20 years of Creative Commons licences: key legal considerations and best practice

Creative Commons, the US-based non-profit organisation which has developed a scheme for freely licensing copyright, recently celebrated its twentieth year. While Creative Commons is not the only scheme which facilitates open content licensing, it is by far the most commonplace today. In this article, Owen O’Rorke and Ethan Ezra set out some “best practice” points when encountering these licences and examine the history, strengths, and critiques of the scheme.

Best practice

As discussed in the more in-depth sections below, Creative Commons licences are now a staple feature of the contemporary exploitation and distribution of creative works (especially within the online sphere). There are a handful of key pointers which are useful to bear in mind when dealing with these ubiquitous licences:

• Know your licence: for licensors, this should involve carefully considering the core features of each licence versus how you intend your work to be distributed. Each licence is different and will have varying effects on how the work can be shared, commercially exploited, credited, and adapted. For licensees, avoid the all-too-common mistake of viewing the CC logo as carte blanche to treat the work as your own, and instead closely review how the licence impacts your plans for exploiting the work.
• Know your work: for licensors, you should be specific in terms of the works you are actually licensing and avoid slapping a CC licence / logo across a mixed-media collection: firstly, because you may not own the rights in some of those works, and secondly because it creates confusion and legal uncertainty in terms of which works are licensed out. Licensees should remember that the licences do not contain any licensor warranties as to good title to the underlying work: make sure to carry out due diligence before relying on a licence.
• Commercial exploitation: as alluded to above, licensors should be careful to choose an appropriate licence which will either restrict or permit third party commercial exploitation, as required. There is also the option of CC-licensing a more basic form of the work, but marketing and selling the more refined work separately. Licensees will need to be alert to these frameworks too.
• Ending a licence: each licence states that the licensee’s rights will terminate if they breach the licence. Licensors should consider how best to enforce this in the event of a breach. This will likely involve communicating the breach, takedown notices, and (if required) separate legal advice. Licensees should pay heed to any such proceedings: it would probably not be in your interest to dispute to the validity of the licence either, as you would then be infringing the owner’s copyright (without the protection of a generous licence).

The story so far

Creative Commons started as a kind of protest. Its founders viewed the existing framework of copyright law, which afforded sweeping protections and exclusive rights to authors of creative works, as increasingly anachronistic. They advocated instead for a permissive space which enabled people to freely use and distribute creative materials.

There were a few cultural catalysts behind this initiative. They included: (i) the rise of the internet, which promoted the open sharing of creative works, (ii) the associated difficulty and expense in securing permission to use copyrighted works via conventional means, and (iii) an increased frustration at the growing statutory protections afforded to copyright owners, for example, the US Congress’ repeated extensions of the lifetimes of copyrighted works under lobbying from wealthy rights holders (wryly termed “Mickey Mouse Protection Acts” by critics).

Creative Commons has attempted to shift the legal landscape by providing a series of free-to-use licences which enable creators to distribute their work whilst retaining some basic rights of authorship. The licences vary in terms of whether licensees can modify the work, provide a credit line for the original author, use the work commercially, and impose their own contractual terms to onward users of the work. Overall, these licences are lenient, favourable to non-owners, and generally user-friendly. Each licence has its own identifiable logo which can be pinned to online works and a “Commons Deed” which is a short form summary of the key legal provisions.

The project has proven revolutionary and there are now billions of works relying on Creative Commons licensing, largely in the online space, with particular interest in sectors such as art and academia. Nonetheless, the scheme has not been without its detractors. Creative industry traditionalists, legal commentators, and IP specialists have all scrutinised the value and utility of these licences. Countless academic articles can now be found on the subject: many of which are published and disseminated, naturally enough, using CC licences.

A copyright revolution?

One of the curiosities of Creative Commons licensing is that despite its founders’ general antipathy towards the overly protectionist framework of copyright law, the scheme is not an alternative to copyright. Indeed, it relies on the strictures of copyright rules: it is simply a way of distributing those rights protected by copyright (such as sharing and adaptation) through contractual means.

Creative Commons were initially loath to embrace the enemy in this way. Early critics of the scheme pointed out its slightly liberal use of the concept of “public domain”, referring to the body of creative works which attract no copyright protection whatsoever (typically because they are too old). The scheme even had a “Dedication” that it would facilitate the increased flow of works into the public domain. However, this has proven rather challenging, and many legal systems (including English law) do not readily provide a means for someone to fully extinguish copyright in a work[1].

Despite these lofty ambitions, Creative Commons is more akin to an alternative landscape in which copyrighted works are distributed via permissive licences: without the belt-and-braces protections and strictures on use which commercial rights holders tend to place on licensees.

From a copyright law perspective, other critiques have focused on the fact that Creative Commons has given rise to frequent abuse of the “copyright” label. Common examples include internet users who affix the Creative Commons logos to works which do not even cross the threshold of copyright protection, or creators who lazily state that they are relying on a Creative Commons licence without having carried out the basic due diligence into how the work (eg a photo or video clip) was originally distributed. One cannot simply impose Creative Commons principles on existing copyright works: it has to begin with the rights holder, and is passed down the chain of licensees.

Creative Commons has been a copyright headache for industry conservatives too. For example, music collecting societies have typically been reluctant to allow members to freely release their works under Creative Commons licences due to the impact this may have on accruing royalties. Similarly, Sanctuary, a short Australian film which was one of the first productions to use Creative Commons licensing terms, faced issues recruiting professional performers due to the national actors’ union’s opposition based on financial, reputational, and artistic fears.

While these critiques are not irrelevant, for supporters of the initiatives they do not outweigh the overwhelmingly positive feature of the scheme in facilitating a mass-proliferation of free-to-use creative works. Creative Commons has even been dubbed the “sine qua non precondition of a successful model of creating, distributing and modifying copyrighted works within the environment of the universal World Wide Web”[2]. Furthermore, it has enabled lay creators to better utilise creative materials without negotiating the notoriously complex minefield of traditional copyright law[3]. A range of popular platforms, from Wikipedia, to Flickr, to the UK government’s own data archives all make use of these licences. Similarly, in academia, publishers and researchers have developed the “open access” journal / article distribution model often using Creative Commons licences. This has significantly boosted readership, subscriptions and peer-review models[4].

Contracts and courts

Aside from the copyright law issues, the licences have come under scrutiny from a contract law perspective:

• Offer and acceptance: each licence contains a notice stating that by exercising the licensed rights, the user agrees to be bound by the licence. While English law provides that someone can accept a contractual offer via their informed conduct (in this case, making use of the licensed material), this must be done so with the intention of accepting the offer. If creators do not sufficiently bring the licence to users’ attention (as is often the case online) then it is unlikely that users are bound by the Creative Commons licence terms.
• Incorporation: the related question is whether the specific terms of the Creative Commons licence (usually referred to via a link to a separate webpage) are incorporated into a contract between creators and users. However, in the famous Dutch case of Curry v Audax [5], the Defendant made use of the Claimant’s photos on Flickr without adhering to the webpage-linked CC terms. The court ruled that the terms had been properly incorporated and that the Defendant ought to have carried out a “thorough and precise examination” of the terms.
• Onward recipients: The licences state that the licensor provides an automatic offer to any onward user of the work to exercise the various licensed rights under the same terms and conditions as the licence. Under English law, it is unclear whether this amounts to a concrete obligation on the part of the licensor and how a third-party user could enforce this. Some have suggested relying on the Contracts (Rights of Third Parties) Act 1999.
• Warranties: the licences contain a comprehensive disclaimer of any warranties regarding the licensed work (eg on title, IP infringement, ownership). There is also a sweeping exclusion of licensor’s liability.
• Commercial use: some of the licences prohibit using licensed material for “commercial purposes”. While Creative Commons have clarified that this relates to “commercial advantage or monetary compensation”, the term has attracted criticism for its ambiguity.
• Termination: failure to comply with the licences means that they “terminate automatically”. Both legally and practically this clause has proven troublesome: there is an argument that under English contract law the licensor would still need to provide notice that the contract has been terminated. Is that feasible when you cannot even track down the online licensee?

The future is bright

Despite these contract and IP law conundrums, the licences have proven impressively resilient and popular. While the English courts have never properly stress-tested the validity of these licences, other jurisdictions (including the US and EU) have consistently upheld the Creative Commons framework. Most importantly, Creative Commons is seen as a user-friendly contractual tool that safeguards the basic rights of millions of online (and offline) amateur creators[6]. For many, the fact that these licences allow their works to be freely shared and adapted whilst guaranteeing a satisfactory credit line is great news, and it keeps the more restrictive, traditional realm of copyright lifespans, fair dealing, and royalties at bay.

Perhaps the best illustration of this is nicStage, a user who uploaded a catchy sound clip to the website Freesound under a CC licence. nicStage later discovered that the sound had been sampled by the Prodigy in their chart-topping track “Invaders Must Die”. nicStage wrote to their manager noting that the clip had not been properly attributed under the licence terms: “As I said, I am not at all upset about this. I'm somewhat honoured…(but) I am more concerned about third party sample retailers / distributors lifting samples from freesound.org and stripping the Creative Commons license”. The band’s manager wrote back, affirmed nicStage’s viewpoint and even offered a credit line in future artwork, a noteworthy coup for CC licensors.

Footnotes:

[1] See: Corbett, S. (2011), “Creative Commons Licences, the Copyright Regime and the Online Community: Is there a Fatal Disconnect?”, The Modern Law Review 74(4).

[2] Koscik, M. & Savelka, J. (2013), “Dangers of Over-Enthusiasm in Licensing under Creative Commons”, Masaryk University Journal of Law and Technology 7(2).

[3] Kreutzer, T. (2011), “User-Related Assets and Drawbacks of Open Content Licensing”, in L. Guibault (ed.), Open Content Licensing: From Theory to Practice.

[4] Copinger and Skone James on Copyright [26-18].

[5] Curry v Audax Publishing BV (Case no 334492/KG 06-176 SR [2006] ECDR 22 (District Court of Amsterdam))

[6] See: Scharf, N. (2017), “Creative Commonsense? An analysis of tensions between Copyright Law and Creative Commons”, Journal of Intellectual Property Law and Practice 12(5). 

If you require further information about anything covered in this article, please contact Owen O'Rorke, Ethan Ezra or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law as at the date of publication. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2023