Development of Creative Commons licenses

["Brian Clark" <bclark AT radzone.org>]

Elisabeth Riba wrote:

>I know this is a novice question, but I can't seem to find the answer
>offhand.

I don't think it's a novice question at all, it's one of the biggest
problems I have right now with the way bloggers use CC licenses and (c)
licenses.

Chris Morris wrote:

>If I'm allowed to quote it under fair-use (assuming it is fair-use),
>everyone else should be allowed to make the same quote on their own,
>therefore there's no need for such a disclaimer.

I am not a lawyer either, but as a publisher that both relies upon fair use
and gets quoted alot via fair use I wrestle with the question alot.
Everything I've read tells me that fair use is evaluated on an instance by
instance basis, it's not a transferrable right. One person might be quoting
for the purpose of news or criticism, but another person (perhaps granted a
derivative license under CC) might be using it in a totally different way
and not be a "fair use" at all.

This isn't a problem with CC licenses, in my opinion ... things are just as
foggy with traditional copyright. As an example, look at a post like this:

http://indiefilm.weblogsinc.com/entry/7784681823623336/

109 words of quote from my website, supposedly "transformed" by the addition
of five words at the beginning that just describe where the quote is from,
the whole thing (c) 2004 by a commercial company.

Fair use? Who the hell knows -- but then I'm not the kind of publisher that
obsesses over that kind of "blog as pointing out someone else's writings".

But what if a more direct competitor in print did the same thing and did it
with a news entry like:

http://indiefilm.weblogsinc.com/entry/3756419217675054/

82 words from us, the same five words from them ... but imagine it in a
print magazine we "compete" against like Variety. Much harder to imagine it
as "fair use" ... especially if I wanted to do the opposite and run an
article from them that was just a big quote.

Elizabeth, I know that what I've said probably doesn't make it any simpler,
but I'm not convinced there are any simple answers ... and "fair use" just
isn't something that's contemplated inside the framework of CC licenses. In
many ways, what kind of sharing your imagining doing under CC is really the
determining factor: in some cases, "fair use" might even trump the CC
license (as in I could still quote "fair use" in a commercial context from a
CC license that says "no commercial use") or be trumped instead (if you say
"no derivs", for example, you might have actually married the quotes to
their "fair use" context.)


Brian Clark
 http://www.radzone.org/bclark/