TechnoLlama: Book publishing under Creative Commons

I have been granted sabbatical leave for the academic year 2008-2009 in order to write a book. The topic is related to my research into networks, and it will expand some of the ideas I've had in this area. One of the things I really wanted was to publish the book under a Creative Commons licence.

While it may seem counter-intuitive to publish a book under "some rights reserved" licences, some high-profile examples in academia and in fiction have proved that it can be a successful strategy. The number and quality of legal academic writing under CC is becoming quite impressive: Lessig's Code 2.0, Benkler's The Wealth of Networks, and Zittrain's The Future of the Internet are all released under a CC licence, and are selling as well as specialist Cyberlaw books sell, if not better. The Wealth of Networks can be found online in its entirety in a large number of formats, it can be downloaded as a PDF, and even read in HTML. Traditional proprietary thinking would tell us that a book which has been made available online would not sell, why would anyone buy a book that you can get online for free? But people are buying it, and buying it in droves. The book is ranked at an astounding 13,928 in Amazon.com's book sales rank. This is impressive when you compare it with other successful books in the area. Goldsmith and Wu's excellent book Who Controls the Internet (not released under CC) is ranked 181,050, while William Fisher's Promises to Keep is ranked 176,007. Not only have sales been positively affected by CC publication, overall impact is also enhanced. If the value of an academic book is measured on how many people read it, then these books are runaway successes.

But publishing is still a business, and success in academia is not only measured by how many people read your work. We are also required to show something tangible to promotion boards and heads of school. Having a successful blog and large number of downloads on SSRN does not equate promotion. Metrics and deliverables are the name of the game, and nothing gives as much academic kudos as a monograph printed by an established and reputable publisher. In the age of information overload, publishers are still seen as gate-keepers, providing a much needed seal of quality to the written word.

This brings me to the question asked by anyone who wants to release under a CC licence, but who also may want to publish commercially. How do you reconcile both worlds? How do you make sure that the CC strategy does not affect the commercial strategy?

I have been pleasantly surprised by the willingness from the publishers to talk about CC licensing. The publishers (which shall still remain nameless until everything is signed) has been open to suggestions on how to publish my book under Creative Commons, and how this would fit into their commercial interests. This would be a first time for them, and they have taken the chance precisely because I have been a vocal proponent of CC, it would seem hypocritical not to practice what I preach. For now, this is a one-off experiment, so no pressure on me then...

The first question for me was which licence to choose, and I have gone for the CC-Attribution-NonCommercial-NoDerivs licence. I know that non-commercial licences have many detractors, but to me their value is in allowing dual licensing strategies that allow commercial exploitation. I have also chosen to go for non-derivatives as I do not see the point of anyone remixing a book and releasing it with share-alike provisions, but I may be wrong here. Once the licence was chosen, the next step was to redraft the boilerplate agreement from the publishers in order to make it CC-friendly. The publishers were again very willing to let me look at the contract and make the adequate changes. I put my drafting hat on and started working on it.

The first thing is that I added a clause which specifies that the work is licensed under a CC licence:

"This work will be licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 Unported licence, hereinafter called "the Licence". The full text of the Licence is appended to this agreement. "

Then came the tricky part of dealing with exclusive rights. All publishers ask you to grant them with an exclusive licence to publish the work, which could be incompatible with CC, as there would be a number of publications that are not exclusive. For example, a person in Costa Rica decides to photocopy the work and distribute it in class. This would be keeping with the CC licence, but it would seem to infringe exclusive rights. What I have done is added "commercial" before the grant of exclusive rights, so that it now reads "the Author grants the Publisher the sole and exclusive right and licence to commercially produce and publish the work" (I am rephrasing slightly to protect the publisher's agreement). This allows the publisher to retain all of their exclusive commercial rights, while keeping all non-commercial uses protected by the CC licence intact.

I then turned to enforcement. Most publisher agreements have sections where they promise to sue infringers. I left that as it was, but added the following clause:

"In case of breach of the Licence, the Author assumes the sole responsibility for its enforcement. The Publisher may jointly bring suit if it believes that the breach infringes its exclusive commercial rights. "

This leaves the door open for the publisher to sue against infringers that affect their commercial exclusive rights directly, but it leaves all responsibility with regards to the enforcement of the CC licence up to me. Finally, most publishing boilerplate agreements also have a list of exceptions, fair use/dealing provisions, and circumstances where royalties will not be charged. I added the following to a list of free copies, that is, copies which will be exempt of licence and/or royalty: