Pursuant to a generous grant from Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin, Creative Commons conducted a formal exploration and analysis of a proposal to create so-called “springing licenses,” a legal mechanism for granting a license that automatically springs into life at a future date.
The idea motivating the concept is that creators may be willing to give up some control over their work at some point before the long copyright term has ended, even if they will not or cannot do so when they first publish the work.
There are many potential benefits of such a mechanism, including:
The mechanism would obviate the need for a licensor to go through the trouble of applying a new license to their work;
If technically executed well, all copies of the work distributed on the internet would automatically change the license and/or carry information about the terms of the new license, thereby alerting all downstream recipients of the increased permissions and triggering event; and
The mechanism would be a means to ease reluctant creators into the idea of granting more access and reuse permissions to their work, but on a timeline that might be more palatable.
There are many potential segments of the copyright community who might be interested in such a mechanism, including:
Commercially successful artists or those who strive for commercial success with their creative work.
Foundations who want to use the mechanism as a requirement for their grantees.
User-generated content platforms who want to build into their terms of service as a way of ensuring digital assets do not become orphan works after death.
There are many potential formulations of the idea:
a license that springs into effect upon the death of the creator,
a license that springs into effect after the work has recouped its creation costs and/or generated a predetermined amount of money in the market, and
a license that springs into effect on a fixed date or after a preset period of time.
In a wide variety of forms, the springing license concept has been floating in the open community for years. The Creative Commons community discussed the idea in connection with the 4.0 versioning process. Creative Commons staff explored the concept in detail in 2014-2015 as part of a working group that included Wikimedia, Question Copyright, and several others. The purpose of the working group was to explore the concept more concretely and look into the feasibility of creating a new organization — the Free Culture Trust — to steward and promote the tool.
Creative Commons previously pursued a project in a similar vein called Founder’s Copyright, where creators would sign a contract agreeing to dedicate their copyrighted works to the public domain after 14 years. The project did not receive much uptake and is no longer active.
Summary of work under the Arcadia grant
Beginning in 2015 with the grant from Arcadia, CC began a formal analysis of the concept and its feasibility as a new legal tool for CC stewardship. In its evaluation, CC looked at the legal and practical challenges associated with the springing license concept.
In order to be serve its purpose as a legally binding commitment, a springing license would need to be irrevocable, like all other CC legal tools. This poses serious enforceability challenges.
By definition, a springing license creates a time gap between the moment the creator grants the permissions and the moment the public is allowed to exercise them. During that time, licensors may forget or change their minds about the springing license. They might enter into other licensing arrangements or include them in the estate governed by their will. Those later-signed agreements or wills could conflict with the terms of the springing license.
With the help of the Berkman Klein Center for Internet & Society, CC conducted research on how to navigate the enforceability challenge as a matter of U.S. law. A summary of their research is available below.
The practical challenges associated with the springing license concept are arguably more significant than the legal hurdles.
In order to be a useful tool, reusers of a work would have to be notified that a work was subject to a springing license and, once those springing permissions go into effect, be alerted that the conditions of reuse have changed. Creative Commons currently has no infrastructure for keeping track of when and what licenses are applied and to which works. Furthermore, unless the springing mechanism goes into effect on a specified and certain date, the notification challenges could be quite complex from a technical perspective.
Another challenge is finding a way to ensure that the springing license option is understandable and easy to use. This is important from a legal enforceability perspective but also because it is core to CC’s mission and vision.
CC’s decision and supporting rationale
The legal challenges associated with the concept are complex, especially given that contract and estate law in most jurisdictions is dictated by state and local laws. But it is the technical challenge that poses the most significant hurdle for CC at this time. Without technical infrastructure to track use of the licenses, the springing license concept is largely untenable.
As of 2018, CC is currently in the process of creating such technical infrastructure in connection with a new CC Search tool and other technological products. Once complete, CC will likely reconsider and make a fresh determination about whether to move forward with the idea.
In the meantime, CC welcomes any research or ideas about how to overcome the legal and practical challenges posed by the tool. You can read a full summary of our findings in our final report, which is linked below.
Final Report to Arcadia by Creative Commons (July 2018)
CC Global Summit 2017 Presentation by Sarah Hinchliff Pearson
Summary of related legal research by the Berkman Klein Center for Internet & Society at Harvard (to come)