Draft: Contemplating Licensing

When I last wrote about the Creative Commons licenses, I did not go so far as to talk about the sorts of factors that might guide people in making licensing decisions. Here, for your comment, is a draft with some ideas I've sketched out. Right now I've got four categories of considerations. Can you recommend others that I might include? Please note that I'm trying to talk about the factors people consider without myself passing judgment on their merit or appropriateness. That is, I do not want to take the angle, "You should value this consideration and therefore should decide for/against the license." I only want to say, "You might want to ask yourself whether and how much this concept or issue matters to you, because it might affect your decision."

I'll be out of town tonight and tomorrow, but I'll respond to comments on Sunday afternoon.

People make copyright licensing decisions in different ways for different reasons. Only the author can make the final assessment of whom to give permission to copy, display, or perform the author's work and for what reasons. I can only talk in broad terms about some of the reasons people might or might not choose to license works under a Creative Commons license. However, I don't want readers to get the impression that I'm saying that certain categories of people with certain interests should choose a certain license. All I want to do here is to talk about some of the factors authors might weigh against each other, in order to spur the imaginations of readers. If you use this for anything at all, use it as a starting place and not an ending place for your thoughts about licensing.

Let's start by remembering the starting position of licensing: people may not make copies of copyrighted material without permission from the person who holds the copyright. When you publish material on the web, you offer an "implied license" for me to download a copy and display it on my computer screen -- why else would you put it on the internet? -- but you don't give me permission to do anything else with it. Now, why might you give people broader permission to copy and use your work? Why might you not?

Although fair use allows people to copy parts of what you say for the purposes of comment and criticism, you might want to make it clear to readers that you want them to copy all of what you say if they want to. It might mean much more for you to see your creativity passed around from person to person than it would mean to hold out in hopes of obtaining money from a commercial publisher for a more limited, controlled release. The Creative Commons licenses are designed to allow an author to offer his or her works for people to pass around as much as they like, as long as they follow certain rules.

For example, suppose that I have an essay that I'm happy to have people passing around. I only want to make sure that they identify me as the author, that they don't try to add to it or make their own changes to it, and that they don't make money off of the process (because in the unlikely case someone is going to make money off of this work, I want in on the deal). I may well find that the "Attribution-NoDerivs-Noncommercial" Creative Commons license fits very well with my goals. It lets them pass the work around while I retain the legal power to demand that they properly attribute it to me. If I have different goals or fewer concerns, a different Creative Commons license may better fulfill my goals.

Suppose, however, that I want to be able to require people to copy my work only from my own website, and I want to have the legal power to halt further copying if I decide to release a newer edition or retract the essay. First, let's keep in mind that fair use doctrine will still allow people to quote content from my essay, even if I can stop all further licensing of the work. But still, suppose I want to retain whatever control over distribution the law will give me. In that case, the Creative Commons licenses' propagation clause will frustrate my goals. For example, one substantial reason this article is not licensed under a Creative Commons license is that I'm still working on it -- and I may always be. I want to know and control where copies go so that when I rethink something and make major changes, there's less out of date or incorrect material floating around.

I may also want to limit who may use my work and for what purposes. Fpr example, if I am a photographer, I may be very pleased to find my photo displayed on a charitable organization's website, and much less pleased to find it displayed on the website of a racist organization. If I have licensed my photo to all comers for all non-profit purposes, both of these organizations may copy and display it. Only if I have retained the power to grant licenses to people on an individual basis will I be able to choose the charitable organization and exclude the racist one. Is this likely to happen to most people who release their work online? Probably not, but it's still something to consider.

Meanwhile, remember that even restrictive licensing will not prevent people from copying some of the material to the extent that it helps them comment on or criticize the work. Comment and criticism lies close to the heart of fair use. Fair use doctrine includes the idea that people may not copy more than they need in order to make their critical points, but within those vague limits, they will still be able to copy. Restrictive licensing will not allow anyone to "lock down" work against criticism. If someone publishes a scathing weblog entry that turns out to be a frightfully bad idea, fair use will almost certainly let me blockquote at least some (and probably only part) of that content in the context of commenting on it, even if the author decides to retract and delete the entry.

Some writers have chosen to apply the Creative Commons licenses to their webpages and/or weblogs because they believe that it best reflects the prevailing intellectual ethic in their academic community. A Creative Commons license makes it easier for others to copy interesting work and share it with others in the community. When the community places a high value on the sharing of ideas and expression, the Creative Commons license represents a positive gift to the community. Of course, it doesn't hurt in terms of reputational reward, either; the author may take advantage of easy word-of-mouth distribution while the community notices and appreciates it. Fair use doctrine facilitates some scholarly copying, but a Creative Commons license may bypass the question of fair use for many purposes.

Commercial publishers, including the publishers of most academic journals, want to be the first to publish the material they print. In many cases, they also want to be the last. In academic publishing circles, a lot of prestige can come from being first. Academic publishers also tend to demand the author's entire copyright, though they may license rights for certain uses back to the author as part of the copyright transfer agreement. Many academic journals -- especially in the sciences -- have taken to charging astonishingly high prices for print and digital editions. Publishers will not be eager to compete with a free Creative Commons licensed edition of the same article that anyone can download from the author's webpage (or from the webpage of anyone else who holds the Creative Commons license in the work).

Cory Doctorow recently released his novel Down and Out in the Magic Kingdom online under a Creative Commons license as well as in book form through a commercial publisher. We'll never really be able to tell exactly how this decision has affected book sales revenues for Doctorow and his publisher. However, it's almost certain that he dramatically increased the circulation of the book, at least over the short term. The decision also brought him -- to use his own terminology -- substantial amounts of 'whuffie,' reputational reward. The idea of 'whuffie' and discussions about reputational economics probably would not be nearly as popular in online circles if there were no online, Creative Commons licensed edition of Down and Out.

The publisher's requirements issue may be less significant for people who are only contemplating using the Creative Commons license for more casual publications like weblogs. The question may come up only if the author posts drafts of professional articles (or draft chapters of fictional work, or poems that he or she intends to publish, etc.) to the weblog. The topic will certainly come up, though, if the author wants to release the very same material online for free and in print for charge.

If the free online scholarship movement gains steam in the next several years, the face of academic publishing may also become much more friendly to Creative Commons licensing. Meanwhile, authors who depend on commercial publishers for academic reputation building or financial income should keep in mind the rights that their publishers are likely to demand.