Wednesday, March 05, 2014

A Creative Commons rights infringement case study (involving my work)

Last week, friends alerted me that one of my online artwork was used by a Facebook page owner without crediting me.

The artwork was licensed under a Creative Commons ATTRIBUTION license. All the user had to do was credit me and he would be free to modify, repurchase, even sell the image. I did not specify any specific way for attribution. As long as the user made a reasonable attempt, it would have been fine.
"Angry Civet Cat" (#143: Project 365 Sketches)

But the page owner didn't credit me. My name in the image had also been cropped out.

I wrote the FB page owner a private FB message. In it, I identified myself as the image creator and I requested (not demanded) that he remove the image. I explained that my image was created as a subtle protest against the commercial harvesting/ exploitation of civet cats half-digested coffee beans. His Facebook page was, ironically, promoting the sale of "Kopi Luwak" coffee beans.

There was no response after 2 days, so I left a public comment on the (modified) image he posted in his page album. I gave him the benefit of doubt that he might have missed my mail. My comment only asked if he had received my message. I did not want to embarrass him by publicly saying he had (inadvertently or otherwise) infringed on my rights.

A day later the comment was deleted.

case study - CC rights infringement #1 case study - CC rights infringement #2 case study - CC rights infringement #3

Now, CC licenses cannot be revoked. If the fella had credited me in a reasonable way, all would have been dandy.
Once you apply a CC license to your material, anyone who receives it may rely on that license for as long as the material is protected by copyright and similar rights, even if you later stop distributing it.
Source: wiki.creativecommons.org/Considerations_for_licensors_and_licensees#Irrevocability

Under CC (or CC-BY, in my case), even if I was uncomfortable with my image used that way, he still had every right to reuse it. I respected that right. That said, it was also within my rights to ask that I am not credited with the image if I felt strongly about it.

The CC-FAQ covers this issue quite clearly:
What can I do if I offer my material under a Creative Commons license and I do not like the way someone uses it?
As long as users abide by license terms and conditions, licensors cannot control how the material is used. However, CC licenses do provide several mechanisms that allow licensors to choose not to be associated with their material or to uses of their material with which they disagree.

First, all CC licenses prohibit using the attribution requirement to suggest that the licensor endorses or supports a particular use. Second, licensors may waive the attribution requirement, choosing not to be identified as the licensor, if they wish. Third, if the licensor does not like how the material has been modified or used, CC licenses require that the licensee remove the attribution information upon request. (In 3.0 and earlier, this is only a requirement for adaptations and collections; in 4.0, this also applies to the unmodified work.) Finally, anyone modifying licensed material must indicate that the original has been modified. This ensures that changes made to the original material--whether or not the licensor approves of them--are not attributed back to the licensor.

Source: wiki.creativecommons.org/Frequently_Asked_Questions#What_can_I_do_if_I_offer_my_material_under_a_Creative_Commons_license_and_I_do_not_like_the_way_someone_uses_it.3F

Had he bothered to discuss with me, I would have explained CC to him, and what were his rights were as well.

But his intentions was obvious by that time. I reported to Facebook with necessary details. Facebook took down the image fairly quickly.

What happens if I offer my material under a Creative Commons license and someone misuses them?
A CC license terminates automatically when its conditions are violated. For example, if a reuser of CC-licensed material does not provide the attribution required when sharing the work, then the user no longer has the right to continue using the material and may be liable for copyright infringement. The license is terminated for the user who violated the license. However, all other users still have a valid license, so long as they are in compliance.
Under the 4.0 licenses, a licensee automatically gets these rights back if she fixes the violation within 30 days of discovering it.
If you apply a Creative Commons license and a user violates the license conditions, you may opt to contact the person directly to ask them to rectify the situation or consult a lawyer to act on your behalf. Creative Commons is not a law firm and cannot represent you or give you legal advice, but there are lawyers who have identified themselves as interested in representing people in CC-related matters.
Source: wiki.creativecommons.org/Frequently_Asked_Questions#What_happens_if_I_offer_my_material_under_a_Creative_Commons_license_and_someone_misuses_them.3F

The version 4.0 CC license goes a step further to say:
Modifications and adaptations must be indicatedIn the 4.0 license suite, licensees are required to indicate if they made modifications to the licensed material. This obligation applies whether or not the modifications produced adapted material. As with all other attribution and marking requirements, this may be done in a manner reasonable to the means, medium, and context. For example, "This section is an excerpt of the original." For trivial modifications, such as correcting spelling errors, it may be reasonable to omit the notice... ...Source: wiki.creativecommons.org/License_Versions#Modifications_and_adaptations_must_be_marked_as_such

REFLECTIONS
If you really, really want to protect your work, or the intent behind your work, against such IP violations, the surest way is NOT to share anything online. Or share it anywhere, for that matter. But that's impractical and also give rise to a false sense of security. For instance, if you licensed your work in a legitimate contractual agreement (e.g. artwork in a poster for public display), how can you possible ensure that others will not take handphone pictures of your work and make unauthorised copies?

The key issue here is really about discovery (or lack of) IP rights violation and subsequent enforcement. E.g. costs of pursuing legal action. But such an issue existed long before CC came into the scene. You may not adopt CC for your work, and you would still face this issue when someone uses your work without your permission.

For me, the great thing about CC is that there is greater clarity of rights and obligations. With CC, and of course the prep work done by the folks who maintain the CC FAQ and licenses, there's less room for ambiguous interpretations compared with the typical Copyright legalese. I was very clear on the steps to take, and confident that I had the CC terms to refer to (Note: CC is not an alternative to Copyright; CC is built on the foundations of Copyright).

Will this incident stop me from licensing my art and music under CC? No, not at all. I'm reminded of these lines of poetry from the poet Rumi: "Do not burn a blanket because of a flea..."

Will I be uncomfortable if the said party reinstates the image, with credits to me? Ultimately, no. Anyone who is that obtuse -- as to use a image that is AGAINST the business he/ she is in -- is either a genius or someone who does not warrant my time or attention. I believe there are enough people who have benefited from CC licensed works and are using them correctly. Besides, once I've made a decision to license a work under CC, I can and will only look ahead.

What if the said party re-posts the modified image, this time with attribution? Doing it out of spite, perhaps.

I've no problem with that. Because CC (version 4.0) allows the "violation" to be rectified within 30 days. Still, my rights do not change. I can accept the attribution, or ask for the attribution to be removed. If the user does not comply with that, it is a violation of terms.

Knowing that such conditions are attached to CC-licensed works gives me that additional assurance on what my rights are, if I find that my intent (conveyed through the work) has been misrepresented.

How I would pursue the matter is, of course, a separate decision.

Increasingly, in a vastly connected world, there are also social norms to contend with. Enforcement is not always about the law. It will be obvious to people that someone's goodwill has been taken advantage of.

As they say, (online) reputation is everything.