Imposing a mandatory and unwaivable compensation scheme violates the letter and spirit of open licensing.
Copyright policymakers in Europe and South America have proposed legislation that would impose an unwaivable right to financial remuneration for authors and performers on copyrighted works. The laws attempt to ensure that creators receive payment for their work, but they would interfere with the operation of Creative Commons licensing by adding a special and separate economic right above and beyond the intention of some authors who wish to share their creative works with the world for free.
In short, these unwaivable rights would damage or break the global standard mechanism for sharing content freely and openly online.
Copyright automatically extends to every work of original authorship fixed in some tangible medium of expression—from paint on canvas, a digital photo on a smartphone, or a mindless scribble on a napkin. Copyright attaches to a work whether or not the creator wants it, and protection extends to literary, musical, and dramatic works, as well as photographs and graphics, audio and visual recordings, and software.
We know that many creators feel that the default rules of copyright are too restrictive. The Creative Commons licenses are a standardized and legally sound tool for creators to grant permission in advance for the public to use works in ways that the law otherwise forbids. When creators choose to share, it is a gift to the world, allowing anyone to build and create on top of their works. To date the CC licenses have been used to share more than 1.2 billion works, which are downloaded and reused tens of millions of times a day, creating an expansive digital commons of works that anyone can view, use, and enjoy.
It’s clear that digital technologies and the web have dramatically altered—and continue to change—the ways creative content is produced and shared. The proliferation of new content distribution mechanisms, social media platforms, and crowdfunding services have fueled innovation in the way authors, artists, and performers connect with fans and are paid for their creative work.
Recently, there has been an increasing call by rightsholders and intermediaries to use copyright as the means to ensure that authors and performers can earn adequate compensation for their creative works, even after those creators have transferred their rights to publishers, or film or music producers. For example, in the context of the EU copyright reform legislation, the ITRE Committee of the European Parliament has introduced amendments that would impose an unwaivable right to remuneration for authors and performers. This right would apply to all works, even those published voluntarily under an open license. Last year Chile passed a similar law that applies to authors of audiovisual works.
Unfortunately, these solutions are ill-suited to address the core business and labor issues at hand. Instead, they seek to use copyright as the mechanism to remedy the inequity in the bargaining position of creators in relation to rightsholders. These unwaivable remuneration schemes may be well-intentioned, but they have significant unintended consequences because they reduce the overall flexibility of how copyright can be exercised. An unwaivable right to compensation would interfere with the operation of open licensing by reserving a special and separate economic right above and beyond the intention of some authors.
Creative Commons has taken the position that these types of regulations would create unnecessary complexity for those who wish to share their works under our licenses because they would deny creators the choice to share as they wish. All Creative Commons licensors permit their works to be used for at least non-commercial purposes. When an author applies a CC license to her work, she grants to the public a worldwide, royalty-free license to use the work under certain terms. And many authors simply want to share their creativity freely under open terms to benefit the public good. For example, educators and scholarly researchers create and share works primarily to advance education and to contribute to their field of study—not necessarily for financial remuneration.
We support authors and creators, and we firmly believe in their right to choose to share, or to seek compensation for all or some uses of their works. At the same time, we must find solutions that also honor those authors who choose to share with few or no restrictions. Mandatory and unwaivable compensation schemes violate the letter and spirit of Creative Commons licensing, and they’re a poor substitute for more meaningful and lasting change in service of fair remuneration for those working in the creative industries today.