Using a Creative Commons licence for a legal website
by Jonathan Mitchell
Earlier this year the Murray Stable of advocates - the approximate equivalent of an English
barristers’ chambers- launched a new website at www.murraystable.com. Scottish advocates
have lagged far behind the English bar in publicising themselves on the internet, and the official
advocates site, at www.advocates.org.uk, although updated last year, still has very little by way
of legal resources.
We wanted to include a regular stream of substantial articles. So far, so ordinary. But then we
decided that, rather than publishing these under the usual principles of copyright law, we would
release them, and indeed the whole content of the site, under a Creative Commons licence.
Several Scottish legal sites have used this, including my own, and at least one major law centre.
This seems to be the first time, however, that a stable, firm, or chambers site has done so. This
article is to explain why we did so; why I am sure we made the right decision; and why others
should consider doing so.
UK copyright law is designed for people who are concerned to limit re-publication; it is notoriously unfriendly to any re-use of copyright material. If you are a novelist, the logic is obvious; you will not want to see people publishing pirate editions of your work, taking the profit and stealing your livelihood. This logic has little or no application to the sort of work one sees on sites such as ours. No advocate or barrister would ever expect to be paid for such work in anything but reputation. Its marketing purpose is to build up reputation, both for the stable and for the individual. The wider the distribution the better, so long as the author is credited and the work is not plagiarised or distorted.
Why would anyone operating such a site want to tell readers that they should not download or reprint articles? Yet practically every similar English site does so, either by publishing an explicit copyright notice or by retaining the ‘default’ that all published work is copyright of the author even when it is obvious that the author would be happy to see his or her work more widely distributed. No doubt some users, if they are aware that their re-publication is illegal, conceal its source; so the author gets no reputational benefit. One has to wonder sometimes what a copyright notice on a website is supposed to do; do people really believe that readers will not print out a good article or pass it around? Weren’t they supposed to?
So it is important, we thought, to tell our readers that they were welcome to distribute our articles pretty much as they liked so long as the authors got their due credit. A Creative Commons licence, creativecommons.org, does this.
Creative Commons provides a flexible range of licences for anyone who wants to allow others to re-use their work without further ado, and without payment: the advantages of these licences, particularly to those who believe in the free distribution of information, were well described in a recent report, ‘The Common Information Environment and Creative Commons’: see www.intrallect.com/cie-study/CIE_CC_Final_Report.pdf.
Features of a Creative Commons licence
The common features of the whole range are, firstly, that the user is given an irrevocable licence to re-use or re-publish the work, whether by copying or otherwise and, secondly, that the author must be properly credited. We opted for the most restrictive form of licence, which does not allow commercial re-use or derivative works (though my own site allows both). Licences are available for both Scottish and English law: creativecommons.org/license (there is an Irish licence in the pipeline too, but meanwhile Irish readers can use a ‘generic’ version). Obviously we do not police use, any more than any similar site author does, but we do know from our site statistics that the most popular articles are each downloaded around three hundred times a month, and we also know that we have a high proportion of repeat visitors. Several of our customers, and also the Journal of the Law Society when it reviewed our site, have explicitly commented on our publication policy. It seems to work.And, principled people that we are, we don’t just publish this way as a marketing tool; when we discussed this, we felt that it was right in principle to put legal education material of this kind into something akin to the public domain - even with the restrictions we impose - and to be upfront about the fact that we were doing so. We wanted to make it clear that we were positively happy to see our work being read and used by others without any immediate or obvious return. Quite a few of us had been doing this for years when we wrote or spoke for the voluntary sector. A great deal of legal publishing has of course been driven by such authorial attitudes for many years; few legal writers, in Scotland anyway, could ever hope to make money from their writing.
It seems strange that it remains the norm for academic and other legal writers effectively to donate their work to their commercial publishers, whose interest is to hold down distribution to maximise profits, when their own interest is to maximise its distribution and utility. The public sector is slowly coming to realise that it has obligations to permit re-use, though even there one still sees sites marked ‘copyright’; recently the Office of Public Sector Information moved to encourage local authorities to publish under its ‘click-use licences’ which, like Creative Commons, allow re-use. But that is for another day.
Creative Commons as an organisation, or as a movement, may be a little off-putting to many professionals and it can also seem to be a little evangelistic and self-satisfied on occasions. Its emphasis has been more in the arts than in the professional communities, and it is still rather USA- centred. Much of what it does is concerned with the broad policy that a middle road must be found between our grossly over restrictive copyright system, and the piracy from which that system emerged. It also gives a ‘brand name’ to a publishing licence which suits the needs of the typical Bar or solicitors website in openness and potential re-distribution. It has an increasingly-well known name; over twenty million websites use its licences world wide. It seems to me to make sense to use its licences rather than hand-craft text to the same general effect.
Jonathan Mitchell QC is a practising advocate and is joint Scottish project lead for Creative
Commons.
His own web site is at www.jonathanmitchell.info.
email via www.murraystable.com.
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