Last revised June 3, 2013
It is the policy of Creative Commons (“CC”) to make or associate itself with statements conveying an opinion on issues in the public sphere only when consistent with our mission,<ref>The CC mission: “Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.” https://creativecommons.org/about</ref> and only when the procedures set out in this guidelines document (“Guidelines”) have been followed. As a US-based non-profit organization, our ability to participate in certain advocacy and legislative activities is limited by Internal Revenue Service (IRS) regulations. CC complies with the IRS lobbying restrictions, described at in Section IV. Any lobbying will require approval by both the CEO and General Counsel. CC may not under any circumstances make statements or engage in activities related to the endorsement of any candidate for public office.
These Guidelines address the decision-making process of the CC headquarters (“CC HQ”) office, not CC affiliate teams. Where a CC affiliate team is advocating on its own behalf, it is not bound by these guidelines. Section III provides information for affiliates about their own engagement in advocacy activities. HQ may, on occasion, work with affiliate teams on a coordinated response to an issue of interest, where the local team’s expertise puts them in the best position to respond. In such cases, these Guidelines will apply.
These Guidelines cover all expressions of support for or against proposed or pending legislation, matters falling within the purview of government officials as part of their executive function, online backing of policy initiatives, collaborations with organizations to promote shared policy positions, and other similar advocacy activities. To be clear, the Guidelines are meant to address issues of significant concern and/or opportunity. They are not meant to apply to minor issues or everyday tasks such as publishing announcements on the Creative Commons blog.
II. Guidelines for CC HQ policy engagement
The first part of the Guidelines (Section II.A) describes three categories of activities to which the procedures in the second part apply: 1) public endorsement or critique, 2) collaborative advocacy, and 3) submission of public commentary and testimony. This taxonomy may not address every situation that may arise within the broad scope of the Guidelines. The CEO, in consultation with appropriate staff and affiliates, will be responsible for making a decision in all cases not covered by the Guidelines. Recurring situations not described in section II.A should be considered for inclusion upon bi-annual review of the Guidelines.
A. Categories of Action
1. Public Endorsement or Critique
Summary: We – that is, CC headquarters – ask our community to support or criticize a policy matter (existing or proposed).
- Sending out email newsletters or creating website banners that endorse/critique the SOPA/PIPA legislation.
- Publishing a blog post to highlight the work of SPARC on the Fair Access to Science and Technology Research Act (FASTR) legislation and asking readers to contact their Congressional representatives to voice support for the bill.
- Publishing a blog post critiquing the development of Encrypted Media Extension in HTML5 and calling on readers to sign a petition telling W3C to remove consideration of EME from the HTML5 development process.
2. Collaborative Advocacy
Summary: We collaborate with another organization to take action on a particular policy or advocacy issue.
- Signing a petition created by the Electronic Frontier Foundation asking WIPO to support expansion of limitations and exceptions to copyright for the visually impaired.
- Writing a joint letter with related nonprofits to OSTP urging them to clarify a policy position to the Department of Education with regard to the White House public access policy.
- Joining a working group to organize and promote a positive legislative copyright agenda.
- Endorsing an outside group’s funding proposals by allowing use of our name and logo.<ref>These activities may involve use of CC’s trademarks and logos; appropriate, limited use permissions beyond those automatically granted by CC’s existing policies (http://creativecommons.org/Policies) may be granted. The General Counsel should be notified in advance of granting that permission, which may take the form of a letter agreement or other documentation.</ref>
- Joining Engine Advocacy as a member organization.
3. Submission of Public Commentary and Testimony
Summary: We submit comments to a public inquiry or provide assistance to a legislative, executive, judicial, or regulatory body.
- Submitting comments to a Request for Information from the Office of Science and Technology Policy on best practices for sharing scientific research articles.
- Developing European Union green papers.
- Providing testimony to a hearing on Open Textbooks at the California State legislature.
- Offering technical assistance on open licensing to government officials or their staff.
- Developing amicus briefs.
B. Decision Chain for Categories of Action Described Above
- Any CC staff, affiliate, or Board member may raise an issue to the organization.
- Issue will be shared and discussed on staff and affiliate email lists, with potential consultation with other experts, as appropriate.
- Any lobbying requests must be submitted in advance of the lobbying activity and aligned with established staff policy outlined in Section IV.<ref>Per CC policy, lobbying is any activity that attempts to influence legislation anywhere in the world. For these purposes, legislation includes any action by a legislative body, but does not include actions by administrative agencies or courts.</ref>
- CEO and General Counsel will approve or disapprove, with input from staff and affiliates, as appropriate.<ref>Note: The CEO will determine, in each case, whether the activity constitutes lobbying for purposes of IRS regulations; the determination will be taken into account in approving or disapproving the activity, since the amount of lobbying activity CC may engage in is limited by those regulations.</ref>
- CC Staff and Affiliates will be notified in advance of publicly communicating major decisions.<ref>When major decisions are to be communicated publicly (via the CC blog or newsletter) it is best practice to notify CC Staff and affiliates 24 hours in advance, if possible.</ref>
- CC Board of Directors will be notified or consulted in discretion of the CEO, except that the CEO will always consult with the Board Chair in advance of intervening in judicial proceedings (e.g., Amicus briefs).
C. Approval, Consultation, and Notification
As shown in the decision chain above, all requests to engage in advocacy or express support or opposition on public policy issues undergo some level of consultation, review, approval, and notice by staff, affiliates, or the Board. This section describes the roles of those involved in the decision and consultation process generally.
- CEO and General Counsel: The CEO and General Counsel’s approval is required for any policy or advocacy decisions and affiliations. Both the CEO and General Counsel review and approve all lobbying activities.
- Senior Leadership: The Senior Leadership team should be consulted on all types of policy and advocacy decisions. When the issue concerns a specific domain, the approval of the director or coordinator for that specific domain should be sought.
- Other Staff: Other staff (including Regional Coordinators) should be consulted when the proposed policy and advocacy decisions are within their domain of expertise. For example, blog posts that include advocacy activities should be reviewed by the Communications Manager.
The CC Affiliates are notified through CC-Affiliates email list about the policy action 24 hours in advance (if feasible) of public communication of that decision. Local affiliates should be consulted when potential policy and advocacy actions originate in their respective affiliate jurisdiction. Local affiliates should assist (and potentially lead) on issues where they have demonstrated expertise.
Board of Directors
As noted above, the CEO will notify or consult with the Board about policy and advocacy issues at her discretion, but will always obtain Board approval before CC intervenes in any judicial proceeding.
III. Guidelines for affiliates engaging in advocacy activities
- Representing Creative Commons (the overarching organization): If affiliates wish to speak on behalf of CC as a whole organization (as opposed to their respective affiliate team or institution), they need to get CC HQ’s approval first. This serves the dual purpose of ensuring coordination on messaging across our global, distributed organization, as well as allowing CC to track lobbying efforts as required under U.S. law. Affiliates should send such requests through their Regional Coordinator.
- Representing the CC affiliate team: If affiliates speak on behalf of their local affiliate team, e.g. CC Korea, they are free to make their own statements, as long as these statements align with CC’s vision and mission. If an affiliate team consists of more than one organization, then all the jurisdiction partners who have signed an MOU should be notified in advance of the planned activities. They should also be clear in all public communications that they are not speaking on behalf of CC as an organization (see first bullet). CC HQ asks affiliates to inform CC HQ directly when undertaking any major advocacy activities so HQ can properly understand the issues and offer assistance where relevant.
- Representing their own views or the views of a separate organization: If affiliates are commenting in their own private capacity or on behalf of a separate legal entity such as their host institution (but not the CC affiliate team), they are free to express their own opinions. Of course, CC expects affiliates to adhere to the expectations as agreed to in their MOU. We recognize that as individuals and separate organizations, affiliates may from time to time disagree on particular issues with CC HQ; however, CC HQ expects that affiliates will not directly contradict the mission of the organization in public or consistently adopt positions that do not reflect positively on CC or undermine our activities or legal and technical tools.
- Affiliates, when acting in their capacity as an affiliate or for HQ, may never make statements or undertake activities that directly endorse any candidate for public office, even if local.
Creative Commons is a nonprofit organization exempt from U.S. federal income taxation under Section 501(c)(3) of the Internal Revenue Code. Because of our tax-exempt status, we are limited in the amount of lobbying activity we may engage in as an organization.
Lobbying is any activity that attempts to influence legislation anywhere in the world. For these purposes, legislation includes any action by a legislative body, but does not include actions by administrative agencies or courts.
Generally, 501(c)(3) organizations are prohibited from devoting a “substantial part” of their activities to lobbying. Creative Commons has elected to be governed by the test set forth in Section 501(h) of the Internal Revenue Code to determine what is “substantial.” This test sets limits on the amount of lobbying expenditures we can spend as a percentage of the total expenditures we make to further our charitable purpose. Those limits are divided into two categories: direct lobbying (any attempt to influence specific legislation) and grassroots lobbying (urging the public to take action on specific legislation).
To comply with these requirements, we keep a detailed record of all of our lobbying activities and expenditures. CC employees and consultants are required to obtain approval before engaging in any activity that may constitute direct or grassroots lobbying, and they must report on the time and money spent engaging in the activity after it is completed. CC affiliates must obtain prior approval before engaging in any lobbying activity on behalf of Creative Commons. If affiliates wish to engage in lobbying in their own private capacity or on behalf of a separate legal entity such as their host institution, then the affiliate should make clear that they are engaging in such action not on behalf of Creative Commons or the CC affiliate team.