Should Creative Commons Drop Its NonCommercial & NoDerivatives License Options?
from the a-good-question dept
While we're big fans of Creative Commons in general, for many years, we've raised questions about some of the licenses/clauses -- with the NonCommercial one being of particular concern. Almost four years ago, we worried about the very blurry line between what was commercial and what was non-commercial, and how trying to separate them out in a license could lead to serious problems. Two years ago, Nina Paley also argued about significant problems with the NonCommercial licenses, and how they actually hurt Creative Commons itself in the long run by creating branding confusion. In particular, many people think that all CC licenses bar commercial use, even though that's not the case at all.Given that, it's interesting to see a suggestion over at the website for Students for Free Culture to take this a bit further and suggest that as Creative Commons is exploring its next round of licenses, it's time to get rid of both the NonCommercial clause and the NoDerivatives clause, arguing that they both run counter to the nature of free or open culture:
Of course, as they note, the NonCommercial clause is still used pretty frequently -- though often without much thought given to why. The site suggests that perhaps those clauses could actually be rebranded or moved out of Creative Commons directly, to keep CC more focused on true open culture efforts.The two proprietary clauses remaining in the CC license set are NonCommercial (NC) and NoDerivatives (ND), and it is time Creative Commons stopped supporting them, too. Neither of them provide better protection against misappropriation than free culture licenses. The ND clause survives on the idea that rightsholders would not otherwise be able protect their reputation or preserve the integrity of their work, but all these fears about allowing derivatives are either permitted by fair use anyway or already protected by free licenses. The NC clause is vague and survives entirely on two even more misinformed ideas. First is rightsholders’ fear of giving up their copy monopolies on commercial use, but what would be considered commercial use is necessarily ambiguous. Is distributing the file on a website which profits from ads a commercial use? Where is the line drawn between commercial and non-commercial use? In the end, it really isn’t. It does not increase the potential profit from work and it does not provide any better protection than than Copyleft does (using the ShareAlike clause on its own, which is a free culture license).
The second idea is the misconception that NC is anti-property or anti-privatization. This comes from the name NonCommercial which implies a Good Thing (non-profit), but it’s function is counter-intuitive and completely antithetical to free culture (it retains a commercial monopoly on the work). That is what it comes down to. The NC clause is actually the closest to traditional “all rights reserved” copyright because it treats creative and intellectual expressions as private property. Maintaining commercial monopolies on cultural works only enables middlemen to continue enforcing outdated business models and the restrictions they depend on. We can only evolve beyond that if we abandon commercial monopolies, eliminating the possibility of middlemen amassing control over vast pools of our culture.
Most importantly, though, is that both clauses do not actually contribute to a shared commons. They oppose it. The fact that the ND clause prevents cultural participants from building upon works should be a clear reason to eliminate it from the Creative Commons license set. The ND clause is already the least popular, and discouraging remixing is obviously contrary to a free culture. The NonCommercial clause, on the other hand, is even more problematic because it is not so obvious in its proprietary nature. While it has always been a popular clause, it’s use has been in slow and steady decline.
It's an interesting proposal all around, and we're already seeing a fair bit of buzz about it. It will be worth watching to see if it really gets any traction.
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Filed Under: creative commons, culture, derivatives, free culture, noderivatives, noncommercial, open culture
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Re:
I don't agree with this at all.
Over the years, I have run numerous very popular internet services including MUDs (text-based MMORPGs, for the youngsters out there), software repositories, bulletin board systems, blogs, and much more. Most of these services have operated for over a decade.
Not one of them has been commercial in any sense, ever. No ads, no subscription charges, no nothing.
It would be very misleading to describe them as "commercial failures," as they weren't intended to be commercial ever. To make them so would have ruined them.
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Yes, "commercial" is a fuzzy concept.
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Going to school, for example, is not a "commercial activity" in the sense people (or the IRS) typically mean. It does not produce revenue, nor guarantee future revenue.
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I wonder if using a work in a commercial qualifies as commercial use.
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That isn't true of education, at least education outside of trade schools. The purpose of attending school isn't to generate a revenue stream, it's to gain an education.
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should be
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Commercial software (or anything) is a tradeoff. You get the ability to make money in exchange for a reduced/eliminated ability to do some Really Cool Shit.
There is a legitimate role for both approaches.
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Re: Re:
See http://gnu.org/philosophy/selling.html
Also see the free software definition http://gnu.org/philosophy/free-sw.html
Remember kids: it's free as in speech, not free as n free beer!
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If Harper Lee put out To Kill a Mockingbird with a non-commerical license, she wouldn't be doing herself a favor since she only wrote the one book. There was no promotion of other works possible since she didn't produce much else other than a few short pieces in magazines.
What if an amateur artist produces one single design that does really well (like for instance, the Nike swoosh design [for which Carolyn Davidson was originally paid $35 and only later gifted with Nike stock and a diamond ring as thanks]) and never does anything of significant commercial value again?
I'm specifically saying amateur because it might not be the artist's intention or in their ability to produce enough of a body of work to sell more designs.
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Of course, all of your cases are entirely taken in hindsight. Until the original creator dies, there is no way to know for certain that will be the only work created. Or do we need to wait for 70 years, just be to sure that a reanimated corpse doesn't get hit with a creative streak?
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I wrote a story about that based during the time of the copyright term extension of the 1970s. Good job facts can't be copyrighted or my ass would be in court, LOL!
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I wrote a story about that based during the time of the copyright term extension of the 1970s. Good job facts can't be copyrighted or my ass would be in court, LOL!
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What if he produces none, which is more realistic? What are his work's chances of becoming the next "To kill a mockingbird"?
Doing "really well" is unlikely. Most amateurs' works are not going to do well at all no matter how they are licensed, but a free license gives more opportunities.
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Backwards and forwards economic structures
A creator makes something for nothing, then a big corporation uses it and makes lots of money. Surely some of the profit should go back to the creator, right? The well-known example is the Nike logo: done for a few tens of dollars -- although that does not quite fit perfectly because there was some later payment. It seems persuasive: there is lots of money, and the creator obviously contributed.
But the basic structure of this is backwards. It is trying to work retrospectively: when profits *later* arrive, divide them up and send them back to whomever is deemed an *earlier* creator of them. That does not really make sense.
Instead, the right way around, we should be ensuring *up-front* that people can create things. Rather than using information to allocate money backwards, we should be using information to allocate money for intended/expected future work and results.
Why give people money anyway? So they can do useful things with it. Giving people money only for having done something *previously* serves no sensible purpose.
(Now, how to devise and implement more 'forward' economic structures is something to think creatively about . . .)
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reminded me of this
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I still do SA, though, as a matter of principal.
That being said, I think that NC and ND are good things to have to promote openness in otherwise gated content. I think if CC did away with these clauses, they would get fewer new adopters. The better solution is to keep these clauses around to encourage growth, but to educate people (as I was educated) that while it might be comforting to have the NC/ND clauses, they should only be used as a gateway to better access to content.
Also, if the CC got rid of NC, Cory Doctorow's new books wouldn't be released under CC-4.0 licenses due to an agreement he has with his publisher.
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Yes.
I have hated NC and ND for as long as I've known about Creative Commons, for exactly the reasons espoused by Nina and the Students. They don't help, and they confuse people: how many times have you heard someone refer to a "creative commons license" without specifying which clauses it includes?
My favourite remains the CC0 Public Domain Dedication, because even BY can be cumbersome or impractical and I dislike viral licenses. But my ideal world would not include licenses for such things at all, so take that as you will.
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i suspect some wording is needed to clearly define "commercial" and "derivative" for the layman. is my blog that has ads "commercial"? is my blog "derivative"?
it depends.
but taking away these options? why would you do that? the point is to promote these CC licenses with the stipulations the USERS want.
ND and NC have a very real use in this world for art.
and the other problem? if they are taken out of CC, then someone else will just make another license that has them.
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I'm a huge fan of CC but this is myopic
By dropping the no derivatives and no commercial use clauses, you are drawing a line in the sand and telegraphing to the vast majority of commercial enterprises that you want no truck with them. That seems childish. It is basically saying that CC is only for the converted -- it turns CC into an echo chamber.
Do I think that NC and ND clauses are legally dubious or ambiguous? Sure. Do I generally disagree with their motives? Yes. However, having worked as in-house counsel in a software startup for a few years now, let me assure you, sometimes, our hands are just tied. And, in the worlds in which I fly, proprietary software is still king.
So, basically, if you want to tell all the large commercial firms on the planet that they have no reason to even bother with CC, this is the way to go. However, if you want to give them a system, called CC, that can save them money, by referring to shorthand license terms, instead of having to draft it themselves over and over, and thereby gradually introducing them to the idea of free culture and winning converts, keep these clauses in.
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Re: I'm a huge fan of CC but this is myopic
Now that I was planning to use it (the NC) =/
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Why NC/ND are unneeded (my own crosspost from the Reddit topic)
- Non-commercial restrictions come from the confussion between copyrighted usage and commercial usage. There are plenty of non-copyrighted but commercial usages: playing a song in an event with entry fee, placing it in an ad-driven blog, etcetera. Share-alike licenses deal with the copyrighted usages, and the artist is free to cash with their work even if others do.
- Non-derivative restrictions come from the fear of having a person's opinion distorted. Attribution and moral rights deal with that; derivatives must be clearly labeled as such.
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There is Value there
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Maybe you can be awarded more damages for copyright infrigment than from misrepresentation, though. So it can be a good deal if that's what you're looking for.
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Collecting Society based on NC in Europe
They will present their issue on the SXSW 2013.
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Couple of objections...
Where an original indie artist will create a work - it gets picked up free by a corporate, who release a movie or song -- then 3 months later the original artist is receiving DMCA takedowns and cease & desist orders for using the work which they actually own!
Furthermore there is the argument that by offering ND-NC you are keeping the possibility of widespread adoption of Creative Commons vs (C)opyright. If more people default to specifying (CC) rather than a (C), Creative Commons actually wins more legitimacy and presents creators with a choice when specifying copyright rather than going with the typical restriction (many creators are still not even aware of CC).
What they seem to advocating is the equivalent of BSD/Apache license for creative works - maybe they should be looking to the GPL and be advocating that the work can be put to commercial use, but that any derivative should release the derivative 'elements' back to the community for remixing.
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Re: Couple of objections...
If the artist chooses Share-Alike, then its a fault of the corporation, not of the artist. Now, if we talk about CC-BY-only artwork, the situation grows grimmer.
I've heard about this argument. Promoting half-freed licenses is a short-lived solution. Educating artists about the benefits of permitting commercial use and derivative works, on the other side, is better in the long run for the free culture community and the world as a whole.
Exactly! Copyleft licenses are better than permissive licenses in that regard, because they require all derivatives to be free-as-in-freedom as well.
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Yes! Yes! A Thousand Times Yes!
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I disagree on this one
The rationale is simple: I don't care if people share my music with each other (in fact, I welcome it). But if someone is making money directly from my music, then I deserve some of that money.
And I am not alone: 67% of the artists who use CC licenses use some form of -NC license. If you include -ND licenses, that number is 71%. Clearly, the vast majority of CC license users want these licenses to exist.
The bigger (and IMO better) question is what should constitute "commercial use." If you host my music on a blog with ads, is that a commercial use of my music? If you're a file hosting site that offers paid subscriptions, and someone uploads my music to that site, is that a commercial use of my music? In my opinion, the answer to both questions should be an unequivocal "no."
The plain fact is that the CC license really doesn't answer these sorts of questions. (It does, at least, explicitly exempt file sharing from "commercial use.")
So, I actually defined "commercial use" myself, in a FAQ on my website. By my definition, it is a "commercial use" if:
1. You are charging money for access to, or copies of, the content; or
2. You are a legally registered business entity (LLC, corporation, partnership, sole proprietor, etc).
"You" means the entity that actually offers the content (legally speaking, the distributor or transmitter), and not third parties.
I'm actually unsure if I can still call this "CC-NC," but when I asked this in the CC forums, I got no answer. So, I still do.
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Re: I disagree on this one
>music, then I deserve some of that money.
ND doesn�t achieve that. Maybe you should recheck your understanding of the CC licences before you get too deeply into this?
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Re: Re: I disagree on this one
It does, in the sense that if someone wants to use my music in a commercial capacity, they have to license it (or otherwise get my permission).
Without -NC, my work could be exploited for profit without my approval. Also, you couldn't join PRO's like BMI or ASCAP - nor, for that matter, Tunecore. Jamendo Pro would pretty much be out of business.
That may not matter to many artists, but it matters to me.
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I've always had a principled objection to ND (in my view it preserves the *most* destructive, boot-on-the-neck-of-free-speech aspect of copyright), and I would personally like to see it go. The lesser-evil argument might also apply there, but less so, if, as stated, it's the least popular license.
Nina Paley's argument about branding issues is strong, too. Since CC is unfortunately so associated with NC, maybe a stronger push give the "Free Culture Approved" licenses (already marked as such on the site) their brand.
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I'm battling with my self about logic of this and I've still not fully come to a conclusion. That said however the only way I've been able to get the rest of my band to agree to use CC at all is with the NC item. They are vastly more conservative and honestly much less interested and informed about this stuff than me and while they understand the benefits of giving out our stuff for free they do not want to see other people use our stuff to make money.
CC still needs the option and trying to force the change in the market by removing it is only really going to marginalise CC use to those who are already converted. In the case of my band they are people who likely wouldn't even think about this stuff but who are learning about it and actively using parts of it because of the NC.
NC is a safety net for people who are being caught up in a change they didn't see coming and don't yet fully understand and I think CC will weaken it's self by losing it at this point.
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Right to License
The Licensing of the Press Act 1662, an Act of the Parliament of England:
Printing presses were not to be set up without notice to the Stationers' Company. A king's messenger had power by warrant of the king or a secretary of state to enter and search for unlicensed presses and printing. Severe penalties by fine and imprisonment were denounced against offenders.
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License vs. Ownership
Copyright Law:
� 106 � Exclusive rights in copyrighted works...
(3) to "distribute"... to the public by sale or other transfer of ownership, or by rental, lease, or lending..
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Re: License vs. Ownership
� 109 � Limitations on exclusive rights:
Effect of transfer of particular copy or phonorecord
(a)...the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by
such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
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Re: Re: License vs. Ownership
Vernor:
We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner
(1) specifies that the user is granted a license;
(2) significantly restricts the user's ability to transfer the software; and
(3) imposes notable use restrictions.
Applying our holding to Autodesk's SLA, we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense.
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"Use" vs. Reproduction and Distribution
Copyright Law:
� 106 � Exclusive rights in copyrighted works...
(1) to "reproduce"...
(2) to prepare derivative works...
(3) to "distribute"... to the public by sale or other transfer of ownership, or by rental, lease, or lending...
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Commercial : use vs. reproduction and distribution
Creative Commons NonCommerical Clause:
NonCommercial � You may not "use" the material for commercial purposes.
Copyright law:
� 108 . Limitations on exclusive rights...
(a) ...it is not an infringement... for a library or archives... to �reproduce�... or to �distribute�... if�
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage...
Copyright Website:
a. Senate Report: Discussion of Libraries and Archives in Profit-Making Institutions:
The limitation of section 108 to �reproduction and distribution� by libraries and archives �without any purpose of direct or indirect commercial advantage� is intended to preclude a library or archives in a profit-making organization from providing photocopies of copyrighted materials to employees engaged in furtherance of the organization�s commercial enterprise, unless such copying qualifies as a fair use, or the organization has obtained the necessary copyright licenses. A commercial organization should purchase the number of copies of a work that it requires, or obtain the consent of the copyright owner to the making of the photocopies.
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Derivative works: case law on subject of history
...the protection afforded the copyright holder has never extended to history, be it documented fact or explanatory hypothesis. The rationale for this doctrine is that the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past. Accordingly, the scope of copyright in historical accounts is narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain...
But, where... the idea at issue is an interpretation of an historical event, our cases hold that such interpretations are not copyrightable as a matter of law...
� there could be no infringement because of the "public benefit in encouraging the development of historical and biographical works and their public distribution."
...To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter... "[t]here cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection."
Such an historical interpretation, whether or not it originated with Mr. Hoehling, is not protected by his copyright and can be freely used by subsequent authors.
The same reasoning governs Hoehling's claim that a number of specific facts, ascertained through his personal research, were copied by appellees. The cases in this circuit, however, make clear that factual information is in the public domain...
A verbatim reproduction of another work, of course, even in the realm of nonfiction, is actionable as copyright infringement...
Knowledge is expanded as well by granting new authors of historical works a relatively free hand to build upon the work of their predecessors...
Finally, we affirm Judge Metzner's rejection of Hoehling's claims based on the common law of "unfair competition.
Where, as here, historical facts, themes, and research have been deliberately exempted from the scope of copyright protection to vindicate the overriding goal of encouraging contributions to recorded knowledge, the states are preempted from removing such material from the public domain.
See, e. g., Sears, Roebuck & Co. v. Stiffel Co... (1964);
Compco Corp. v. Day-Brite Lighting, Inc... (1964).
"To forbid copying" in this case, "would interfere with the federal policy . . . of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain."
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