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:

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.

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.

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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  1. icon
    nospacesorspecialcharacters (profile), 28 Aug 2012 @ 4:08pm

    Couple of objections...

    One objection I have to dropping NC is the unfortunate case we already see in the music industry and with YouTube...

    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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