Dangers of Over-Enthusiasm in Licensing under Creative Commons

Michal Koščík, Jaromír Šavelka

Abstract

In this paper we assess the Creative Commons licensing scheme that offers a simple, user-friendly tool to allow anyone to distribute or build upon others' work without the necessity of drafting legal documents. Even a person without any legal education or knowledge of law can use the Creative Commons website to license her work under a professionally drafted license contract. We argue that this user-friendliness has its risks and pitfalls. The licensing procedure itself is perhaps too easy and may create an illusion that nothing can go wrong. But licensing is not as simple as it may appear from the first visit of Creative Commons' website. The most frequent mistake a user can make when using a license under the Creative Commons is to license a work for which he has no legal title. Surprisingly to many users, even the author of the work does not always have the right to license its work under the Creative Commons licensing scheme. We have assessed the most common issues arising out of the situation and suggested possible solutions. We demonstrate that alongside the widely debated issues of the Creative Commons licenses compatibility with current copyright laws of various jurisdictions, as well as the compatibility of the licenses among themselves, a much deeper problem is inherent to the system. It persuades wide range of users with no legal background that it is possible to safely enter into highly complex legal relationships without proper information and assistance. This results in incorrect use of the Creative Commons licenses and countless number of people unintentionally infringing copyright. The situation left unattended may very well lead to the breakdown of the whole Creative Commons system. Indeed, this would be extremely unfortunate, considering the undeniable value of the whole system and the effort that has been already put into its creation. We have formulated easy-to-follow advice for common users and public bodies to foster the development of the Creative Commons. Besides, we have also formulated several suggestions on how to improve the current online licensing tool the Creative Commons organization use to offer the licenses. The common denominator of the changes should be the refocus from simplicity to provision of a complete set of information – shift from gung-ho approach to a responsible and ‘well-informed’ user approach.

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