So an earlier post led to quite a discussion about the use of licences within Flickr (thanks Abi and David) . I’ve been considering the issue a bit further, and as there were several searches in my logs for ‘are flickr photos in the public domain’ (ranked 4th in my Google results), I thought I’d address the topic further.

First, the answer to the question the person is googling is the lawyer’s favorite ‘it depends’. In general terms, copyright subsists whenever a work is fixed in a tangible medium of expression. This is the standard US saying, but it generally applies in one form or the other throughout the world.

Flickr has included the ability to select licence information when people post their pictures. When posting, Flickr gives the following options:

• No licence – All rights reserved. This basically means that you should assume that you need to ask permission from the creator/owner to use the work for the vast majority of uses.
• The six standard Creative Commons licences. These licences grant you the right to do certain things, such as create ‘derivative works’, with certain obligations on your part, such as properly attributing the original work.

The six standard licences and their full descriptions are available on the Creative Commons website, but suffice to say consist of combinations of the following four elements:

• Attribution – BY
• No derivatives – ND
• Non-commercial – NC
• Share Alike – SA

Flickr is a little behind the times, and only gives options for the ‘generic’ licence, which is based on US law, and offers only version 2.0, rather than the brand new 3.0 licence. As a side note, CC has moved towards a generic (‘unported’) version based on international treaties, with a separate country-specific option for the US.

So what you will notice is, and this was the subject of the earlier post, is that there is no public domain dedication/certification — for works that would have copyright but the author has decided to forgo it, or that you have investigated the matter and certify that it is in the public domain. This was the gist of the earlier post — I think that Flickr should update the licensing scheme to provide more information.

The problem is that users are uploading images that are clearly in the public domain: works long out of copyright, or works by the US Government that have no copyright (at least in the US). Some place these works into their account under an ‘all rights reserved’ notification, and others use one of the various CC licences. Despite being licensed in this manner, the works are generally still in the public domain and users could feel free to use them — however they don’t necessarily know if they have that right. Using a CC licence does, however, help to identify which works one can use when trying to use the Flickr CC search tools and generally allows uses that track relatively closely what they can do with public domain works. With this as a stopgap solution, I would recommend using the CC-BY licence as it is the most ‘open’ and generally allows any kind of use subject to attribution.

Some people go a bit further in letting people know about the status of the work, and when uploading PD works note that the work is in the public domain in the comments, or tag the pictures with a ‘publicdomain’ tag. So doing a search for ‘public domain’ in the regular Flickr search box reveals work where people believe that it is in the public domain, and gets you different results than when using the Flickr CC search tools.
One such person is David Shapinsky, who has created a site pingnews.com that, as he put it “help[s] people who don’t have experience with copyright issues.” Journalists need secondary audio, visual, and text material to supplement their news pieces, and the site aims to provide it. Right – Hurricane Caroline – NOAA via Pingnews

But if you are looking for a clear guide on what works on Flickr are in the public domain, then relying on a stranger who thinks that something is in the public domain isn’t the best idea — especially if you think that you are at risk for a copyright infringement suit. That being said, introducing a public domain ‘certification’, saying that the person has done the research (as opposed to a dedication, where one dedicates his or her own work), is in the same boat: They could be wrong. On the left is a picture by a user who has taken the comment space to write his own description.

This is a problem of open content systems on the web generally anyway. It all devolves down into relying on an unreliable source to protect you from copyright infringement. Seeing something like a CC licence just gives you a good faith defence that you thought you had a licence, which may or may not help you depending on the facts. It is all about degrees of risk — not clear yes’s or no’s.

From a business standpoint, there is little incentive for Flickr to update the licences to version 3.0, engage in country-specific licensing, or expand the licenses to include the public domain dedication/certification or other CC licences. Updates to the CC licences have been relatively frequent, especially when taking the various jurisdictions into account. The payoff, when compared to the initial payoff of being the cool kid on the block that offers CC licences, is relatively little. I can’t image too many press hits off of ‘Flickr just included CC Scotland’s 3.0 licence today’ or some such. So though it would be a good idea, I don’t think we are likely to see it anytime soon.

This entry was posted Thursday, March 22nd, 2007 at 4:20 pm and is filed under General IP, Open Content, copyright, web. Both comments and pings are currently closed.