After looking at the possibility of using non-copyrighted digital reproductions of public domain works last month, this (and next) month TLC will take a detailed look at choosing a suitable (Creative Commons) license for the Japan book. Since I want to account for the possibility to use additional (CC-licensed) art-work from third-parties, I have to take some extra care that the terms of the out-license (the license applicable to the entire work, including my original works) are not incompatible with the in-licenses (applicable to the art of others), and the other way around.

As it will become clear that Creative Commons licenses know a few drawbacks, I will first highlight what the possible reasons for using a CC-license in the first place are. After then describing the different possible uses and distribution methods for which I want to allow now and in the future, we’ll dive right into the different Creative Commons license options (modules), hopefully resurfacing on the other end with a license that fits the purpose.

(Because of the length, this topic will be split into two post, one this month, one next month.)

Why a CC License?

The short answer to why you would want to use a CC license is that they are popular.

The long answer is that they are popular because they are generally permissive, giving others a great degree of liberty to use and re-use the content licensed, which can be appealing to creators. (In my case it is, as I am looking more for kudos/whuffie than money in what is essentially a hobby project. For my purposes, I am disregarding any loss-leading purposes or split revenue models for which you might want to use a permissive – CC or other – license.)

More importantly, the popularity of the Creative Commons licenses means that they are widely used, and like the GPL, many people will end up having a fair understanding of what they mean. Granted, there is a fair amount of discussion about CC concepts themselves and the specific meaning of particular license modules, such as the Non-Commercial (NC) module, previously discussed here on TLC. But, I think this discussion shows that people are invested in the Creative Commons licenses, and work towards a better understanding of the licenses, much like the GPL.

(A more practical point is that if you are looking at others using and reusing your work, applying a CC license, rather than a different permissive license, makes it easier to find your work given the familiarity with the licenses and the CC-focused tools and search options that exist.)

Consider Your Future Use

If I use only my own, original, content I can re-license the work under a less restrictive or more restrictive license depending on my needs, and choosing the right license from the outset is less important. That being said, as you can not revoke a CC license, re-licensing under a more restrictive license will only carry weight if you also control to some extent distribution and/or production of your work.

If I also use content of others, I must make sure that whatever license I end up applying, or would like to apply in the future, does not conflict, in whole or in part, with the license or licenses applicable to the works I use. Carving out or replacing those parts is likely to be a painstaking process. For example, if there is a chance that how I use the works could be seen as Commercial, for example because money changes hands for the hard-copy version, then I cannot use works licensed under a Non-Commercial license.

I also have to consider what kind of uses I would like to allow for, for example whether I will allow others to make derivative works, or distribute or re-use my works commercially. Again, if I use the content of others, I need to look at the terms that apply to those upstream works to make sure that they also allow for such future uses.

Mixing and (Mis) Matching the Licenses

The six major available CC licenses move on a sliding scale from permissive to restrictive (given that even the restrictive one is more permissive than all rights reserved), depending on the “modules” that apply. The order would be, from permissive to a little less so: CC By, CC By-SA, CC By-NC, CC By-ND, CC By-NC-SA, and CC By-NC-ND. (The By-NC-ND versions appears to be the default for many services, including, as it turns out, the Wordpress installation I am using at this blog, and at Flickr, the photo sharing site I use.)

Some CC licenses are incompatible. Consequently, I have to take care that when selecting works of others to use, I do not select works that carry a license that is incompatible with whatever license I would like to use now or in the future. The basic incompatibility is that of ND (No Derivatives) licenses with SA (Share Alike) licenses.

But can I use works that are originally license under a less restrictive license? What if, for example, I would like to license the Japan book under a By-SA license, can I then use works that are licensed under a By license? The licenses say:

You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License.

I think that, since the original work remains available under the By license, and I mention the original license terms for that work, I can license the entire resulting work under, say, a By-SA license.

The other way around is not possible. I cannot apply a By license to the resulting work, and use original works license under say a By-SA license, or a By-NC license.

So, basically, the licenses applicable to the works of third parties that I might use in the book need to be less restrictive than the license under which I would like to make the resulting entire work available. Luckily, not to get lost, there is a useful Creative Commons license compatibility wizard from Creative Commons Taiwan, I can heartily recommend it. (Creative Commons United States has not yet approved any compatibility between CC licenses.)

Now, let’s look at the different CC modules in more detail.

Call Me By Your Name (Attribution)

This is an attribute that all CC licenses share. It is simple, it requires attribution to the creator (or a group or institute since version 3.0). CC By is the simplest, and most permissive of all CC licenses, short of dedication to the public domain. However, you still need to take into account the moral rights / droit moral of the author. As the short version of the By 3.0 license mentions:

Nothing in this license impairs or restricts the author’s moral rights.

I am not sure what the moral rights of an author are in the United States, if any, but in The Netherlands, and from what I understand in most if not all continental European countries, they basically give the author, in addition to a right of attribution, a right of integrity (of the author). This later right allows the author to object to any distortion, mutilation, or other alteration (modification) of the work which might prejudice the honor or the reputation of the author as such.

Since version 3.0 of the licenses, there is, at least in the basic unported (more on that next month) version, a limited non-assert provision (covenant) whereby the author promises, for jurisdictions where adaptations are seen as conflicting with the moral rights of the author, not to assert such moral rights.

Final point. What is a sensible way of complying with the attribution requirement in the context of the book? The CC licenses require that, in addition to keeping intact copyright notices, I provide “reasonable to the medium or means” I use, the name (or pseudonym), name of the work, and “to the extent reasonably practicable” any URI pointing back to the copyright or license information. The URI pointing back would most commonly be a web page. I wonder how reasonably practical it is to provide a list of web addresses, reasonably practical I think.

Next Month: Commercial and Non-Commercial, No Derivatives and Share Alike, and Porting

That’s it for this month. Next month, TLC will look at the other available options, Commercial and Non-Commercial, No Derivatives and Share Alike, and jurisdiction specific (ported) licenses. Until next month!

‡‡ [This is a post from Technology Law Culture:http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Creative Commons License Buttons. See also http://creativecommons.org/policies/.)

This month, TLC will look at the question whether you can use a (digital) reproduction of a work that is out of copyright without specific permission from the party that made the reproduction? First, as background, we will explain why we want to use such a work, and why we prefer or even need to use a reproduction made by someone else. Second, we will explain why explicit permission to use such reproduction might not be necessary as far as copyright is concerned. Third, we will explain why again we will err on what is perhaps the safe side of things, by trying to get specific courtesy permission from the party that made the particular reproduction that will be used in the Japan picture book.

Using a Painting as Illustration of 19th Century Orientalism

At the end of the 19th century, Orientalism was much in vogue. Orientalism entailed a certain fascination with (certain) aspect of cultures of the Levant, the East and the Far East by writers and artist in the West. (Edward Said’s book Orientalism is the book that introduced me to the subject.) An example of this fashion, of which Japonism was a flavor focused on one country, is Van Gogh’s use of an ukiyo-e by Hiroshige as the inspiration for his painting The Bridge in the Rain (1887). Likewise, the Amsterdam painter Breitner, a contemporary of Van Gogh, in his painting Girl in a White Kimono (1884) pictured a young woman dressed in a unmarried woman’s kimono, against a background of a Japanese screen. It is this picture that I want to use as illustration, and as Breitner died more than 70 years ago (in 1923), there is no longer any copyright on the images on his paintings, and they fall into the public domain. But that does not give me access to an image of the painting itself. Luckily, Girl in a White Kimono is part of the collection of the Rijksmuseum in my hometown, Amsterdam. However, having to go and take a picture of the painting so that I may use it as an illustration seems cumbersome. (Apart from the fact that I might have to agree to not photographing the painting when entering the museum; that and I am not sure it is on permanent display during the extensive construction work on the museum currently underway.)

Public Domain Work Equals No Copyright On Reproduction

Luckily, on its website, the Rijksmuseum has made available (medium-resolution) digital reproductions of the work. The Wikimedia Commons site has (what appears to be exactly) the same picture. But can I use that picture? Surely, it was made not so long ago that any copyright applicable to it may have lapsed? But does the picture, the reproduction, of the public domain work, qualify for copyright itself?

Wikimedia has this to say on the matter:

Faithful reproductions of two-dimensional original works cannot attract copyright in the U.S. according to the rule in Bridgeman Art Library v. Corel Corp. This photograph was taken in the U.S. or in another country where a similar rule applies (for a list of allowable countries, see Commons:When to use the PD-Art tag#Country-specific rules).

This photographic reproduction is therefore also in the public domain.

The Wikimedia commons wiki contains a page that lists the position of this issue in several jurisdictions, including the Netherlands. (This is assuming that our applicable jurisdiction is the Netherlands.)

OK In the Netherlands, photographic reproductions have been found not copyrightable in the Van Dale/Romme-arrest, a decision of the Supreme Court of the Netherlands.

The case cited as support dealt with the re-use of (parts of) a dictionary. (Contrary to the U.S. case cited, it is not on point for the re-use of reproductions of works of art.) Where a dictionary is in essence a selection (and presentation) of words naturally present in a language, the high court held in the Van Dale/Romme case that the collection did not qualify for copyright. Consequently, any re-use of it was not sanctionable under copyright law.

Let’s explain. Under Dutch copyright law — and I am not sure in how far this is a particular feature of Dutch law — in order to qualify for copyright, a work needs to have an own, original character and carry the personal imprint of the author. The boundaries of what qualifies as a work is at times debated, and at times extended. (Most recently, extending copyright to the design of jeans — discussed by William Patry here — and perfume; but not granting copyright to a series of police interviews, seemingly adding intent on creation of the creator (sic) as part of the test whether a work qualifies for copyright.)

What does this mean for the pictures that the Rijksmuseum takes of the paintings in its collections? Most likely, that a faithful reproduction of the work does not carry the own, original character and personal imprint of the author (in this case, the photographer), and consequently does not qualify for copyright. The Rijsmuseum’s claim that:

With the exception of storing one single temporary copy in the memory of one single computer and making one permanent copy for the end user, the information on this site may be used only after receiving written permission from the Rijksmuseum. This applies in particular to the multiplication and distribution of pictures and texts and to the framing of pictures and texts in other websites.

might not be correct. (But, there is no case law on point, so you might be testing the extent of the law here.)

But You Might Need or Want A Good and High Resolution Reproduction

Even though it is likely that you can use a reproduction made already available, a particular work might not have been reproduced in a readily available format, or the quality of the reproduction might not be sufficient for your particular purpose.

Consequently, I might want to obtain a higher quality image straight form the source, in this case, the Rijksmuseum:

For the commercial use of pictures, material suitable for reproduction can be ordered (against payment) from the Rijksmuseum’s Photo Archive.

This is getting expensive for a hobby project and it might limit me in how I licence the entire resulting work, but, if only out of personal interest, I am going to find out if and how much the Rijkmuseum would charge for this particular project. More news to follow.

In addition to the above, and perhaps more importantly, as the owner of the reproduced work in question might be unpleasantly surprised by finding a reproduction in a (semi)commercial work, you might want to ask for courtesy permission, copyright or not. This is what I will do in any event.

‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Detail of Girl in a White Kimono.)

Last month, TLC looked at what Non-Commercial in the Creative Commons license might mean. After a short explanation on why and how it was important to look at what Non-Commercial might mean, we highlighted the relevant language from the license itself, which says that you cannot use the CC licensed work:

in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

This month, we will see how the Creative Commons organization and others interpret this clause. Concluding that uncertainty remains, we will see that one prudent course of action is to ask explicit consent from the copyright owner to use a work for a particular goal, increasing security but possibly lowering the benefit of lowered transaction costs that Creative Commons offers.

What Creative Commons (The License Stewards) Says

The Creative Commons organization, as stewards of the license, is an authority on the license. Back in April 2005, Mia Garlick, then general counsel of Creative Commons, posted the following to the cc-education list:

Just to clarify a topic that has been the subject of some discussion on this list over recent days - the intended meaning of non-commercial as drafted in the CC-NC licenses is any use in a for-profit environment. The drafting of the license was intended to avoid any distinctions based on whether money changed hands or a profit was actually made. The relevant factor to consider is whether the entity making use of the work has profit as its primary motive.

Hope this clarifies things rather than raises more questions!

All the best,

Mia Garlick […]

After further discussion, Creative Commons published in January 2006 a first draft of Proposed Best Practice Guidelines To Clarify The Meaning Of NonCommercial In The Creative Commons Licenses. (And accompanying January 10, 2006 blog post of Mia Garlick: Discussion Draft - NonCommercial Guidelines.) With some additional explanations and a small preamble, the final Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercial” In The Creative Commons Licenses now resides at the Creative Commons wiki.

What do the guidelines say? The guidelines follow a workflow-like approach to answering the question what is and what is not Non-Commercial use. Both the kind of user and the kind of use are relevant.

As for the kind of users, allowed are private individuals, not for profits (educational or other) and service providers to these two categories of users. All use of a Non-Commercial licensed work by others would not be a noncommercial use and a license violation. (Which is not necessarily the same as a copyright violation, as the particular use might not be relevant for the applicable copyright law, or an exception under the law might be available.)
For the Japan picture book, I would qualify as an individual and am still golden.

Following the guidelines further, what kind of uses are allowed? I cannot use a NC-licensed work in an advertisement (not my own), make viewing an advertisement a condition for viewing the content, or use the work in connection with advertisements for which the work is the “primary draw”. This appears to draw on the “directed toward commercial advantage” language in the license; the later two options also seem to be more relevant for Web-based endeavors. Here also, for the book I should be fine with my intended use.

The next part of the guidelines seem to take the “private monetary compensation” language of the license as focus. The questions in the workflow concentrate on “money changing hands,” either in connection with a service provided in connection with the NC-licensed work(s), or in connection with the “verbatim” or “derivative” use of such work(s) if money is charged for using the new work(s) that make use of the NC-license works. Although you would have to pay for the printing and shipping of the book, as I am not receiving any money from it, I would argue that this is only incidental to a service being provided to me as “an allowable NC user” and I should still be fine.
Like Eben Moglen’s explanations on the GPL, the explanations of Creative Commons, the license stewards, on what Non-Commercial might mean is authoritative but not conclusive. At the end of the day, both legally and practically, what matters is what the creator and the user (the licensor and the licensee) could understand the Non-Commercial license term to mean.

What Creators Say

So, let us see what some creators have understood the Non-Commercial element of the Creative Commons licenses to mean.

On the initial user-based distinction of the CC guidelines, David Wiley, over at the Iterating Toward Openness blog, remarks how MIT OCW (Open Course Ware) has added an explanation of what MIT understand Non-Commercial to mean in the license as they apply it, and how no distinction is made on the basis of the user by MIT, contrary to the guidelines of Creative Commons:

Materials may be used by individuals, institutions, governments, corporations, or other business whether for-profit or non-profit so long as the use itself is not a commercialization of the materials or a use that is directly intended to generate sales or profit.

Then, to give an example of a creator taking issue with a particular use by a commercial company, Niall Kennedy described in December 2005 how Microsoft had used one of his BY-NC 2.0 licensed photos from Flickr on a corporate blog promoting Vista:

Microsoft used the image I shot […] without attribution and to commercial advantage, in violation of the Creative Commons by-attribution non-commercial license attached to the work.

(Via Denise Howell.)

And finally, my response to a request to use a picture of a Pecha Kucha night in Rotterdam that I had posted to Flickr, under a BY-NC-SA license (the default for Flickr):

This is [..]. I posted a story on Pecha Kucha, and its growing social scene. I found that many people on Flickr from all over the world were sharing photographs relating to the story. I wanted to see if you would be interested in contributing.

My post is on NowPublic, which is a news sharing community that relies on stories, photos, & videos from sources like you.

Would you be interested in sharing them with our members?

While I greatly appreciated being asked and was ready to share / approve the use, I stopped short of creating the required account at the site.

My response:

Re-using my pictures is fine, where it not for the sign-up. I won’t sign-up, but feel free to re-use the pictures you indicated, and see this e-mail as the corresponding permission/license to use them for NowPublic.

Perhaps if you look for pictures with PechaKucha as tag and “commercial” as part of their cc license?

Anyhow, while to my enjoyment I corresponded a little back and forth with the author of the story that wanted to use the picture, the processes at the site were set-up so that you needed to sign up, permission to use the work or no, and about 37 pictures but mine now grace the news item. (See Jason Pearce for a similar story.)

Which brings me to my final point, and the approach I am likely to follow when sourcing additional pictures for the Japan picture book: When in doubt, ask.

And Choosing A Prudent Course Of Action: At Increased (Transaction) Costs

One of the greatest benefits of Creative Commons is that it is easier for creators to apply a permissive license to their works, and for users to re-use (“rip, mix and burn”) such permissively licensed content. As there is still, and might always be, a grey area between what clearly is, and what clearly is not noncommercial use, legal uncertainty remains.

I can see two sensible approaches to this uncertainty. One, do not use NC-licensed works when you are in doubt as a user that your particular use is in fact non commercial, and after stopping to imagine how the creator might feel about a particular use. This limits the pool of available works considerably, for example by about 75 percent for pictures taged “Kyoto” on Flickr. If that is a problem, or you first came across a particular work you would like to use, only to see that a CC license containing the NC element was applied, you can try and obtain permission for the particular use. As most CC-licensed works can be found on the Internet, it should also be relatively straightforward to ask permission for a particular use from the creator. Or in other words: when in doubt, ask. (Perhaps a nice approach in general as well, to let the creator know you are using a work.) However, having to go back to the creators who already applied a license increases transaction costs for the creators and the users, with diminished benefits of the Creative Commons set-up.

I for one would be surprised if I would see my NC-licensed photographs in a work that can be bought in a store, as it would be immediately evident to me who the user would be and how the particular work is used within the context of the book. So, even though when following the Creative Commons draft guidelines I end up using the works in a manner that is allowed, I intend to ask the creators whose works I would like to use in the Japan photography book if they are happy with it.

‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Screengrab from the result of a CC Search query.)