Tuesday, April 19, 2011

Stronger Attribution-Share Alike For Photos & Illustrations

Stronger Attribution-Share Alike For Photos & Illustrations

I have tried having this discussion on the Creative Commons mailing lists before but feel I have never even gotten to the point of being properly understood.

At the urging of Mike Linksvayer in a discussion on Identica, I am trying again.

@zotz … http://wiki.creativecommons.org/CC_Attribution-ShareAlike_Intent (3) says scope of copyleft will only increase…

@zotz … so make sure you campaign incessantly for increase in copyleft scope in 4.0 discussion. :-)

The Creative Commons Attribution-Share Alike license works well to preserve the Freedoms of people with respect to many types of copyrighted works.

It does not work nearly as well for photos and illustrations however. To show the problem we will take two similar situations and see how they differ.

1. A BY-SA licensed recorded song that someone wants to use in a film or video.

2. A BY-SA licensed photo that someone wants to use as an illustration in a book or article.

There seems to be wide agreement that in order to use the song in a video, the video will have to be put under the BY-SA license as well. There is even special language in the license to make this clear.

There also seems to be wide agreement that the same would not hold in the case of the photo in the book.

I would like it to hold in the second case as well as the first.

Up until now, every time I bring up this desire, people indicate that it is impossible as the licenses reciprocal provision kick in on the making of a derivative and in the first case, the law stipulates that a derivative is made while in the second case, no derivative is make according to the law.

That reasoning is fine and makes sense if one thinks that the making of a derivative is the only tools we can use to activate the reciprocal provisions of the license. I think there may be another possibility.

I propose an additional trigger in the license. It would work like this.

You have a right to copy and / or distribute the work alone. If you want to copy and distribute the work along with other copyrighted works, we contemplate two possibilities.

1. The group of works will be distributed together in such a way that no extra copyright comes into existence. In this case you have permission to copy and / or distribute the work.

2. The group of works will be distributed together in such a way that the group or collection or "container" gets a copyright of its own. In this case you do not have permission to copy and / or distribute the work unless the "container" is also put under a BY-SA license and all of the other works in the "container" are also under "Free" licenses.

So, we are not constrained to requiring a BY-SA license in the case of a derivative. By using the restrictions in copyright law on copying and distribution, we can require it in non-derivative situations.

That is the bones of the thoughts at least. I am looking for input along several lines.

1. Is this possible from a legal point of view?

2. Is there a better way to do this?

3. Should this be done?

4. Benefits of doing this?

5. Problems with / dangers of doing this?

6. Am I missing anything?


Mike Linksvayer said...

I left a long comment which blogger ate. I should've composed outside the textarea. :-(

I lean toward it being a good idea. I think it would be most useful to repost when 4.0 requirements gathering starts.

I'm most interested in 4 and 5 (benefits and costs) so I'll brief versions of those:

Benefits: Possible more use of BY-SA from people who want to leave less room for "exploitation"; possible more use of BY-SA due to stronger vacuum effect of more aggressive copyleft; increase differentiation among BY and BY-SA

Costs: Possible revolt from people committed to/expecting weak copyleft; possible less use of BY-SA if most people prefer weak copyleft/find strong copyleft unworkable; possible increase siloization among freely licensed works

Rob Myers said...

This is a good idea. Not just for illustrating articles with photography, but for composition *above the level of mere aggregation* in general. I think a good term for this is "accompaniment", or possibly "enclosing context". If music, or an illustration, or a poem, or whatever, accompanies a text or video or whatever, or is enclosed by or encloses it, as part of its presentation rather than merely as a separate element in a collection with other texts or videos or whatever, the fact of this should require the work it accompanies/encloses/is enclosed by to be BY-SA.

This avoids debating which US court circuit is right about images accompanying texts being derivation, and makes clear the ethical basis for the requirement.

Whilst this will make photographers happy, they are not special snowflakes. This is a general application of the principle of a right to answer use of one's work with one's own reciprocal speech, possibly more share-alike than copyleft, but I'd need to think about that before I could say for sure.

Mike, please do consider this for CC 4.0 . :-)

zotz said...

Mike, I will try and reply to you later.

Rob, in the past I have used the concept of a copyright arising. That is, if your "enclosing context" gets a copyright then the share-alike provision would kick in.

If that is a sensible take, it might even end up with some reverse pressure for less "enclosing contexts" to get copyright protection in the first place (from a desire to use the works without the share-alike provision kicking in) which could leave us with a win in either situation.

Mike Linksvayer said...

I honestly don't know whether "copyright arising" is a good or workable trigger, would definitely require legal vetting. Whatever the mechanism, I think increasing aggressiveness of BY-SA copyleft is the right policy to aim for in 4.0.