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Cardozo Arts & Entertainment Law Journal

Abstract

Since its inception, Creative Commons has introduced new ways for creators to grant licenses to the public without cost or the need for negotiation by breaking up rights provided by copyright and making a subset of those rights available to anyone willing to abide by the conditions of the license. Its widespread adoption has democratized open licensing for creators beyond the software context these licenses originated within. Although the success of Creative Commons as a community is plain, relatively little information is available about its perception by the general public. Aggressive litigation by Creative Commons licensors has put the organization in a peculiar position: publicly clarifying that they would prefer licensors not enforce their rights when licenses are breached.

This stance raises questions about whether members of the public perceive Creative Commons licensors as less likely to enforce their copyright. This Article presents insights from a novel survey experiment of over 1,200 participants applied to theoretical debates and prior cases dealing with the licenses. The survey evaluates the public's recognition of Creative Commons before dividing participants into three groups: a control group with a standard copyright notice, a treatment with an abbreviated Creative Commons license marking, and a treatment with a short primer on Creative Commons and a full text license caption. These three groups are presented with seven short scenarios presenting re-use in different contexts, modeled on common fact patterns in copyright litigation as well as leading cases on Creative Commons, and asked about the likelihood of legal action, their estimate of the legal consequences under the current law, and their evaluation of what the consequence should be.

While knowledge of Creative Commons among the public is relatively low, with almost 60% of the sample reporting no familiarity with the licenses, Creative Commons-licensed material is notperceived as less likely to be enforced or subject to lesser penalties. Survey results estimate about 7% ofthe U.S. adult population accurately recognizes the Creative Commons logo and about 25% have some knowledge ofthe organization. Using full-text license terms and a short primer on Creative Commons increased respondent estimates of the severity of legal consequences under current law as well as their estimate of preferred legal consequences for infringement. Support for greater consequences for copyright infringement is in tension with Creative Commons' ideological goals of a more permissive creative culture. In sum, results suggest licensors who want the terms of their license respected should prioritize the use offulltext license descriptions that provide more information about the license terms and provide any opportunities available for potential licensees to understand Creative Commons. This research also demonstrates that the public's attitudes on Creative Commons can be influenced even with less than a minute of education on its use and purpose.

Disciplines

Contracts | Intellectual Property Law | Law

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