You can get paid with Creative Commons too! Why Mira Sundara Rajan gets it wrong

After reading several tweets about it, I finally got round to reading an article by Dr Mira T Sundara Rajan entitled “Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong” in the 1709 Copyright Blog. If I had not read the author before (and enjoyed her work), I would think that we were being trolled. Rarely have I read something that is so utterly wrong in every aspect of its scope and interpretation. From the title, which wrongly assumes that you cannot get paid using Creative Commons, to the detail of the licences and what they entail, Dr Rajan has managed quite a unique feat in completely misunderstanding Creative Commons.

There are several rebuttals in the Comment section of the post, but I felt that I needed to write a longer article answering each claim point by point. One cannot understand the obsession with moral rights in this post without knowing that the author has made a name as an authority on the subject. Consequently, the main thrust of the argument is strangely convoluted: Dr Rajan claims that the United States has little protection for moral rights (true), and that Creative Commons is a licensing solution to that legal shortcoming (wrong). In a very telling passage, she says:

“Today the United States has less legal protection for moral rights than ever. But there is a new alternative venue for moral rights in the United States: Creative Commons. The shortcomings of this alternative are so striking that the Creative Commons phenomenon should be a new and powerful reason for the American government to re-examine the possibility of introducing federal legislation on authors’ moral rights – not because Creative Commons has failed to recognize moral rights – but because it fails to recognize an artist’s right to be paid for his or her work.”

This tells us more about the author than it does about Creative Commons. CC was never created as an alternative venue for moral rights in the US, I would really want to know where Dr Rajan got that notion. Creative Commons was created with the single purpose of allowing creators to share their work UNDER copyright protection through licensing of rights. Nothing more, nothing less. The problem with the article is that it is clear that Dr Rajan is not at all familiar with CC licences and has not even bothered to read one. This is a strong and uncommonly harsh statement from me, but it is evident that this is the case when one reads the description of CC:

“Creative Commons is an extraordinary phenomenon. It has emerged as a true popular alternative to copyright protection – the one functional alternative to established models of copyright law that seem to have failed, in many crucial ways, in the technological context. The basic idea behind Creative Commons is to release one’s work into the public domain, and to do so immediately. All works eventually find their way into the public domain – often as long as 70 years after the death of the author – but releasing your work under a Creative Commons licence makes it possible to send your work instantly into the public domain. In practice, what this means is that you agree to forgo payments for the use of your work. You will receive no royalties from anyone who uses it, and, a point that is equally important from the perspective of copyright theory, no one needs your permission to use your work.”

This is a remarkably misinformed paragraph. CC is not an alternative to copyright protection, it is a copyright licence. The basic idea behind Creative Commons is not to release the work into the public domain, the author is mistaking Creative Commons licences with a very particular brand, CC0, which is a unilateral waiver of all waivable rights under copyright. Moreover, releasing works under CC does not mean that one foregoes the chance of getting paid for one’s work.

When Dr Rajan says that “Creative Commons licences are not perfectly free of conditions”, she is not telling us anything new. The clue is in the name “licence”, by definition, CC allows someone to perform actions that they would otherwise not be able to do under certain legal conditions. What is more frustrating is that there are passages in which the author seems to actually get the licences, for example she seems to “get” the Attribution and the Non Derivatives elements in CC licences, but then she goes and twists the real meaning to make a legal point about moral rights. Moreover, Dr Rajan has clearly read the current discussion about version 4.0 of the licences. Then why does she get the basics so spectacularly wrong? It is almost as if two people wrote the article, one a first year law student, one an established academic. Take this paragraph:

“A pro-moral rights position could involve a degree of fundamental conflict for the Creative Commons movement, since the very idea of the movement is to create a realm where works can be “freely” disseminated. The comments on the Creative Commons information website suggest that, on some level, where moral rights are concerned, Creative Commons just doesn’t get it.”

I put forward that the one who does not get it is somebody else. The current discussion of the draft is nowhere near what is claimed, and the moral rights approach will not be affected.

But the worst part of the article is connected with the title. Dr Rajan claims:

“The real problem with Creative Commons is that it disposes of the copyright system without, however, providing an answer to the all-important practical question of how artists are to survive. In the United States, artists who want moral rights can opt for licensing their work through Creative Commons, but (unless they choose to license only a few select works to benefit from “free advertising”), they cannot expect to enjoy moral rights protection and earn money from their work at the same time. Welcome to the future?”

I cannot begin to unravel this mess. Obviously, CC does not dispose of the copyright system. Because CC works under copyright, the question of how artists are to survive is completely moot. I have published several blog posts dealing precisely with this point, licensing under Creative Commons does not affect one’s capability of earning money for one’s work. The growing number of authors publishing books with CC (Yours Truly included) attests to the fact that it is possible to do both. But perhaps more importantly, choosing CC is not a dichotomy between enjoying moral rights and earning money.

As the article proved too controversial, the 1709 blog published a Rejoinder. This seems like a half-hearted attempt to backtrack on some of the factually wrong comments. For example, it states:

“During the past 10-15 years, while this transition from the old publishing world to the current digital scenario has been happening, only one viable alternative to traditional copyright protection has been proposed. That new model is CC.”

Notice the important addition of the word “traditional” here. However, she repeats the same statement without evidence:

” CC has its place; as noted in my blog post, it is well-suited for so-called “amateurs” or people who, for various reasons, do not need or want to earn money from the publication of their work.  […] What seems to have roused the ire of the commentators on my post is my belief that CC is a non-commercial way of publishing one’s work. I have not seen anything in any of the posted comments to change my understanding of how CC works.”

Once more, publishing under CC does not mean that one does not want to earn money from one’s work. This view is so ingrained in some people’s thinking that even after it has been pointed out that it’s wrong, it continues to exist. Allow me to offer a list of commercial books under CC (I won’t even go into music and other creative endeavours):

• Little Brother
• The Public Domain
• The Wealth of Networks
• The Future of the Internet
• Code 2.0
• Virtual Justice
• Net Neutrality in Europe

These are just the ones in front of me.