flogging blog posts for publication and distribution

The following comments are selections of a series of emails that Dave and I exchanged following his post on this topic and my subsequent follow-up above. For what it's worth we decided to add much of this exchange to the public conversation, and agreed together to publish them both here and on his blog...

So after my post, Dave, who is from New Zealand, writes:

Hi Duncan,

I just want to clarify a few things in regards to creative commons licences.

As a journalist, copyright is something I have thought about a lot. Before I read your post I didn't know about these licences. I do know about copyright law though, and I see a difference between distribution and publishing.

My comments regarding unethical emailing was done without the knowledge that Steve had a creative commons licence. Now that I know he has one that makes an ethical difference. I thought these licences were to make it easier to publish articles as you only have to get permission from the author on one occasion, not the second or third etc. Does this mean that If I see another article on Jeffrey Overstreets site I can post it if he has a creative commons licence as I have already asked for his permission to post the initial article on my blog?

It is my understanding that a creative commons licence does not make too much difference in regards to NZ copyright law in terms of publication unless you make money from the reposting without the permission of the author.

As the creative commons site says, they Want to encourage other writers and artists to make, transform, and build on your stories, provided they don't resell them. (my emphasis).

But if you edit or add to a work licensed by creative commons for publication, you must have a creative commons licence to do so even if you comply with copyright, unless agreed to by the author.

If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one unless the author agrees otherwise.

Duncan... these licences don't protect you from anything, do they?

I respond to Dave the next day:

Hi Dave,
Hmm, you raise some interesting points actually.

I have to confess I'm pretty fuzzy on the difference between publishing and distribution. I guess you're saying emailing is distribution, not publishing? But what if it was distributed on a mailing list with a thousand subscribers?

If someone has a Creative Commons license on their blog, you can click through and see which one they are using, to find out what terms they are licensing the material under. In I think all cases, this should at least permit non-commercial reproduction without alteration, providing the author is attributed, the original source is linked to, and you also link to the Creative Commons license that covered the original post. Even if your blog normally refuses to allow people to reproduce your material, anything reproducing someone else's work covered under these licenses, and any derivative works, is usually required to be covered by a similar license. It wouldn't mean you'd have to have a CC license for your entire blog, but you'd have to indicate that that entry (or at least, the reproduced section of it) is covered by that CC license.

Does this mean that If I see another article on Jeffrey Overstreets site I can post it if he has a creative commons licence as I have already asked for his permission to post the initial article on my blog?

Technically, if it's covered by a CC license, I don't think you ever need to ask permission, providing you comply with the other aspects of the license. What I'd usually do though is simply include a pertinent excerpt, and link to the original for the reader should they wish to read the whole thing. I guess it depends on how you conceive of the purpose of your blog. Mine is to present my own ideas and experiences, linking out to others. Other people may adopt a more “newspaper” or “magazine” format, reproducing material from around and about as well as editorial comment and in-house articles.

It is my understanding that a creative commons licence does not make too much difference in regards to NZ copyright law in terms of publication unless you make money from the reposting without the permission of the author.

Certainly, Creative Commons licenses explicitly state that they do not reduce the rights you have under “fair use” aspects of legislation. I suppose it is an interesting question whether an author could state that their CC license had no legal authority in New Zealand, and therefore not allow you to use material released under one. But since a CC license is about the author waiving their rights under law, I think any defendant would have a fairly strong moral case. It is hard to imagine a realistic situation where this would come to court... perhaps where an employee put a CC license on something that his employer later decided they owned. (Not revocable, remember.)

As the creative commons site says, they "Want to encourage other writers and artists to make, transform, and build on your stories, provided they don't resell them."

Interesting question: are there any CC licenses that explicitly say, hey, use my stuff, and even sell it yourself if you like? (Probably not!)

Duncan...these licences don't protect you from anything, do they?

Arguably they protect the author from being pestered with requests to republish their material, when they're quite happy for anyone to do that. And I suppose they reinforce the things you don't want to be done with your material, though the license merely states things that are already in law, rather than creating any protections. But primarily the license protects the person copying the work or making derivative copies, reassuring them they are doing so in a way the author is happy with. That's what is such a pity about the case with Steve – he isn't actually happy for his work to be reproduced (in this case anyway) in the manner allowed by his license. That's why he really needs to review that license.

Nice to hear from you! An interesting discussion.
Cheers,
Duncan.

Dave thought so too and emailed back:

Duncan,
just attempting to answer a question of yours, particularly as I sense that that you are a person who thinks things through.

First, some definitions

publish = to make generally known (there are not restrictions on who can view)

distribution = to give a share of to each of a number (there are restrictions on who can view)

You asked "I have to confess I'm pretty fuzzy on the difference between publishing and distribution. I guess you're saying emailing is distribution, not publishing? But what if it was distributed on a mailing list with a thousand subscribers?"

You raised a good point, and I compare this with the scenario where papers like the New York Times requires registration to view its site. Anyone (who is not blind and can read) can view the New York Times online as long as they register. Of course anyone can read the physical paper if they see it. Any one can view the emailout as long as they subscribe.

I actually see the difference is that I consider an emailout (to one or a million people) is not a publication as it is sent to a restricted group, whereas publishing is in the public arena and is not sent to people, the people come to the publication. There is the possibility of no restrictions.

Also to throw a spanner in the works, anyone with an internet connection has the possibility of stumbling across your blog by accident (as I recall that is how you found my blog), but it is impossible for everyone to stumble across an emailout by accident.

That is why I consider your blog a publication.

That's what is such a pity about the case with Steve – he isn't actually happy for his work to be reproduced (in this case anyway) in the manner allowed by his license. That's why he really needs to review that license.

And I happen to agree with you, Duncan. Thanks for filling me in about the licence

Good conversation, lets publicise it - or at least distribute it! It will come up again and again.

outta here

cheers
Dave

Dave adds some final thoughts:

Is it OK to post, without permission or attribution, an article, a blog entry, or a picture on your blog that you didn't create? That comes under fair use laws. Fair use is limited, or “minimal” use of content, for example a few sentences of a New York Times article as opposed to the whole article.

Flogging someone's website templates and stealing posts can really annoy people, especially if there is no attribution. It is also breaking the law, which is worse. So always ask written permission and use attribution when reposting articles and blog entries in full.

Back to fair use. For fair use to enter the picture, you have to implicate a right of the copyright holder. A good blog on fair use is here. Read it. Fair use is not always an infringement of copyright, but abuse is not fair use and could infringe copyright. I believe fair use applies to all publications, and I include blogs here. If blogs were excluded, maybe anything that was copied from blogs without permission, no matter how small, would be an infringement - like some of the content in this blog entry, and this piece, from a 1985 Wired Magazine no longer online, which was sourced from another blog.

Chief among the [internet's] new rules is that “content is free.” While not all content will be free, the new economic dynamic will operate as if it were. Intellectual property that can be copied easily likely will be copied.