Creative Commons in the Legal Space

Creative Commons licences (also commonly referred to as CC licenses) are a less-restrictive alternative to those in the traditional copyright system. Since 2001, they have been used to encourage collaboration and create a space to allow for the public sharing of information.

There are a number of different licences, each with varying levels of restrictions, but with the overall goal of allowing people to share and build upon the work of others. Permissions to use the creator’s work are granted up front and to everyone. The Creative Commons organization has created a system of open licences using plain language and easy to remember symbols. CC licences’ symbolic and simple nature sets them apart from other licences which can often be complicated and confusing. On the flip side, communicating licences this way leaves room for interpretation. This can be good because it allows for each community to apply them within their context, but at the same time, it can cause miscommunications on how they’re used. In a U.S. case last year of Great Minds vs. Office Depot, we see an example of the interpretation of “non-commercial” use causing friction in the community because of third party commercial players involved in the implementation of a CC BY NC licence.

How open licences are used with legal information

While law may not be the most prominent discipline using open licensing, and Canada, not the leading player on the international map of open access, the legal environment in Canada does have initiatives and is engaged in developing open legal practices.

Open resources on Canadian law can be found within many institutions (in Canada and beyond) who are visible about their use of open licensing, such as the Internet Archive Canada, BCCampus, eCampusOntario, Athabasca U (as well as many other Canadian Universities, their presses and institutional repositories), open government initiatives, nonprofits like CanLII, forprofits like SpringerOpen or Elsevier’s SSRN. Let’s also not forget the less visible ways open licensing is used, like the individual faculty members creating open textbooks, the students who use those open resources, self-publishers who choose a CC licence etc.

To give a small example from CanLII, when we receive submission for the CanLII Authors Program, we provide authors with two sublicensing options, CanLII’s standard sublicence and a Creative Commons licence (Attribution-NonCommercial-NoDerivatives 4.0 International licence). Approximately 1 out of every 5 submissions to the CanLII Authors Program so far has chosen a CC licence and the rest go for the standard sublicence. Although this is just a small sample, it brings up a few questions. Why are these legal professionals less likely to choose a CC licence? Is this reflective of the greater legal community? Overall, why do some lawyers and legal professionals choose a CC licence and others do not?

From my own reading and reflections, I’ve listed some possible reasons why I think authors void the CC licence option and why some choose it.

Possible reasons why they do not choose the CC licence option include:

• They might not be familiar or comfortable with CC licences.
• They may have some fear of having their work exploited.
• They feel there are fewer incentives to having their work published under a CC licence compared to another.
  • Some legal issues might be specific to a jurisdiction’s laws and only of interest to the practicing lawyers in that area, creating less incentive for the use of a global sharing system.
  • You could argue that legal scholarship doesn’t have the same time pressures as scientific research in becoming open immediately)
• Maybe they feel it’s just not the right licence for them and their work.

Possible reasons why they choose the CC licence option:

• They have an awareness of Creative Commons and want to support their mission.
• They want to increase their readership and expose their work outside their normal circles.
  • The law affects more than just the lawyers who practice it. The public, SRLs and policy makers all benefit from access to legal information.
• They understand it opens doors to collaboration.
  • The use of open legal resources provides easy access to the law and legal materials when conducting nation-wide research events fueled by collective brain power, for example.
• They want to ensure they get credit for their work, have control over what types of organizations can use their content, and can set limits on how much their work can be modified.
• John-Paul Boyd can give you some more great examples.

What is the future of CC licences in law?

There are variations to openness and open access. Using the Creative Commons licences isn’t the only option, but it’s a very legitimate one if you decide to go the open route, and a good starting measure for “openness” in a given area.

If we really want to understand how CC licensing is used in the legal environment in Canada we can’t just focus on the behaviours of lawyers and legal professionals. Legal publishers, institutions, funding agencies, societal norms, licensing tools, law students, faculty, law societies and so much more all play a part in the process.

We’re still in the beginning stages of exploring the applications of open licensing in law, which presents us with a unique opportunity to take it in whatever direction we choose.