On Techdirt, Creative Commons, & the Public Domain

Mike Masnick has yet another post on Techdirt lamenting how, in his view, “the public domain is in trouble.” How do we know this? Because it “requires a 52-page handbook to determine if something is public domain.” Yes, “requires,” and that just “seems… wrong.” The lamentably-long handbook in question, entitled “Is it in the Public Domain?”, was created by the Samuelson Clinic at Berkeley Law, and it’s used to determine the copyright status of works created in the United States.

The handbook itself is copyrighted—though there is no copyright notice. There is instead notice of a Creative Commons license: “This Handbook is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.” The Clinic is able to license the handbook in this way because it’s protected by copyright; copyright is the engine that makes Creative Commons licenses work.

I think Creative Commons licenses are great. They’re simple, versatile, and powerful tools for rightholders who want to share their works—and let others share them as well—subject to certain conditions imposed on licensees. Here’s the heart of the Clinic’s license grant for the handbook:

Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to: A. reproduce and Share the Licensed Material, in whole or in part; and B. produce and reproduce, but not Share, Adapted Material.

How cool is that? The Clinic retains title to the copyright while irrevocably granting members of the public the privilege to “reproduce and Share” the handbook, whether “in whole or in part.” “Share” is defined broadly to encompass three other rights under Section 106, namely, public distribution, display, and performance. And when it comes to the right to prepare derivative works, the license permits private remixing so long as it’s not shared publicly. That’s what “NoDerivatives” means.

The Clinic doesn’t just stop there—it flexes more of its copyright muscle by making the license “non-sublicensable,” meaning, it grants the license to “You,” but “You” then have no power to grant a license to someone else. Other people have to get their licenses directly from the Clinic, though the license itself dictates that this occurs automatically downstream: “Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License.”

The “conditions” of the license are where things get really cool. The license has five conditions, all related to attribution. Anyone sharing the handbook “must”: (1) retain whatever authorship, copyright, license, disclaimer, or URI/hyperlink information the Clinic originally supplied with the handbook, (2) “indicate if You modified the Licensed Material,” (3) “retain an indication of any previous modifications,” (4) “indicate the Licensed Material is licensed under this Public License,” and (5) “include the text of, or the URI or hyperlink to, this Public License.”

Each and every one of these conditions must be met by a would-be licensee or else there is no privilege to use the handbook under the license grant. According to the license, “if You fail to comply with this Public License, then Your rights under this Public License terminate automatically.” And this is the clout that copyright provides. The Clinic could have simply dedicated the handbook to the public domain, but such a dedication would have deprived it of control over derivatives and attributions. This is control the Clinic clearly wants to have—and does have, because of copyright.

Its flexible opt-out protections, combined with the enforceability of unilateral conditions—such as the five employed by the Clinic here—make copyright an incredibly potent tool for authors. Copyright isn’t just about incentivizing authors to create; it’s also about giving them control over their works once they’ve been created. The author can choose to dedicate the work to the public domain, to reserve all rights in it, or to do anything in between. The author can even unilaterally grant use-privileges subject to certain conditions of attribution, as the Clinic has done here.

Copyright—like Creative Commons licenses—recognizes that authors get to decide where, how, and when to share their works. It’s not that we’ve “sidelined the public domain,” creating “permission culture instead,” as Masnick puts it. It’s that we respect the decisions authors make with respect to their works—works such as the Clinic’s handbook, which Masnick clearly values: “[I]t’s great to see that the folks over at the Samuelson Clinic at Berkeley have developed a detailed handbook to determine what is in the public domain.” Masnick likes the handbook so much that he embedded it, and one of its graphics, in his post.

But in his haste to disseminate the work-product of others, Masnick forgot about one thing—the author. The Creative Commons license granted by the Clinic includes not only use-privileges, which Masnick was eager to exercise, but also conditions, which he appears to have ignored. For example, the license requires that he “indicate the Licensed Material is licensed under this Public License,” and that he “include the text of, or the URI or hyperlink to, this Public License.” While Masnick explicitly claims to have embedded the Clinic’s handbook “based on their Creative Commons license,” he neither identifies “this Public License” nor provides its text, URI, or hyperlink. A simple “licensed under CC BY-ND 4.0” would have sufficed.

It’s not exactly fair to single out Masnick for this omission—I’m sure this sort of thing happens all of the time, even with sophisticated users. But the fact that Masnick is sophisticated makes it particularly troublesome, and it reflects the apathetic “me culture” movement that he in no small way represents. Unfortunately, those who partake of the “sacrament” of Ctrl-C/Ctrl-V don’t like to think about where those works come from—or more to the point, who those works come from. The inconvenient truth that authors invest time, energy, money, and soul into their works falls on willfully-deaf ears. And that’s really a shame, because respecting the rights of authors—including those who utilize Creative Commons licenses—is incredibly easy to do.

Special thanks to Terry Hart for his valuable feedback in drafting this post.

Follow me on Twitter: @devlinhartline

© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

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