://creativecommons.org/2016/08/30/defending-noncommercial-uses-great-minds-v-fedex-office/.

47. “Princeton University Press v. Michigan Document Services,” Bitlaw, accessed December 7, 2016, http://www.bitlaw.com/source/cases/copyright/pup.html#IIIA.

48. Justia, “Great Minds v. FedEx Office & Print Services, Inc,”Stanford Copyright and Fair Use Center, March 21, 2018, https://fairuse.stanford.edu/case/great-minds-v-fedex-office-print-services-inc/.

49. Minjeong Kim,“The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses,” Journal of Computer‐Mediated Communication 13, no. 1 (2007): 187-209,https://doi:10.1111/j.1083-6101.2007.00392.x; “Directory of Open Access Journals,” DOAJ, accessed December 1, 2016, https://doaj.org.

50. “FEATURE: Creative Commons: Copyright Tools for the 21st Century,” accessed December 7, 2016, http://www.infotoday.com/online/jan10/Gordon-Murnane.shtml.

51. “The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses.”

52. Ibid.

53. “Creative Commons—Attribution-ShareAlike 4.0 International—CC BY-SA 4.0,” accessed December 7, 2016, https://creativecommons.org/licenses/by-sa/4.0/legalcode#s6a.

54. “17 U.S. Code § 101—Definitions,” Legal Information Institute, accessed April 20, 2019, https://www.law.cornell.edu/uscode/text/17/101.

55. “Creative Commons—Attribution-NonCommercial-NoDerivatives 4.0 International—CC BY-NC-ND 4.0,” accessed December 7, 2016, https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.

56. “Creative Commons—Attribution-NonCommercial-NoDerivatives 4.0 International—CC BY-NC-ND 4.0.”

57. The famous Campbell v. Acuff-Rose Music case established that a commercial parodycould qualify as fair use.

58. Katz, “Pitfalls of Open Licensing,”411.

59. “Professional Ethics,”Tools, Publications & Resources, American Library Association, February 6, 2019, http://www.ala.org/tools/ethics.

60. “Creative Commons—Attribution-ShareAlike 4.0 International—CC BY-SA 4.0,” accessed December 7, 2016, https://creativecommons.org/licenses/by-sa/4.0/.

61. Molly Houweling,“The New Servitudes,” Georgetown Law Journal 96, no. 3 (2008): 885-950.

62. “Compatible Licenses,” Creative Commons,accessed December 7, 2016, https://creativecommons.org/share-your-work/licensing-considerations/compatible-licenses/.

63. Katz, “Pitfalls of Open Licensing,”391; Susan Corbett, “Creative Commons Licences,the Copyright Regime and the Online Community: Is There a Fatal Disconnect?,” The Modern Law Review 74, no. 4 (2011):506, http://www.jstor.org/stable/20869091.

64. Lawrence Lessig,“Against Transparency,” New Republic, October 8, 2009, https://newrepublic.com/article/70097/against-transparency.

65. “Creative Commons CEO Apologizes To Virgin Mobile—Stock Photography News, Analysis and Opinion,” accessed December 7, 2016, https://www.selling-stock.com/Article/creative-commons-ceo-apologizes-to-virgin-mob.

66. “Frequently Asked Questions,”Creative Commons, accessed July 30, 2019, https://creativecommons.org/faq/#how-are-publicity-privacy-and-personality-rights-affected-when-i-apply-a-cc-license.

67. “Defending Noncommercial Uses: Great Minds v Fedex Office,” Creative Commons, August 30, 2016, https://creativecommons.org/2016/08/30/defending-noncommercial-uses-great-minds-v-fedex-office/.

68. Andrea Maloneet al., “Center Stage: Performing a Needs Assessment of Campus Research Centers and Institutes,” Journal of Library Administration 57, no.4 (2017): 406–19, https://doi:10.1080/01930826.2017.1300451.

69. Laura Gordon-Murnane,“FEATURE: Creative Commons: Copyright Tools for the 21st Century,” Information Today, accessed December 7, 2016, http://www.infotoday.com/online/jan10/Gordon-Murnane.shtml.

70. Ibid.

Originally published as “Attribution Confusion” with the Creative Commons Attribution 4.0 International license.