Platforms are eating CC licenses

This text was originally published on Medium.

What is the value proposition of Creative Commons licensing? What is the challenge that we are solving? And how has this changed over the last decade, as the online ecosystem has deeply transformed?

Those are the questions that we asked ourselves at a recent Centrum Cyfrowe team meeting, while we were planning a new project that raises awareness about free licensing and other aspects of copyright. We started with the question of what is the added value of having CC licensed Youtube content, from the perspective of the users of the platform? The conversation led us in an interesting, and even surprising, direction.

(I began writing this essay at the end of the 2019, and allowed the ideas to percolate for a while. I asked myself, in these new normal times, is this relevant? I think that even more so. Open collaboration will be more important then ever for solving this global crisis. But the roadmaps and blueprints that our movement has our outdated. New ones will be needed soon).

Illustration: Joanna Tarkowska.

Signaling and building value in the open

Creative Commons licensing fulfills, broadly speaking, two possible functions. A pragmatic function of providing added value to users and creators, by enabling broader and more intensive use and reuse of valuable content. And, secondly, a political function of signaling the need for a more flexible copyright system and support for necessary change in this direction.

The first function is crucial, as the Creative Commons project has a pragmatic aim of enabling creativity. The licenses enable this creativity by granting particular copyright permissions in advance. But this adjustment of the copyright status of a work is not a goal in itself. It’s the positive effects, enabled by weaker and more flexible copyright protection, that ultimately matter. These greater goals are usually framed in terms of some type of user freedom or right: liberty, access to knowledge, equity, etc.

So what is the pragmatic value of freely licensing Youtube content? The service allows creators to CC license content that is uploaded to the platform, and almost 50 million videos were CC licensed by 2017, according to the latest State of the Commons report. Do we obtain the gains envisioned by the free licensing model?

There is a significant amount of reuse and remixing happening on Youtube. Some of the popular channels and formats heavily depend on the ability of its creators to incorporate content outside of what they are recording/creating themselves. So in theory the need for freely licensed content would be high.

But in practice - the same as with many other types of cultural content - the right to remix on Youtube is secured primarily not by free licensing, but by other mechanisms. In the case of Youtube, these are:

• Content ID, the technical system that gives rights holders control over reuse of their works, including the possibility to monetize such reuse - and by virtue of this gives users the right to reuse content without prior permission;
• The quotation right, which in most cases provides sufficient legal rights to reuse the videos created by others, as demonstrated by the variety of videos legally available on Youtube that include copyrighted creativity. (I should note that this quotation right might also play a secondary role to the code-based regulation of the Content ID system).

50 million CC-licensed Youtube videos are a large pool of content - but its nevertheless a miniscule amount compared to over 5 billion - which is the estimated overall number of uploaded videos. This metric itself shows the limited impact of CC licensing on Youtube.

But even in case of the millions of CC licensed works, there is little proof that the licensing provides added value - which would need to stem from content reuse. As access rights are in principle ensured by the platform and the relatively open functionalities coded into it.

The tragedy of licensing in walled gardens

Thus user rights are being managed by a technical - not a legal - system. Youtube’s machinery is the enabling - even if at times faulty - mechanism. This means that some of the uses made possible by legal mechanisms (fair use provisions / exceptions or free licensing) are not made possible by Youtube’s code. And in turn, some uses enabled by content ID might fall beyond what the legal system would consider within the scope of quotation right (or some other exception to copyright).

Importantly, content is rarely copied from Youtube; everything happens on the platform. Downloading videos or copying them to another platform is not a functionality that Youtube provides. While possible, these functionalities are provided by third party tools, which often work in a legal grey area. Downloading and copying become fringe activities in a culture dominated by Youtube, and historically it has been these acts that CC licensing was meant to facilitate.

More generally, free licensing is not well suited for enabling creativity to users of social media. Of course, this is not a fault of the licenses themselves. Rather the platform ecosystem is structured in a way that makes legal mechanisms ineffective. Firstly, the scope of possible use is fixed in code, on which the platform apps and services run. Platforms, of course, need to conform to boundaries defined by law, but these create a lot of space for platforms to structure their own ecosystems. In this way, platforms build their own ’law’ and ignore traditional legal structures - including CC licenses.

Secondly, social media create ecosystems where everything is meant to take place only within the coded communication space of a given online service. The boundaries of these spaces are strongly guarded, as demonstrated by Instagram’s curbing of hyperlinks or Facebook’s warnings displayed upon leaving its webpage, while following a hyperlink. Yet within these boundaries, platforms at the same time support high levels of creativity and aim to have monopoly on defining rules that their content ecosystems follow. It is time to acknowledge that these ecosystems might make CC licenses no longer fit for fulfilling their purpose.

Remixing without the right to remix

While copying of content is either limited or made impossible in these ecosystems, remixing is strongly supported. Not because of its intrinsic cultural value, but because it generates uploads, views and clicks, and ad revenue.

In this way, online platforms enable creativity that happens at a massive scale - think hundreds of millions of TikTok influencers, or over a billion Instagram’s amateur photographers. Their creativity is based on:

• Publication of original content, like Instagram photos;
• Remixing with content provided by platforms, like filters or stickers;
• Reusing content in ways strictly controlled by the platform - think platforms with extremely narrow forms of allowed creativity, like Vine.

TikTok could be seen as the quintessence of remix culture. Yet the remixing is enabled not by free culture tools, but rather by commercial provision of raw materials (music used in TikTok videos) and user creativity that is strictly bound by the limitations coded into the TikTok app.

In such an environment, the pragmatic value of CC licensing is very limited. It becomes largely an ideological activity without a clear pragmatic goal. Name any popular contemporary social media platform: almost every one of them has very little need or rationale to incorporate free licensing. Nor do their users obtain any pragmatic value out of the CC licensing. Even worse, platform UX usually downplays or even omits copyright licensing information - which is the functional basis for successful CC licensing.

Worse still, the signaling function is also limited. As such, free licensing of content has not provided a meaningful evidence base for copyright reform advocacy: the argument that millions of works are CC licensed has not been successfully used as proof that a more flexible or permissive copyright system is needed.

Searching for platform-free ecosystems

There is still significant value in CC licensing, but only in those content ecosystems that have not yet been dominated by online platforms - the way the mainstream cultural and information landscape has been. These are largely professional and institutional environments.

CC licensing is still important for cultural heritage institutions, teachers and educators, or researchers and librarians (with the caveat that in the cultural sector the only useful tools are CC0 and the Public Domain Mark). And in general, there is significant rationale for opening content that is generated or funded by public institutions. There are also some unique cases - bloggers continue to be an important target group (together with the still decentralized blogging ecosystem).

This is due to several important differences between institutional and platform ecosystems. In the former, content circulation is not yet enclosed by the dominant platforms. For example, while heritage institutions may use commercial platforms like Facebook or Instagram for communication and outreach to their users, they typically have other, bespoke solutions for managing and sharing their content, such as the Europeana platform. As opposed to Youtubers, who are dependent on the platform for content publishing.

Or consider academic libraries that provide open access repositories for the publishing of university research, or open access scholarly publishers that make research immediately available under CC licenses. Another example is the use of freely licensed Open Educational Resources by educational institutions and publishers. This is a hot topic in the United States precisely because of attempts - by educational publishers - to replace the current landscape with a platform ecosystem. Until this happens, licensing conditions still matter.

The professional and institutional use of content is still more strongly regulated by copyright law than platform code. There are greater consequences to breaking copyright law in professional life than as an amateur creator functioning in a platform ecosystem (I’m putting aside here outright copyright piracy). In these ’traditional’ ecosystems, copying content is still a viable option: educational publishers copy content from OER repositories, Open Access models enable flow of content between different academic publishing and library systems, and text and data mining practices treat copying of data as a crucial functionality. In these contexts, legal solutions are needed to mediate content usage rules between different proprietary platforms and environments.

Have we lost the fight for individual creativity?

Several years ago, it was already pretty clear that content sharing and distribution models based on CC licensing would not be a viable business option in the creative sector. And this happened despite the fact that there was a need for a “third way” - an approach positioned between the strict, locked down control of the creative industries on one hand, and overt content piracy on the other.

Music creation is the best case in point. A decade ago, we believed that free licensing might be the foundation for musical creativity in the digital environment. Today, there is significant reuse and remixing of content, and most of it is available on Youtube, Soundcloud or Bandcamp. But little of it is CC licensed (beyond a narrow margin of creators and communities that flocked to sites like the Free Music Archive and the netlabel movement). CC licensing is not even secured on the indie strongholds of online music, like Soundcloud or Bandcamp. Coded functionalities have proven to provide stronger pragmatic gains for creators and users than legal tools do. And the right to remix has been secured by other means than flexible licensing - for better or worse. The case of Bandcamp furthermore proves that solving the issue of funding and sustainability of creators is more important for supporting creativity than licensing matters.

Yet a large part of the Creative Commons mission is still about enabling individual creators. Currently, the CC strategy focuses on the sharing (and discovery) of photographs and visual works. “Over a billion works shared under a CC license” has been an important argument to showcase the success of free culture, even though, if we’re honest, we recognize that the significant majority of these works are photographs, which today are easily produced in billions by smartphone users.

A billion is still a big number and demonstrates the existence of a viable ecosystem, centered around such platforms as Wikimedia Commons, Flickr, or the Internet Archive. Yet the uses of these free resources are again more professional than not. Freely licensed photos are needed by Wikimedians and bloggers more than by users posting photos to Instagram. That is because they lack spaces where they could meaningfully make use of the rights provided by free licensing, and all their needs are met within the social media ecosystems, despite their limited functionalities.

Wikimedia is of course a crucial outlier - a content powerhouse whose existence, as a top web property, makes the whole internet just a bit less dominated by commercial platforms. If we look carefully, there is a sign that Creative Commons has in recent years been most successful in institutional environments - and has been adjusting its strategy accordingly. The CC Certificates program is clearly tailored to meet the needs of professional users, who require certification of skills for their institutional environments. The focus on GLAM institutions (something that my organization, Centrum Cyfrowe, has been doing for years) is also a strategy that prioritizes institutional users - and still searches for ways of enabling significant reuse of heritage content.

In the field of copyright advocacy, the effort to improve exceptions and limitations is largely focused on those rules that apply to institutional uses in education, heritage or academic sectors. The focus of Communia on exceptions for User Generated Content and on the filtering clauses of article 17 is an exception to this rule. In the introduction to the Polish edition of “Free Culture”, Lawrence Lessig wrote about “hundreds of thousands of small victories” needed to attain change. The decision to CC license a work, made by an individual rights owner, is such a small victory. It is slowly time to admit that a multitude of small victories is not enough in face of monopolistic power.

Ways forward: can free culture swallow the platform ecosystem?

If platforms have indeed eaten CC licensing and replaced it - within their ecosystems - with technical means of regulating sharing and creativity, then CC and the free culture movement face two possibilities.

One is to focus on the professional and institutional environments of the educational, academic, and heritage sectors. These are not yet dependent on the most dominant platform, and legal tools like CC licensing can still shape content flows and ecosystems. Open Access is the best example of a significant success, attained through activism based on a successful, long-term strategy. Yet this feels like a significant narrowing of ambition. Also, in the long term, we should expect dominant platforms to reach into these ecosystems - we already see signs of this in debates about commercial capture of OERs, for example.

The second option is to define a new strategy. This should be based on the original mission of enabling user freedoms by reducing barriers to sharing and remixing of culture and knowledge, but acknowledging at the same time the role of platforms in contemporary creative ecosystems. To do this, the CC movement needs to admit that tools designed to reduce barriers in the year 2000 might not be effective today. If indeed platform options have eaten free licenses, then a new strategy for securing user rights should tackle head on the specificity of platform ecosystems.

This strategic pivot has already been initiated by these CC activists (the group includes myself) that have engaged in advocacy against content filtering proposals in Europe. By criticizing content filtering from the perspective of user rights, we highlight the fact that barriers to sharing today take the shape of technical solutions implemented by online platforms. Within this European debate, there is no space to make a meaningful argument about free licensing. And this debate requires stronger engagement and support from key open movement organizations.

In the spirit of CC’s original approach to bottom-up infrastructural solutions for sharing, this new strategy should include not just a reactive defense of sharing through advocacy and activism, but also pro-active shaping of solutions in the platform space. The tools that enable sharing need to be embedded today in platform infrastructure - and this requires going beyond the “share this under a CC license” check box (typically hidden somewhere in account settings).

Public domain as content portability

In principle, Creative Commons licensing could become a cornerstone of content portability. The vision of free culture, expressed in the 2020s, could be a vision of enabling not content downloading, but content and data portability.

But this cannot be ensured by licensing alone, as key functionalities of online ecosystems are today embedded in code. Because of this, CC licenses used in platform ecosystems often lack their pragmatic function.

We need to acknowledge that code indeed became law, and the sharing and remixing that we want to see is enabled today foremost by app functionalities. Content and data portability is the next big regulatory debate, as policymakers explore ways of breaking platform monopolies and rebuilding a healthy online ecosystem. This is very much visible in Europe as, in 2020, European policymakers and regulators are compiling the Digital Services Act, which is supposed to provide a significant shift in approach to online regulation.

There is therefore space for the Creative Commons community to make an important argument about “open as in interoperable”. We might also consider positive externalities of freely licensed content that we have not considered before- for example not just cultural remixing, but vetting of content as we fight disinformation. This requires seeing open licensing as closely connected not just with copyright and creativity, but also democracy and the public sphere.

A growing debate, conducted under the themes of “interoperability” and “right to own data”, concerns creating rules for sharing of content and data in the platform environment. In Europe, a growing number of voices are speaking in favor of public platforms that can create a not-for-profit alternative to dominant commercial platforms. If Creative Commons wants to continue to support online creativity as well as user rights, it needs to look beyond licenses and join this effort.

Twenty years after its birth, Creative Commons needs to admit that it is an incumbent, at risk of being creatively destroyed by competition that rapidly grew in just one decade. Like any incumbent with a potent position, we’ve grown accustomed to success, and to growing numbers of CC licensed works. It is time to build on this success by defining a new theory of change, enabled by Creative Commons, for the next twenty years.

Thank you to Ola Janus, Paul Keller and Tim Vollmer for providing valuable feedback to an early version of this text. A hat tip goes also to Marc Andreessen for coining in 2011 the brainworm of a phrase that I rephrase in the title.