Tuesday, September 20, 2016

The Farce of Creative Commons

Creative Commons is a well intentioned idea gone bad, and finally their existence will be put to the test, in a lawsuit brought that challenges the notion of what is "commercial" versus "noncommercial" use of an image.

Ars Technica reports, in "Creative Commons licenses under scrutiny—what does “noncommercial” mean?" (here, 9/18/16) that an educational company, Great Minds, is suing FedEx because their company (in the form of the former Kinkos that makes photo copies) is charging money for photocopies of this material. The basics are that "print shops, like FedEx, negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials for commercial purposes—i.e., their own profit—at the request of their customers."

Now, it would be one thing if FedEx had binders of the material in one corner of their stores and that if a customer took the binder to the front desk and paid just for the photocopies, you might be able to skirt the issue here, but that doesn't seem to be the issue. FedEx needs to be paid for things to be photocopied, so why not have things worth printing/photocopying available for free? but the question becomes one of defining "commercial" versus non-commercial.

(Continued after the Jump)

Commercial use is not easily defined. Selling a t-shirt with an image/graphic on it. Making a print and selling the print. Using the photograph in an ad for an organization.But what about  Using an image in a blog? Using an image in social media?

Frankly, all of the above could be argued either way by a skilled attorney.

The Creative Commons wiki notes (here)  NonCommercial turns on the use, not the identity of the re-user. So a high school student and a multi-national corporation like Nike are equal. The definition of NonCommercial depends on the primary purpose for which the work is used, not on the category or class of reuser. So if Nike was printing t-shirts with a CC-licensed image/graphic on it, provided they were not charging a fee for the t-shirt and giving it away for free , it could be considered non-commercial. But there would be significant value in Nike doing this - they give away t-shirts all the time because people become walking billboards for their brand, so there is a commercial value to them doing so, even if the shirt is given away for free.

What about a cc-licensed photo of a skateboarder doing a trick? It could be printed and handed out for free at skate parks as the skateboarder, sponsored by Nike, goes on a tour promoting Nike as cool and hip. It's a free print, but there is value to the skateboarder and Nike in doing this.  How about a frame shop giving away free prints to people who pay the frame shop to frame the photograph? It's clear the print is free, but the frame shop makes a good profit from all the framing they sell.

In the above examples, the CC element notes "“NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.”"

Here the "commercial advantage" element could easily apply. Consider this case - using photos on a blog - but does the blog sell ad space? Even so, does the blog owner earn money from writing the blog post that the photo is used in, or gain notoriety they exploit elsewhere for compensation? In these cases, the "primarily" applies, but still, it's a commercial use.

Even if the blog post were for a non-profit dedicated to eradicating a disease or the suffering of others, it's still possibly commercial. Someone is going to monetarily benefit. Consider the charity that promotes the inclusion of cancer medications for children in various insurance plans - seems like an altruistic thing to do, as many children are dying from cancers because medication can't be prescribed to them like they are for adults. Yet, when you find out that the organization funding the efforts to make this happen are the pharmaceutical companies that stand to make hundreds of millions of dollars because now insurance must cover their brands of medication, is it commercial now?

What about social media? If a brand is instagramming images out and the feed is free, is there commercial advantage? Sure - the person doing the posting/curating of the images being posted is getting paid and doesn't have to commission artists to create content nor to license them from rights-managed libraries, and instead can just mine the millions of CC images from Flickr. They are getting paid to curate, and the Instagram feed is benefiting from being a cool/cutting-edge organization that then can intersperse advertising in other posts adjacent to that, or after building a critical mass of followers from CC content, switch to paid content/advertising.

I think most people would agree that non-commercial comes into play when a high school or college student does a paper with a photo in it that is CC, but beyond that, most any argument could be made that a use is commercial.

It will only take a few litigation cases and after a few years insurers who underwrite liability will begin excluding copyright claims on creative commons licensing protections, and this will shut down corporate use of creative commons materials across the board. When edicts come down from the legal department that no departments can use creative commons material, companies will stop relying on them in place of material the company pays to produce.

Creative Commons had the chance to define non-commercial use when they first started out. They surveyed stakeholders around the country over a period of months.  The decided against defining that term.

So beware, photographers who use a creative commons non-commercial license are placing their copyright and their work at risk, and are devaluing their work by forfeiting the right to ever issue an exclusive license to any client.

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