Licensing danger

PICKING UP his phone to hear a familiar voice asking: "When did you start supporting the British National Party?" gave cartoonist Tim Sanders a shock. His politics could not be further from the boot-boy racists - what could his friend mean? "I have got a BNP leaflet in my hand that is uses one of your illustrations", his friend continued. "Didn't you give them permission to use it?"

Cory Doctorow screenshot

Cory Doctorow holds up Creative Commons logos, one of which must be a licence that applies to this screenshot

The answer, of course, is that Sanders - whose work often appears in the Guardian and the Independent - had given no such approval. He had, however, supplied some illustrations to a campaigning charity. It had persuaded Sanders to release his work under a "Creative Commons" licence - thereby enabling any non-commercial organisation to make use of his work.

"I had already decided to donate the work for a cause that I wanted to support, so the Creative Commons licence seemed like a good idea", says Sanders. Horrified that his work was being used by an organisation to which he felt violently opposed, Sanders turned to the NUJ's freelance office.

Alas, Freelance Organiser John Toner could provide no comfort. "Once you release a piece of work on a Creative Commons licence, there is no way of controlling who makes use of that material", he says. "You may, with the best of intentions, wish to allow people to use your work without having to pay - but if you use this particular kind of release, you surrender your right to decide who uses your work and for what purpose, providing the user complies with the stipulated terms. I would advise members to think very carefully before using this kind of licence."

Creative Commons licences have been around since 2001 and are intended to help creators share their works, without payment, in the public domain. The not-for-profit foundation that developed and promotes these licences encourages the idea that some might share their works simply to enrich the available stock of content. Others, it believes, will do so as part of a business.

"The internet makes copying content without paying effortless", says Creative Commons Foundation communications manager Elliot Harmon. "That reality changes the way that creators need to monetize their content. For many creators giving away permission to use their works on the internet and elsewhere can ultimately be far more beneficial to their careers, than trying to enforce scarcity of their work."

[NUJ President Tim Dawson; © Lucy Adams]

There are currently six Creative Commons licences that grant differing levels of permission; from allowing a work to be used in almost any way so long as its creator is attributed, to the most restrictive that allows material only to be used, but not altered, by non-commercial publishers. And, Harmon points out, Creative-Commons-licensed work cannot be used in such a way as to suggest that its creator endorses a product or campaign, and a creator can require that their attribution is removed from a work if they don't like the way that is has been used.

Such permissive licences are an idea that has caught on with at least some creators.

Journalist and sci-fi author Cory Doctorow, for example, has long released his fiction on Creative Commons licences. "It's the 21st century, anything digital that people want to take without paying for it, they can, in approximately the same number of clicks as it takes to buy it", he says. "That means that all purchases are voluntary, whether or not you use Creative Commons licences. Copyright industry enforcement focuses on terrorising people into paying. I focus on performing acts of generosity and trust and hope to encourage reciprocal reactions from my readers. So far, it's working. My latest book, the graphic novel, In Real Life, written with Jen Wang, is number three on the New York Times graphic novel bestseller list."

Writers are not alone in this enthusiasm. Photographer Jonathan Worth's work has appeared in Rolling Stone, Vogue and Vanity Fair. He is such a complete convert to the "Creative Commons" way of working that he can hardly imagine his life in what he calls the "all rights reserved" era.

His conversion came after he photographed the actor Heath Ledger for the New York Times. The editor of a fan site copied some of his outtakes and posted them on her site. "I fired off a furious letter demanding to know how she dare steal my work?" They were taken down, after which time Worth's own site was bombarded with interest from Heath Ledger fans. "I can't believe now how stupid I was. I had all this attention, and nothing to give them at all. The level of interest, particularly after Ledger died (in 2008) was such that I could have written up the photo shoot as a booklet and made money from it".

His newspaper portrait commissions pay very little, but, says Worth, they give him access and opportunities that can be leveraged in other ways. "I might get ten minutes with Jude Law, for example. From that shoot I will supply perhaps nine potentially publishable shots for the New York Times. Once they are published, I will then start to release some of the outtakes on my own site, via a Creative Commons licence. That allows bloggers to use the shots, which drives traffic to my site and allows me to sell prints."

Another approach is to create limited edition products. With one author, Worth created a "collectable" copy of his original manuscript, plus a numbered photograph. Only 115 were produced and the higher numbers in the run sold for £150.

"That picture ultimately made over £2000. If it had languished in my own archive, I doubt if it would have made a penny".

Worth applies the same approach to his teaching and attracted 35,000 students to a free online course at the University of Coventry and more than quarter of a million to a course that he ran for the University of California (Irvine).

Such enthusiasm for these licences incenses those who oppose this approach to gifting creative work to the world. Andrew Wiard, for example, a former chair of the NUJ's Photographers' Council, takes an emphatic line. "Creative Commons licences are dangerous. NUJ members should not just be warned against them, but the union should oppose them outright. They are a social evil. You don't need a Creative Commons contract to give your work away, either in its entirety, or by way of a limited licence - something which even I have been known to do."

Wiard's antipathy is born, in part, from personal experience. Several decades ago he contributed photographs to the seminal feminist magazine Spare Rib. The magazine closed in 1993, but its 20 year back catalogue is of interest to cultural historians. Late in 2013, The British Library announced a pilot project to see whether it would be possible to digitise the back catalogue and make it available on the web. More than 1000 former contributors were contacted and asked if they would release their work for the magazine under Creative Commons licences.

This angered Wiard, and other former contributors, because not only would it allow the archive to be viewed over the web, but it would also allow others to reuse photographs that first appeared in that publication, without further permission or payment. Wiard refused and has been agitating against Creative Commons ever since. The Spare Rib pilot is now complete, but the British Library has not yet decided whether to press ahead with the entire digitisation project.

The veteran photographer's concern is, in part driven, by his fear that the more Creative Commons licences are adopted, the harder it will be for creators to resist them. He is certainly right that they are becoming a part of everyday conversations when rights and releasing work are discussed. In November 2014 the UK government's then culture secretary Sajid Javid made a speech that was widely interpreted as laying out future Conservative manifesto commitments. In it he wondered: "Should the BBC share its local public service content under a Creative Commons licence?"

And the Heritage Lottery Fund, which distributes nearly £400m annually, requires that, where its funds support digital content, that material is released under a Creative Commons licence. It is consistent with the Creative Commons Foundation's stance that works that are created by governments or paid for with public funds should be openly licensed, but for freelance contributors considering work to an HLF-funded project, it is easy to see how this could make for an uncomfortable choice.

Harmon insists that the use of Creative Commons licences should never be obligatory. Although he is an enthusiast for their benefits, he accepts that in some instances they are not appropriate. "If someone asks me whether they should share their work under a CC license, there's no one right answer. I'd encourage them to think about how they can most effectively distribute and benefit from their work over internet. Many people have successfully used open licensing as a part of that formula."

That won't satisfy Wiard and many others, but it does pose a worthwhile question.

For those of us who started our careers before the internet, clinging to analogue-era working practices is appealing, however radically our industry remakes itself. Tumbling incomes for all freelance creators, photographers more than most, do call into question how tenable this approach is in the medium term? Some clearly believe that the spirit of the times requires a new attitude to licensing.

When the NUJ's delegate meeting was invited to consider our union's attitude to Creative Commons licences, it decided that informing members about their potential pitfalls was a better approach than taking a hard-and-fast policy in favour or against. That is one of the functions that this article will hopefully perform. If you want to keep your work out of the hands of fascists, however, or anyone else with whom you would not care to be associated, then the licences under which you offer your work clearly merit careful consideration.