Is Creative Commons a Rights Grab?

Leslie Burns, a creative/marketing consultant to commercial photographers wrote a lengthy post on her blog about the American Society of Media Photographers’ (ASMP) recent “interactions” with Lawrence Lessig, the founder of Creative Commons author of several books on the Free Culture movement.

The ASMP is an organization she is close with, and she stresses that she still feels it to be a great organization with good people, she feels that their involvement with Lessig, who spoke at a recent ASMP event, is dangerous and that Lessig needs to be “ignored/silenced as much as possible” as he has “done more harm to small creative businesses than any other single human in the US”.

This viewpoint was punctuated by a commenter to the post, Don Giannatti, who described Creative Commons as a “thinly veiled rights grab”.

This post is just the most recent example I’ve seen of the hostility toward Creative Commons in many creative communities. However, it is a hostility that I don’t fully understand.

Yes, freely available works have hurt many freelance and small artists, I understand this well, but Creative Commons did not create this problem, much of this is simply due to the Internet itself and would still be a problem even if CC disappeared tomorrow. In fact, without the licensing structure of Creative Commons, the problem could be much worse.

While I’m not saying that CC has been a great thing freelance artists, at least those with business models that don’t work with it, it isn’t the pariah that many have made it out to be either. The truth is much more humble than that.

A Strange Rights Grab

The thing about Creative Commons is that it is completely opt-in. If artists and content creators did not want their works licensed under a CC they simply had to do nothing and default copyright would apply. Even though Creative Commons is not for everyone, perhaps not even most, it is clear that many artists, of all types, do want their works licensed under less restrictive terms.

In fact, this behavior was going on well before Creative Commons. But rather than having formal, proper licenses for their content they were simply adding footnotes to their work saying things like “You are free to copy my work so long as you give a link back”, for example. Some were even going so far as to dedicate their works to the public domain.

These licenses are flat out dangerous as homebrew licenses by those without knowledge of copyright issues are, almost universally, flawed and can either fail to achieve their goal or give away more rights than intended.

The Creative Commons organization saw a need and filled it. Group A wanted to share their work, Group B wanted to be able to use shared work, but the law was in the way. The CC Organization created a series of licenses to act as a bridge between them. However, these two groups existed before CC and would exist after it disappeared and they would still find ways around the obstacles created by the law, they would just lack a pretty, easily understood tool to do it.

That, in turn, would create new problems including greater copyright confusion, poorly written licenses that give away additional rights and legal uncertainty for all involved. This type of climate would further taint the copyright pool and that would, in turn, hurt all copyright holders, CC or not.

However, what is truly confusing is how Creative Commons is a rights grab. It’s hard to “grab” rights that are freely offered and it is even unclear who is doing the grabbing. Some point the finger to corporations but I rarely see corporations using CC photos and, when they do and it makes the news, it’s usually because of a non-copyright-related disaster.

Corporations have been shy about CC licensing, largely due to the strict attribution requirements. They can afford the small amount required to properly license stock content and do so. However, smaller Web sites have been grateful, preferring CC-licensed images over paid content to make ends meet in their thin budgets.

It’s Not Just CC

Though it is true that Creative Commons is the most popular means of legally sharing free content on the Web, it is far from the only. Sxc.hu, for example, is a free stock photo site that is both immensely popular and doesn’t use CC licensing at all. There’s also a slew of free article Web sites, such as Articlesbase, that do the same thing with text content, once again without CC licensing.

These aren’t sites that are part of the “Free Culture” movement by any stretch. Much of the content is submitted by professional writers and photographers hoping generate some free promotion for their paid work, but they fill much the same gap.

So while some blame CC for being the worst thing to happen to smaller artists in generations, much of the problem seems to be attributed not to CC, but to the Web at large.

After all, the Web has given countless casual artists a voice and a broad audience. Many of these artists feel little need to commercially exploit their work and, instead, are just happy to let others use it with certain restrictions. Those desired restrictions vary from person to person, thus why CC created six different licenses, but the idea remains the same, there are certain uses of their work many people are not interested in compensation for and, often, wish to actively encourage.

In short, Creative Commons didn’t “create” the legions of free content available, but rather, just made it easier to search for and license correctly.

CC As a Lightning Rod

In reading the comments, much of the backlash against CC is really more directed at Lessig and the larger free culture movement.

I’m the first to admit that I don’t agree with everything Lessig has said, his favoring of copyright formalities being one my biggest sticking points, but there are others who are far, far more extremist than Lessig on copyright issues.

Lessig has always considered himself a supporter of intellectual property, and backs this up in his writing, but he favors reforms to the current system. However, where Lessig still believes in copyright, there are others who don’t believe copyright should exist at all or that copying should never be against the law, under virtually any circumstance.

The problem is pretty simple. The copyright wars have been divided sharply into two camps. The freedom-stomping content creators and corporations who don’t understand the Internet and the thieving pirates who don’t want to pay for anything, or so that’s what you read on the relative sites.

Copyright centrists, whether right or left leaning, get lumped into one of those two camps and it seems many have thrown Creative Commons in with the pirates. This is unfortunate as it stifles much of the legitimate copyright debate and only sharpens the divide between the two sides, making compromise even more difficult.

We saw this a great deal in Andrew Keen’s book, where he frequently considered Lessig a copyright abolitionist, and it is a common mentality of others on the Web.

However, this lumping makes Creative Commons an excellent lightning rod. A publicly acceptable and “hip” face of the “pirate” movement. It’s an easy target though one that is often misunderstood.

Bottom Line

In the end, the ASMP was taking a very bold, but necessary step in inviting Lessig to speak. Serious dialoge about copyright is urgent if the situation online is going to get any better. Everyone has to listen with open minds and think of real solutions.

There is no magic bullet, no easy way out. Any real answer is going to be messy and involve sacrifice. However, these are issues that can be solved.

But for that to happen, we have to stop seeing copyright as a black and white issue and look at it as a shades of gray issue. There are no two sides, but many sides and almost everyone, most likely, has at least some of the answer.

Until we start comparing notes with open ears, I don’t think we’ll ever find the real solution.