The contribution of Creative Commons (CC) to a less restrictive copyright regime is, I think, invaluable. The great thing about CC is that it gives makers (that is, creators of all sorts: writers, composers, visual artists, photographers, and professions we cannot even think of yet) an opportunity to share their work more openly. And here’s the beauty in it: It does so within the confines of copyright legislation itself.
Licensing your work under one of the six current CC licenses amounts to saying: okay, I created this work, but of all the rights copyright legislation is bestowing upon me as a maker, I am happy to waive some for it to get a wider dissemination. And depending on the license I choose – and I can opt for a different license for different works – I give others more or less freedom to do with it what they want. If I want a maximum reach for my work, I do not care if others re-use it for profit making, and I will not use the Non Commercial-clause. If I want others to respect the integrity of my work, I’ll add the No Derivatives-clause.
CC-BY as the standard, or rather CC-BY-SA?
It looks as though more and more open access advocates opt for the CC-BY as the standard for open access in (scientific) publishing. In a recent piece Michael W. Carroll indeed argues that CC-BY should be the gold standard for open access. Though I can follow his arguments, I am not sure I can agree. I would like to advocate another position: the default option as an open access standard should be CC-BY-SA.
The point is that in the second stage of re-uses (remixes) CC-BY-licensed content is no longer protected from being locked up again.
Why? Simply because the Share Alike-clause guarantees that all future derivatives (‘remixes’) of the work will be open. Using CC-BY, you are never sure that others who elaborate on your work will eventually publish it under a more restrictive license. They can use your work, add a paragraph, and lock it up under full copyright, or under a CC-BY-NC-ND license. What is nice is that you will still be listed as one of the authors of the work. What is not so nice is that this particular remix of your creation will not be able to spread as far as you wished when you threw it into the world.
Stallman’s legacy: General Public License and Share Alike
The power of the Share Alike-clause struck me when I was reading some of the essays by Richard M. Stallman, who turned 60 yesterday. Stallman is the intellectual father of the free software movement and the licenses under which free software is distributed. In his bundle of essays Free Software, Free Society (second edition), he describes how he and his companions were trying to find a way to keep the code they were writing free – in the democratic sense of that word – ‘libre’ – and not necessarily ‘gratis’ (whether or not software is sold at a price or shared without economic transaction is not relevant here).
As coders, they advocated the right for everyone to use, study, redistribute and alter computer code, or even the code contained in domestic appliances, so that these tools better fit the purposes of the user.
But by default, changing code is not allowed by intellectual property (IP) law. IP law bestows alienable rights to creators and awards them exclusive rights to put their concepts to the market for a limited period of time. The logic behind IP law is that this promotes innovation by economically stimulating creators to come up with innovations – to the benefit of society as a whole. This comes at a price, however: it seriously restricts sharing and working together on innovations, which is more often than not helpful or even necessary in today’s highly complex technological engineering. You simply need people with different specialisms to construct something as complex as a stable operating system.
With a simple trick of ingenious beauty, they succeeded to create the free sphere they wished within the existing intellectual property rights regime. The General Public License (GPL) allows others to change the code for their own purpose under only two conditions: (1) that the original author of the code be mentioned and (2) that alterations of the code be published under the same license. In Free Software, Free Society, Stallman describes how the license effectively forced universities and companies to redistribute alterations of GPLed code by their employees as free software – which otherwise most likely would not have happened.
Free: the ethical imperative
I’m not going into the important discussion here about whether free software is the same as open source software (Stallman vehemently argues that open source is a designer problem, whereas free software is a social movement with an ethical imperative). More important here is tackling the question whether what counts for computer code also counts for text and copyright.
I am inclined to think it does. For all the differences in sorts of use, amount of alterations and redistributions between computer code, research data, metadata produced by libraries, of which I am aware, the effort of keeping free information free is an important ethical imperative. It is certainly true that the CC-BY-license awards the users of your own work more freedoms than the CC-BY-SA-license does. The point is that in the second stage of re-uses (remixes) CC-BY-licensed content is no longer protected from being locked up again.
So, to repeat the argument: Suppose somebody else takes your book, alters some phrases, adds a chapter or two, and publishes it under a more restrictive license – let’s say CC-BY-NC-ND. This remixer is perfectly allowed to do so (provided, of course, that s/he mentioned your name as original author). But that is not what you, being that original author, had in mind when you were sharing your work. You probably wanted others, like this author, to use your work and share improvements under CC-BY.
And suppose you are director of a national library that decides to put its metadata, generated with taxpayer’s money by many librarians over decades, on the web under a CC-BY-license or even CC0 (which is, by the way, not a license, but that is another matter). Then you want others to be able to use that database and possibly improve it, adding new records and fields. What expression will take over your face if after a while a company, or another library for that matter, distributes an improved and expanded version of your data set under a license that effectively prohibits you from re-using it yourself?
Why Share Alike should be the default
CC-BY-SA, the Creative Commons equivalent of the GNU General Public License, makes sure that this will not happen – or if it does happen, you will have a very strong case in court. That is the reason why Lawrence Lessig cum suis incorporated it in CC (Lessig’s book Free Culture was heavily inspired by Stallman’s work, the author acknowledges). And it is also the reason why it is the default option in Wikipedia. With the more restricted freedoms it offers for first re-uses (remixes) than CC-BY does come additional freedoms for all re-uses that follow. And so to keep free content free (again, to quote from Stallman’s book cited above, “think of ‘free speech’, not ‘free beer’”). Or to make sure openness is viral and passed on to other projects, as Mike Taylor puts it in one of his excellent tutorials on open access.
That is why, it seems to me, CC-BY-SA should be the default option for open access, not CC-BY. It’s a simple question of how best to serve the public good. Until now, I haven’t heard convincing arguments why CC-BY would be more suited for that purpose than CC-BY-SA. That CC-BY comes closest to the Budapest, Bethesda and Berlin Declarations on Open Access does not imply per definitionem that it is the option to be preferred. For first re-uses it is; for further re-uses it is not, I would say. But I will be happy to change my mind if I oversaw some more powerful arguments!
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The default in open access: CC-BY-SA by Frank Huysmans is licensed under a Creative Commons Attribution 4.0 International License.