Although it is undeniable that the Internet is largely responsible for the cultural development we have witnessed in recent years, it is also undeniable that, for years, it has put the copyright system on the ropes.
Obviously, the current situation cannot be compared to what happened years ago -when pirates stopped sailing the seas to take over the net and plague it with tools to download films, music or books indiscriminately (for free, of course)-, but the truth is that there is still a long way to go in terms of respect for intellectual property rights and for authors who are still struggling to assert themselves and find a place on the net.
Besides, in an increasingly critical society, Intellectual Property and Copyrights are part of the debate. If Banksy has become a role model in terms of rejection of the status quo, with his “Copyright is for losers”, the truth is that, for more than forty years, there have been lines of thought that, for one reason or another, thought that copyright was an obstacle that prevents cultural development, and have therefore tried to create tools to achieve more flexibility.
The first of these movements arose in the eighties with the creation of the so-called “copyleft” in the heart of the Free Software Foundation, with their “GNU GPL” (General Public License), was designed to give the user the greatest possible freedom in terms of licensing to modify and redistribute the resulting software, as long as the new versions are also “free”. Free Software, which does not necessarily mean ‘free’ (a common mistake is to assume that all free software is ‘free’), was therefore intended to facilitate and encourage exchange of creations, promoting a common cultural heritage and removing obstacles or limitations.
For some years, the ground-breaking “copyleft” emerged as the only alternative to copyright, until 2001, when Lawrence Lessig founded the non-profit organization called Creative Commons (with headquarters in the United States). The organization wanted to make the system more flexible, without totally waiving use rights like “copyleft” promoted. Undoubtedly, the leitmotiv of Creative Commons would be “Some rights reserved”.
Licenses devised by this institution are structured by means of a series of symbols (as we shall see, these are real clauses with their own scope and content) for the author to authorize certain uses of works in a simple and standardized way, on a global level. To this end, different institutions around the world, which are members of the American organization, are responsible for adjusting standards to the legal dispositions in each country. In Spain, this work has been carried out by the University of Barcelona since 2003 and, since October 1 2004, Creative Commons licenses, which comply with Spanish intellectual property legislation, have been available for everyone
Consequently, the myth about the positive law origin of Creative Commons is dispelled: they are not legal standards, but they are perfectly valid as long as they do not contravene provisions of mandatory law.
Thus, in our country, courts have acknowledged their validity, saying that their use does not mean that an author renounces to a work or to the moral rights held, which may not be waived. (Ruling of June 20, 2007, by the 2nd Commercial Court of Valencia, Spain, and ratified by the Provincial Court of Valencia by means of Ruling No. 333/07 of December 13, 2007). Such statement applies the principle of party autonomy -as provided for in article 1255 of the Civil Code- and article 14 of the Law on Intellectual Property.
Despite the above mentioned, there is a wrong belief that finding these symbols means that the creations they accompany are totally free of copyrights or are not protected. Well, this is not the case: not only because Spanish law prevents it -as we have mentioned, there are certain inalienable rights that may not be waived- but also because it is against Creative Commons’ spirit, which is to provide authors with a licensing model that, instead of forbidding use, authorizes it under certain circumstances, so that a piece of work can be protected without being part of the public domain. However, the author may grant rights so wide that the work could be considered as belonging to public domain. In short, Creative Commons licenses are not meant to fight the copyright system, but to make it more flexible through mechanisms that favor knowledge exchange -the ultimate goal of the organization-, putting into practice the aphorism “If you can’t beat your enemy, join him”.
Consequently, it is essential to read the small print, not only because you will be able to use a piece of work in accordance with the limits established by its author -in the end, the author is the only one entitled to decide how and by what means the work will be exploited-, but also because it will prevent you from infringing third-party rights.
Before analyzing the content of these clauses, it is essential to understand that Creative Commons are licenses granted to all its potential users. Therefore, if, as authors, we have licensed a piece of work under this method, we will not be able, for example, to prevent its use by one of our competitors; on the other hand, if, as users, we wish to make use of that specific photograph, we will also have the peace of mind of having authorization regardless of our circumstances.
The final licenses resulting from the possible combinations proposed by Creative Commons are six. Let us analyze the four clauses on which they are based:
Recognition (BY): Recognition of work authorship, regardless of other uses authorized by the owner, is the cornerstone of Creative Commons and, therefore, must always be fulfilled.
Non-commercial use (NC): This clause excludes uses of the licensed work that have an economic purpose.
Share alike (SA): This provision is probably the one that most closely relates Creative Commons to the already mentioned “copyleft” licenses. It is also the most burdensome for the user or assignee, since it imposes the obligation to license the piece of work under the same terms as those included in the original licensing.
No Derivative Work (ND): This clause prevents the user from transforming or modifying the licensed work.
As mentioned before, based on these clauses -and their combination, as far as their nature allows it, and depending on the one that best meets each particular need- six possible Creative Commons licenses are established with the shared purpose of achieving authorship recognition, without exception. Consequently, if someone who obtains a piece of work from a free licensing page publishes it later on his or her own website without identifying the author, mentioning where it is obtained from, or simply without indicating that such piece of work does not belong to him or her, that person’s behaviour shall be deemed reprehensible.
As mentioned before, the correct interpretation and knowledge of the scope of uses licensed by means of Creative Commons becomes essential to avoid incurring in copyright infringements. Failure to comply with any of the obligations or prohibitions that the owner chose when licensing his work will entitle him to bring actions against the offender.
At this point, it is important to draw attention to the so-called “Copyright Trolls“: although they license their content in accordance with these provisions, these authors hide certain requirements in the small print that the user often overlooks. This, in turn, serves as an excuse for starting copyright infringement suits against innocent assignees. Recently, the case of a photographer has been made public. He collected about four and a half million euros by submitting complaints to users for the misuse of his photographs. In this way, what was apparently subject to “CC BY” licensing -that is, all uses were allowed, including commercial uses, with authorship recognition- was, in fact, translated into a series of requirements on the website that unsuspecting users did not notice. The photographer then surfed the net in search of his images and, once he had proved that the use of these images did not meet his requirements, he asked for indemnities.
Unfortunately, from the legal department, we have witnessed a significant increase in this type of complaints in recent months. Although this act may be reprehensible from an ethical point of view, the truth is that, nowadays, such complaints are included in copyright regulations, so making good use of Creative Commons licensed content is essential.
- Elena Ordúñez Martín
- Legal Department Coordinator and Head of Intellectual Property and Audiovisual Law at PONS IP.
- Sandra López Martínez
- Intellectual Property Lawyer