Suppose you’re a musician. You put your songs up on SoundCloud to get exposure for them. Later you find out that SoundCloud has started a program for selling your music as high-quality CDs and giving you none of the proceeds. Or suppose you’re a writer who put your serialized novel up on WattPad; then you find out that WattPad has started selling it in a coffee-table-worthy hardcover edition and not sharing revenue with you. The odds are that in either case you would not be thrilled.
Yet those are rough equivalents of what Flickr, the Yahoo-owned photo-sharing site, has been doing with its Flickr Wall Art program. Flickr Wall Art started out, back in October, as a way for users to order professional-quality hangable prints of their own photos, in the same way that a site like Zazzle lets users make t-shirts or coffee mugs with their images on them (or Lulu publishes printed books).
More recently, Flickr expanded the Wall Art program to let users order framed prints of any of tens of millions of images that users uploaded to the site. This has raised the ire of some of the professional photographers who post their images on Flickr for the same reason that musicians post music on SoundCloud and similar sites: to expose their art to the public.
The core issue here is the license terms under which users upload their images to Flickr. Like SoundCloud and WattPad, Flickr offers users the option of selecting a Creative Commons license for their work when they upload it. Many Flickr users do this in order to encourage other users to share their images and thereby increase their exposure — so that, perhaps, some magazine editor or advertising art director will see their work and pay them for it.
The fact that a hosting website might exploit a Creative Commons-licensed work for its own commercial gain doesn’t sit right with many content creators who have operated under two assumptions that, as Flickr has shown, are naive. One is that these big Internet sites just want to get users to contribute content in order to build their audience and that they will make money some other way, such as through premium memberships or advertising. The other is that Creative Commons licenses are some sort of magic bullet that help artists get exposure for their work while preventing unfair commercial exploitation of it.
Let’s get one thing out of the way: as others have pointed out, what Flickr is doing is perfectly legal. It takes advantage of the fact that many users upload photos to the site under Creative Commons licenses that allow others to exploit them commercially — which three out of the six Creative Commons license options do. It seems that many photographers choose one of those licenses when they upload their work and don’t think too much about the consequences.
Flickr does allow users to change their images’ license terms at any time, and more recently it expanded the Wall Art program to enable photographers to get 51% of revenue from their images if they choose licenses that allow commercial use. But currently that option is limited to those few photographers whom Flickr has invited into its commercial licensing program, Flickr Marketplace, which it launched this past July. Flickr Marketplace is intended to be an attractive source of high-quality images for the likes of The New York Times and Reuters, and thus is curated by editors.
Some copyleft folks have circled their wagons around Flickr, maintaining that it shows yet again why content creators should not expect copyright to help them keep control of what happens to their work on the Internet. But that’s a perversion of what’s going on here.
Flickr is — still, after ten years of existence — a major outlet for photos online. As such, Flickr has the means to control, to some extent, what happens to the images posted on its service; and with Flickr Marketplace, it is effectively wresting some control of commercial licensing opportunities away from photographers. Some degree of control over content distribution and use does exist on the Internet, even if copyright law itself doesn’t contribute directly to that control. The controllers are the entities that Jaron Lanier has called “lords of the cloud” — one of which is Yahoo.
This doesn’t mean that Flickr is particularly outrageous or evil — although it’s at least ironic that while these major content hosting services claim to help content creators through exposure and sharing, Flickr is now making money from objects that are not very shareable at all. (In fact, what Flickr is doing is not unusual for a mature technology business facing stiff competition from new upstarts on the low end of the market — Instagram and Snapchat in this case: it is migrating to the premium/professional end of the market, where prices and margins are higher but volume is lower.)
The problem here is the lack of both flexibility and infrastructure for commercial licensing in the Creative Commons ecosystem. Creative Commons is a clever and highly successful way of bringing some degree of badly-needed rationalization and automation to the abstruse world of content licensing. But it gives creators hardly any options for commercial exploitation of their works.
Several years ago, Creative Commons flirted with the idea of extending their licenses to cover terms of commercial use (among other things) by launching a scheme called CC+. A handful of startups emerged that used CC+ to enable commercial licensing of content on blogs and so on — companies that, interestingly enough, came from across the ideological spectrum of copyright. One was Ozmo from the Copyright Clearance Center, which helped with the design of CC+; another, RightsAgent, was started by the then Executive Director of the Berkman Center for Internet and Society at Harvard Law School. Yet none of these succeeded, and it didn’t help that the Creative Commons organization’s heart wasn’t really in CC+ in the first place.
But the picture changes — no pun intended — when big content hosting sites start to monetize user-generated content directly instead of merely using it as a draw for advertising and paid online storage. Ideas for automated licensing of online content have been kicking around long before Flickr or CC+ (here’s one example). Licensing automation mechanisms that can be adopted by big Internet services and individual creators alike for consumer-facing business models are needed now more than ever.
Actually, that’s perhaps the single biggest controversy surrounding Creative Commons: that the non-commercial clause is too broad, preventing the use of, say, a photo to illustrate a personal blog just because the blog carries one lousy ad (which actually doesn’t even make money), while without the same clause *any* commercial use is allowed, even those that are clearly abusive, as in this case. Because, to be perfectly clear, what Yahoo is doing here is as legal as it gets; but it’s also fundamentally immoral. They shouldn’t need a sword dangling over their heads to share their revenue with every artist whose works they sell.
But that’s the problem with this brave new corporate world, isn’t it? Nobody seems willing to look beyond the letter of the law and the next quarter’s profits anymore. And then they wonder what everyone is upset about.
Wait, so how we feel about it matters after all? Go figure.
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