Creative Commons and open content

by Rowan Wilson and Scott Wilson on 20 July 2005 , last updated

Introduction

Creative Commons (CC) licensing is a subject that crops up with increasing frequency, particularly in discussions of open educational resources (OER) and their dissemination on the web. This document describes features of the Creative Commons project and tries to identify how it might be used by UK further and higher education institutions.

Beginnings

Creative Commons was founded in 2001 by Professor Lawrence Lessig of Stanford University, with the help of a grant from the Center for the Public Domain (CPD), a charity which was set up to campaign for reform of intellectual property regimes. They argue that, as legal protection for intellectual property has become stronger and more widely enforced, so the amount of freely available material has diminished, and that this is a brake on creativity and research. They aim to restock this intellectual commons. The Creative Commons tries to further this aim by borrowing some well-established concepts from the world of open source software.

Open source software licences rely on copyright law to achieve their effect. Copyright is maintained by the author, while others are permitted to copy the software, modify its source code and distribute modified versions (as long as they do so under the conditions defined in the licence). The intention behind this form of licensing is to promote further development and use of the software. It also has the beneficial side effect of promoting the skill of the programmer in question.

These outcomes are very similar to the kind of benevolent effects that the pool of material in the public domain had always provided. Folk musicians have always respun old tunes for new ages, and Shakespeare adapted European folk-tales and legends to create his plays. It is easy to see why the CPD was prepared to fund a project like Creative Commons, whose intention was to widen open source licensing concepts to cover all forms of music, visual art, video, scientific data - in short, all forms of content - and to facilitate their free exchange and adaptation without breaching the original creators’ copyright.

The licences

There are many forms of open source licence. Over 70 have been drafted, reflecting the subtly different aims and concerns of their creators. Naturally, this rich selection can be a little confusing to programmers who are looking to release their work as open source.

Lessig and his companions had the advantage of starting with a clean slate, and thus they were able to pick and choose the features that their licences should incorporate. In this way, it was hoped, some of the confusion surrounding the wide variety of open source licences could be avoided. The Creative Commons lawyers settled upon two core issues borrowed from open source licensing - commercial use and adaptation.

A creator looking to release a piece of their work under a Creative Commons licence has to answer two basic questions:

  • Do you want others to be able to sell your work?
  • Do you want others to be able to adapt your work?

The answer to the first question is a simple yes or no. The second question is slightly more complex. Here, as well as yes and no, the creator can also say yes, but… - specifically yes, but I want any adaptations to be released under this same licence. This stipulation, called Sharealike by Creative Commons, is the direct equivalent of the open source concept known as copyleft, as embodied in, for example, the GNU General Public License. The aim of this slightly tricky condition is to encourage others to adapt and augment your work, while stopping them from taking the result out of the commons. After all, once someone has finished producing a classical arrangement of your techno track, you may want to sample that for your next video art project. Insisting that all adaptations (or derivatives) are licensed under the same licence that you originally chose means that this will always remain possible.

When the creator has answered these two questions, they will have chosen one of Creative Commons’ six licences. They are listed below:

  • Attribution Non-commercial No Derivatives
  • Attribution Non-commercial Share Alike
  • Attribution Non-commercial
  • Attribution Share Alike
  • Attribution No Derivatives
  • Attribution

Note that the requirement to credit the original creator is common to all these licences.

Creative Commons released the first versions of these licences in late 2002, via their website, http://creativecommons.org, along with a web application that asked the questions mentioned above, and directed the user to their chosen licence depending on their answers. They also developed short, friendly descriptions of each licence for non-lawyers, as well as a series of symbols that encapsulated each licence’s features. If you wanted to CC-license your work, you could place these symbols on your web page that linked to the file, and thus provide a simple visual guide to what could be done with your work. To finish the effect, and in neat summary of the entire project, they also provided an additional image to place on your page, featuring the Creative Commons logo and the legend: Some Rights Reserved.

Creative Commons licences and Free Cultural Works

Some, but not all, of the Creative Commons licences qualify as Free Culture Licenses according to the Definition of Free Cultural Works. The Free Cultural Works definition applies the principles of Free Software to content, a consequence of which is that the No Derivatives and Non-Commercial licences offered by Creative Commons do not fall within the definition.

The visual presentation of the licence, although important, is not the only aspect that the Creative Commons project has attended to. Although there is nothing integrally digital about the concept of CC licensing, it is clear that the digital realm, and the Internet in particular, is where most CC-licensed material is going to be obtained. Given this fact, it seems vital that the way a piece of work is licensed can be expressed in a machine-readable form.

The primary way that Creative Commons achieves this is to use the variety of XML known as RDF or Resource Description Framework. When a creator uses the Creative Commons web application to obtain an appropriate licence, they are given a snippet of XML to insert into their web page. This information can be read by search engines, and gathered to create a list of sites that offer material under certain CC licences. Yahoo was the first search engine to offer a CC-specific search facility, although now Google offers this too. There are also specific search engines for music, photographs, video, etc.

Every Creative Commons licence has three representations (of one and the same licence): a deed, which contains a plain language explanation of the licence’s intention (along with the handy symbols), the full lawyer-drafted licence, and a machine-readable metadata snippet.

Other projects

Creative Commons also provides a selection of other licences. For example, the Creative Commons CC0 - described as ‘no rights reserved’ - handles the case in which a creator wishes to explicitly give up their ownership of a piece of work so that it may be used without complication by anyone for anything. The open source software licences known as the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL) and the BSD License also exist in a Creative Commons-wrapped form (the legal text of these licences remains completely unaltered, but they are accompanied by a corresponding CC deed and metadata snippet).

In addition to these licences, Creative Commons launched an extremely ambitious project in early 2005, known as Science Commons, http://sciencecommons.org/. Science Commons, of which there are now sub-projects including Health Commons, aims to investigate the current intellectual property status of scientific data. CC is concerned that, with increased pressure on universities to fund themselves through the commercialisation of their scientific research, there has been a gradual erosion of the basic principles of the free distribution of datasets and aims to address this.

Around the world

Creative Commons began as an American project. The initial licences that the project produced were all written to accord with US law. But the desire to have clear open content licences extends well beyond the USA. Soon requests for regionalised versions of the licences were being widely voiced. On the face of it, this was a very reasonable request. Still, there were issues with it.

Firstly, the work involved would be gigantic. Secondly, it would produce a swathe of regionalised licences that would all have to do exactly the same thing. Making sure that they actually did the same thing would be immensely difficult, given the variations in copyright law around the world. It is for this reason that open source software licences like the GPL are not regionalised: the uncertainty of interpreting a US-drafted licence in foreign jurisdictions was felt to be less risky than creating a set of regionalised licences that may or may not be identical legally, and could be attacked individually in their respective regions. Far better to have just one licence, and thus have a large and international interest group of licensors who would all fight to oppose an attack in any jurisdiction.

Despite these difficulties, groups of lawyers in many jurisdictions worked to generate regionalised versions of the licences. Many of these have now been completed, and can be selected at the CC website as alternatives to the US generic legal code. Of course, the CC deed and the metadata remain essentially unchanged - it is only the legal expression of the licence that is regionalised.

The UK is one of many nations that has gone down the regionalisation route. UK regionalisation has not kept up with releases from the core Creative Commons project. While version 3 is the most recent global version, England and Wales regionalisation remains at version 2, and Scottish regionalisation at 2.5. Preparations for version 4 are now underway, with a final draft published in September 2013.

Who uses Creative Commons?

Many individuals and organisations have already made use of the Creative Commons licences. Organisations such as OpenContent in the USA have been promoting the release of educational materials under open licences since the late 1990s. OpenContent had even produced their own Open Publication License. Educational establishments such as the University of Oxford, Massachusetts Institute of Technology (MIT), Carnegie Mellon University and the UK Open University have released learning materials under Creative Commons licences.

How can I use CC?

More and more material is becoming available under CC licences. Much of this material is potentially suitable for building into learning materials, both digital and analogue. Whereas in the past a teacher might have grabbed an image from the web and include it in some material without fully knowing whether they were legally permitted to do so, Creative Commons provides a way of obtaining such material in a codified and legal manner. This in turn makes the reuse and archiving of the learning materials as a whole much easier and more worry-free.

This is not just limited to images and text; for example, the University of Oxford has released thousands of podcasts audio and video recordings of lectures available under Creative Commons licences, enabling the recordings to be incorporated into courses around the world.

As mentioned above, fully realised learning materials have also been made available by some institutions. The OpenCourseWare Consortium, a collection of courses available to learners throughout the world, illustrates how Creative Commons can benefit the global academic community.

The other side of the coin - publishing your own material under a CC licence - is relatively simple. However, there is a simple caveat. Although it might seem obvious, it is worth stressing that in order to license a piece of work, you must actually own it. Most employees will not own the creative work that they generate at work; it will belong to their employer. Although an employer may be happy for a teacher or research officer to use materials that have been made available by others under a CC licence, it should not be assumed that this means they will be happy to have their own resultant works published in the same way. An employee must get overt permission from their employer before releasing their work. This remains true even if the work contains some bits and pieces obtained under a CC licence. Just because you have used an image that is licensed as Sharealike, it does not mean that you must release your work under a CC licence. Your work can be used internally within your employer’s establishment and never be released at all. However, if it is released to others outside the establishment, the Sharealike condition comes into force and a CC Sharealike licence must be used. Early consultation with your employer will ensure that these problems do not arise, and that the full benefit of the use of CC materials can be had without untoward legal problems.

The Creative Commons website [http://creativecommons.org/] provides an easy portal to obtaining and releasing CC licensed material, and also points users to other projects, like the Internet Archive, which can help with hosting CC materials on the web.

Should I use Creative Commons for Software?

Creative Commons themselves state that CC licences should not be used for software and recommend using licences approved by the Free Software Foundation and the Open Source Initiative.

One reason is that CC licences do not make any distinction between source and object; while this is fine for most simple content resources, for software to be considered as either Free Software or Open Source, access to source code is an essential requirement. In some cases software has been released under a Creative Commons licence but with no access to source code; this does not fall within the definition of either Free Software or Open Source, but could be described as perhaps “gratis” or “freeware” instead.

A second reason is that CC licences are not compatible with the GPL, and any CC licences involving the ND and NC clauses are incompatible with any Free Software or Open Source licence.

It may be tempting to select an Creative Commons licence for software on the grounds that the range of software licences is quite extensive and possibly confusing. However, this is likely to cause more problems than it will solve.

While CC licences are generally not compatible with Free Software and Open Source licences for combining code, another consideration is where software is combined with content.

For example, you may have a software project ditributed under the GPL that uses a set of icons that are distributed under CC-BY. In general this is not a problem in terms of licensing, but you should be careful to document where CC-licensed content is distributed with your source code, for example in the NOTICE or README file.

Distributing software which contains content licensed using a NC or ND clause is most likely to cause confusion and should be avoided where possible; for example you may want to offer users the facility to download such assets separately from the source code.

Further reading

Links:

Related information from OSS Watch: