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The Letter and Spirit of Creative Commons

June 8, 2009

At last week’s Bibliothekartag in Erfurt, Germany, I heard a talk by librarian Nicole Graf from the library at the Eidgenössische Technische Hochschule (Swiss Federal Institute of Technology) in Zürich, Switzerland. It was quite interesting, but also gave me the feeling that some institutions are playing fast and loose with concepts such as open access and legal constructs such as Creative Commons. I’ll try to explain this here, but will caution all that this is a long story.

The ETH library has, as do many libraries, a fairly large image archive, which they have been steadily moving online. Until late last year, they were charging for all usage of their digitized images, at which point they decided to switch to open access and begin applying a Creative Commons Attribution-Noncommercial-No Derivative Works license to their images. At face value this is a good move, and one to be greeted enthusiastically. It quickly gets complicated, however.

The speaker noted that the images which have been licensed under Creative Commons are free for scientific or educational use, which makes sense since that is the purpose of the non-commercial clause of the license they chose to apply. However, she also made it clear that only images with a maximum resolution of 640×640 pixels are free for such use. As she put it on a slide, all commercial uses as well as access to higher resolution images are fee-based.

This is where I began to have doubts.

There is clearly little consensus out there on how a Creative Commons license applies to an image, which of course can have various resolutions. Other formats do not have this issue, such as textual objects, and while video and audio can also have various resolutions, in practice there does not seem to be as much concern about those details. With images, however, resolution is everything. The difference between an original shot taken by a high-quality digital camera, and its 72dpi Web-friendly iteration is night and day. One need only glance at the Flickr and Creative Commons forums to see that people have various opinions on how Creative Commons applies to images (e.g.- here, here, and here – the lack of comment on the last one says volumes about how little we understand this issue).

My objections to the ETH saying that their images are open access under a Creative Commons license boils down to two main points. First, advertising your archive as open access, allowing people to find a low-resolution image, and only at the point where they want a usable resolution telling them that they will have to pay for such an image, is clearly misleading. Open access does not have any strings attached. We don’t publish articles under the open access banner, but leave out the research results and conclusions, noting that those require a payment, thank you very much. Either the entire object, i.e.- in its original form, which in the case of a photograph is its highest resolution, is available, or it’s not open access. It’s semi-open access, which is better than no access (to paraphrase John Willinsky), but a 640×640 image is pretty useless, so not much better.

This brings me to my second objection, that being that Ms. Graf noted at one point during her talk that this low-resolution version was sufficient for scientific and educational purposes. That statement fails to account for how images might legitimately be used for research and education. The example she gave in passing was pasting it into a paper, which is about the lowest common denominator usage of an image one can imagine (although a 640×640 Web image will look terrible in print). What if my usage is for online or large screen presentation? What if I am a scientist who needs only to see one small aspect of the image, not the entire thing? What if my purpose is to do detailed analysis for which higher resolution is necessary? And so on. The library at the ETH seems to have drawn the conclusion that the only reason one would need a larger resolution image would be for a professional print publication, which is a pretty limited understanding of how scholars and students might potentially use an image database.

A somewhat smaller objection is the fact that they chose to add the “no-derivatives” clause to the license. Quoting the Creative Commons site, this means that:

You let people copy, distribute, display, and perform only verbatim copies of your work — not make derivative works based on it. If they want to alter, transform, build upon, or remix your work, they must contact you for permission.

Again, if I am a researcher who needs a small portion of an image to make, say, a point in an online essay on a small architectural detail found in an image, I will need to put that excerpt in my product. The no-derivs license prohibits that unless I contact the archive and request permission, which is annoying for me and pointless work for them.

It is clear to me that the Creative Commons licenses are fairly flexible legal instruments, and that what the ETH is doing does not clearly contravene the fine print of the license, which fails to delve into the issue of image resolution. Hence the title of this post, which questions whether we use and respect Creative Commons for the letter or the spirit of the license. I do not pretend to know the answer, and my somewhat pointed question to Ms. Graf was meant merely to open up this precise topic, i.e.- how they interpreted the CC licenses and if they really thought that offering a poor quality image not suitable for most modern uses of images was actually in keeping with the spirit of both the concept of open access and the spirit of the Creative Commons.

Please let me know your thoughts on this. Perhaps if enough of us raise this topic, some kind of consensus can begin to emerge.

  1. Jamene permalink
    June 9, 2009 19:25

    Having wrestled with the question of what I could/not do with a “no derivative works” CC license where images are concerned, I’d suggest there be a bit more definition of what constitutes a “derivative work” of an image. Do cropping, resizing, zooming, &etc count as derivatives, or are they merely different forms of the same image? I could see why they might be considered derivative, but I can more clearly see a case for defining an image’s “derivative work” as a remix, for want of a better word. Taking an image apart and making it into something new with tools like Illustrator or Photoshop are, to me, the definition of “to derive.” But a crop? I have a harder time with an interpretation that strict.

  2. June 23, 2009 15:58

    Doesn’t sound like open access to me.. To be honest, I have a hard time thinking about something that is “semi-open”.. but wait, ha, you mean “osmotic”!? It seems that I can stretch out my arms and grab the small picture yet the big original is too fat to pull through these semipermeable bars.. However, there is some ugly double moral standard to this ETH approach of “open access”.

    As for the CC, they certainly need some more precision. The German BY-SA translation (“Abwandlungen bzw. Bearbeitungen des Inhaltes anfertigen”) sounds a bit clearer to me than the remix/adapt thingie in the English version. To me these modifications include cropping, resizing, changing colours, even if it’s just reshaping a few pixels. Yes, that does sound strict, but it would a clear definition. Ask a photographer about cropping their pics, Jamene, they’ll probably be offended if you say that the picture is still the same. Still, the photographers of our concert photography project use the BY-NC-SA license for the web pictures (ok, it’s 800x600px max. extensions). The originals are kept offline. Some musicians ask for the photos and we give them the originals. We don’t take money for that, we’re paid with good music. Maybe it’s stupid. But some like us for that and come back to the photographers and even ask for promo sessions. Ok, then we get some bucks for that and don’t refuse them.. 😉

    I think if people would be a bit cooler with their copyleft others might well be more eager to push that “donate” button.. or maybe it’s just my wishful thinking!?


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