One major reason that scholars and institutions are using CC licenses is the ease of applying them to creative works. The Directory of Open Access Journals(DOAJ), which is regarded as “both an important mode of discovery and marker of legitimacy within the world of open access publishing,” now recommends CC licenses as a best practice.
DOAJ explicitly encourages scholars to use Creative Commons’“simple and easy” license chooser tool. Indeed, the Creative Commons website provides scholars and institutions a very user-friendly way to select and apply a license to copyrightable works.
Anyone can place a CClicense on a work by copying and pasting from its website. However, this oversimplified process of handling intellectual property rights of creative works may mislead both copyright owners and copyrighted works users to overlook pitfalls of this free license, including unintentional copyright and other intellectual property rights infringements.
More specifically, one prominent legal formality of CC licenses is that licensees do not need to pay to register with Creative Commons to apply a CC license. As indicated by Creative Commons website, a CC license is legally valid as soon as a user applies it to any material the user has the legal right to license. Creative Commons also does not “require registration of the work with a national copyright agency.”
While copyright protection is automatic the moment a work is created and “fixed in a tangible form,” there are various advantages to register copyrighted works through the United States Copyright Office to establish a public record of the copyright claim. One foremost important advantage of copyright registration is that copyright owners can file an infringement suit of works of U.S. origin in court.
Actually, filing a registration before or within five years of publishing a work will actually put the copyright owner in a stronger position in court to validate the copyright. Additionally, copyright registration enables one to get awarded statutory damages and attorney’s fees and to gain protection against the importation of infringing copies.
The emphasis on a free-to-use license along with the lack of clarification of the functions of copyright registration on the website of Creative Commons may not only mislead scholars to ignore important legal formalities within the copyright law, but also increase the abuse of original materials by stakeholders such as predatory publishers. One example is how the Integrated Study of Marine Mammalsrepackaged existing articles taking advantage of the Creative Commons licenses used by PLOS ONE, which has been publishing articles on digital humanities.
The oversimplified process of using CC licenses advocated by Creative Commons website may also prevent licensors from double-checking or clarifying if they have the legal right to license a work. In 2013, Persephone Magazine, which used an image with a Creative Commons license, was later sued for $1,500 for using it. It turned out the photo did not belong to the person who uploaded it with a CC license, which led to 73 companies who used it being sued. Persephone Magazineclaimed that $1,500 was more than its entire advertising revenue for the year and it had to ask its users to donate just to keep the site going.
Therefore, scholars of digital humanities projects, which usually include different types of content such as artworks and photographs, should be wary of using CC licensed images. Otherwise, a freely available license might end up costing a scholar unexpected money and energy. In the meantime, when deciding to put their projects under CC licenses or to publish their works ina journal that requires CC licenses, scholars should also be reminded to make accurate and clear copyright statements to prevent innocent infringements of other copyright owners’ works. For example, a team of art historians who create an online map of architectures in Ancient China are very likely to use and critique other people’s images in digital projects under fair use. These digital humanists should cite image sources and clarify the scope of the CC license that they apply to their project.
It is understandable that in order to promote an open, sharing culture, the application of a CC license is intentionally designed to be simple and free by Creative Commons to fulfill its mission. However, the misuse of a free license can lead to false licenses and more innocent infringements and ultimately costs. Academic librarians should become aware of these pitfalls and provide more in-depth training on CC licenses to scholars, especially by collaborating with campus centers of digital humanities or language and literature faculty as well as other institutional research support departments as suggested by Fraser and Arnhem.
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Originally published as “Attribution Confusion” with the Creative Commons Attribution 4.0 International license.
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