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Julie Bernstein asked me the following question: "I am curious if your
views on Creative Commons have changed since the four articles you
published on this topic in '08."
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Julie is referring to these articles (part1, p2,
p3, p4) where I describe the CC as a great
licensing method for almost all media types except photography.
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In summary, what the CC has done is create a legally legitimate
infrastructure for those who freely share copyrighted works. Before CC,
such activity was technically an infringement, because the the publication
of creative works requires consent of copyright holders. CC clears up that
technicality, which is great. But it has inadvertently given people the
impression that it has affected the licensing industry's pricing
structures.
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CC has not affected the greater licensing market (or prices), largely
because of risk: CC has no centralized authority to assure that content is
either submitted properly or used properly. Because it's so easy to
game the system on either side of the photo (the supplier or the user can
sue the other by luring them with a legally misleading scenario), the
financial liability for anyone with a lot to lose is simply too high,
especially given that traditional license fees are so minimal. So, the
majority of image buyers simply stay away from CC.
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Now, this is not to suggest there's something wrong with the CC model in
principle. I'm a big advocate for it in all other contexts. Indeed, it was
born out of the "free software" meme that was popular in the 1980s and
90s, when Gnu Public License (GPL) and other models were the precursors to
the "open-source" model we still enjoy today. These are great innovations
in licensing because they allow intellectual property to be used for the
greater good, while also allowing for commercial use of those innovations.
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But CC in the world of engineering is entirely different from photography.
Engineering takes a considerable amount of time, resources and (usually)
teamwork to produce anything of value that those in the open-source
community would use. As such, the kind of content there is proportionally
minimal, and each work is substantial and recognizable, making
infringements quite easy to spot.
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None of this is true in photography—trillions of images are produced
daily, it's impossible to track any given photo, or whether it is
"legitimate" (either by the owner or the user).
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So, sure, in a world of honest people that want to freely share their
content in a peaceful corner of the image licensing market, CC is great.
The CC market is growing, but the perception is only as a measurement of
itself, not the total licensing market. An article on that topic can be
found here.
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Lastly, it's natural to ask, "If CC is so easy to game, why haven't we
seen it?" The answer is because the market is so negligible. Economists
often use crime data as a reality check on the economic activity they
think they're aware of. The higher the crime rate, the more economic
activity there is, and there's usually parity between that activity and
the presumed size of a commodity's market. If there's little crime, the
market size isn't big enough to warrant the effort. If CC were to
genuinely gain momentum, it would attract those who would game the system
for profit, which itself would have a cooling effect, bringing its
popularity back down.
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For the record, I've proposed that the best way to assuage people's risk
concerns about CC is to use the "copyright registration" system. The CC
foundation should have a submission system where those who want to submit
images for CC licensing would bulk register those images to the copyright
office. This gives them the right to file claims on behalf of the
copyright owner, which is how major stock agencies like Getty work.
Registered images are eligible for higher level of copyright protection,
and there are federal penalties for fraudulent use. This means that users of CC images can be protected from
invalid claims by those trying to game the system because this is built
into the copyright act's provisions. Similarly, authors can be assured of CC compliance
because non-compliant users could be subject to an infringement claim.
Yes, you can sue someone for copyright infringement, even if the license
fee were zero, because the infringement is another form of "breach of
contract." Here, the user of a CC image agreed to the terms of CC by (for
example) citing copyright ownership. Failing to do so is an infringement
of that contract, and is therefore subject to the statutes provided by
copyright law.
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This would not only allow CC to have actual teeth, but the trust would go
up as the risk comes down.
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But such an infrastructure would be quite expensive to operate. That'd be
a tall order just to create a system that brings the license fee for a
commodity down only a few dollars, even if it is only to zero.
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