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Are Creative Commons-NC Licenses Harmful?
October 04, 2005
Creative Commons licenses are becoming popular in the world of podcasting as a way of sharing music for podcasts and licensing podcasts. The licenses are not without controversy, though.
In this article, Erik Möller offers a critique of some of the most popular Creative Commons options, the Creative Commons non-commercial licenses.
The Case for Free Use:
When the Creative Commons project published its first licenses in December 2002, it finally brought a sense of unity behind the free content movement. Instead of many scattered licenses, creators now have the option to pick the right license for their work using a simple tool. They only have to answer basic questions like: "Allow commercial uses? Allow modifications?"
The tool then recommends one of the licenses developed by the Creative Commons team. They are legally sane, simple documents, specially adapted for various jurisdictions. In short, the Creative Commons project has made life a lot easier for everyone wanting to share content.
One particular licensing option, however, is a growing problem for the free content community. It is the allow non-commercial use only (-NC) option. The "non-commercial use only" variants of the Creative Commons licenses are non-free, and in some ways worse than traditional copyright law -- because it can be harder to move away from them once people have made the choice.
There may be circumstances where -NC is the only (and therefore best) available option, but that number of circumstances should decrease as the business models around free content evolve. The key problems with -NC licenses are as follows:
Free content is no longer a fringe movement -- it is something millions of people use every day. Wikipedia, a free content encyclopedia built by volunteers, contains over 2 million entries in more than 100 languages and is among the largest 50 websites on the planet. Moreover, its growth continues, as does its integration into search engines. Google features Wikipedia definitions in some queries, as well as through the integration of Wikipedia mirror Answers.com in the top right corner of search results. Other search engines, such as Amazon.com's A9, Clusty.com, and Web.de have even integrated Wikipedia directly into their user interfaces.
This success if the result of less than 5 years of work. Clearly, free content is here to stay. But, in part to make uses like the above possible, free content sites like Wikipedia explicitly allow and encourage commercial use. As we will see, there are many desirable commercial uses. More importantly, however, if you choose an -NC license, your work will not be compatible with Wikipedia, Wikinews, Wikibooks, and similar free content projects.
One reason for this is that licenses like Wikipedia's, the GNU Free Documentation License, work according to the copyleft (or, in Creative Commons terminology, "share-alike") principle: You can make derivative works, but they have to be licensed under the same terms. You cannot make a derivative work through addition of -NC content, as you can no longer apply the (more liberal) "share-alike" license to the entire work.
Even where the license allows it, marking up regions of content as non-commercial and consistently following these boundaries is almost impossible in a collaborative environment. Imagine a website with collaboratively edited text that is partially -NC licensed. As text is copied from one region to another and modifications are made, it is likely that the license will be violated, or that it will have to be applied to more and more text to stay legally safe.
Finally, many free content communities reject -NC licenses simply for philosophical reasons like the ones outlined in this document. For example, the Wikimedia Commons, a media repository operated by Wikipedia's Wikimedia Foundation and containing more than 200,000 files, does not allow uploads under restrictive licenses such as the -NC variants. Yet, it is an immensely powerful archive: Any file in the Commons is instantly usable in all Wikimedia projects, in all languages.
Communities like Wikimedia do not exist for their own gain -- they try to provide and archive free content. Putting your own content under a license recognized by these communities will keep it alive, and will encourage people to make active use of it in many different contexts.
What is commercial use? The relevant clause out of Creative Commons non-commercial ("-NC") licenses, such as the "Attribution-NonCommercial" license, is this one:
You may not exercise any of the rights granted to You ...in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.
Many bloggers and blog communities on the web use advertising as a way to recoup costs and generate income. Popular bloggers, from Andrew Sullivan to Markos Zúniga (Dailykos), have turned their hobbies into professions, but even smaller publications often use Google Ads to make some extra money. Ask yourself if you really want to stop all these individuals from using your work.
Other examples of commercial uses include compilations which are sold. For example, if one MP3 music file which is licensed for non-commercial use only is included among thousands on a DVD collecting free music and sold for a small personal profit, that is a violation of the license. Note that it is not the amount of the financial gain which matters, it is the intention of the user. Intentions are, of course, difficult to prove, and in many cases, it is best to be cautious. In any case, any use in a corporate context would almost certainly forbidden, such as the inclusion of the file on a CD bundled with a computer magazine.
Existing copyright terms
For a long time, international copyright law has been written by content distributors. This has resulted in effectively infinite copyright terms. A work which is published in 2010 will remain protected until 2100 if the author dies in 2030 (the duration of protection in the United States and Europe is "life of the author plus 70 years"). This does not even take into account possible future, retroactive copyright term extensions (nor, of course, reductions -- but these have never happened so far).
While you may feel you are making a donation to the public domain when licensing your work under an -NC variant, you are effectively supporting the existing, extremely long international copyright terms. The restrictions on commercial use will remain in place until the copyright of your work expires which, for most practical purposes, is never.
To solve this problem, you could specify that the work falls back to a more permissive license such as CC-BY (attribution only), or to the public domain, after 5 years or any other amount. You could also choose a more permissive license to begin with.
The most obvious argument in favor of -NC licenses is that they prevent your work from commercial exploitation by others. However, keep in mind that in this age, distribution is something which cannot just be done by large corporations -- it can be done by anyone with an Internet connection or a DVD burner. Even large files like movies can be effectively distributed using mechanisms such as BitTorrent. This means that if your work is popular and of high quality, it will be available on the Internet for free -- because the license makes it possible.
The moment you choose any Creative Commons license, you choose to give away your work. Any market built around content which is available for free must either rely on goodwill or ignorance.
The potential to benefit financially from mere distribution is therefore quite small. Where it exists due to a predominance of old media, it is likely to disappear rapidly. The people who are likely to be hurt by an -NC license are not large corporations, but small publications like weblogs, advertising-funded radio stations, or local newspapers.
Indeed, to make a substantial profit with your work, a company will have to provide added value beyond what is available for free. An -NC license stops any such attempt to add value in its tracks. But there is an alternative. The Creative Commons "Share-Alike" licenses require any work derived from your own to be made available as free content, as a whole. (The licenses without a share-alike clause only guarantee that the part of the work created by you remains free.) Any company trying to exploit your work will have to make their "added value" available for free to everyone. Seen like this, the "risk" of exploitation turns into a potentially powerful benefit.
This principle works very well in many areas of free content and free software development. Most notably, the Linux operating system kernel is licensed under a share-alike (or copyleft) license. Many companies make use of customized versions of the kernel, for example, to include it in embedded devices. All improvements made by these companies can be used by the main Linux kernel development team. If the kernel was under an -NC license, the commercial use of Linux would be impossible.
Another interesting tale of commercial use is the German DVD version of Wikipedia. Produced by a company called Directmedia, it has quickly become a bestseller in Amazon.de's software category. Yet, to make that DVD, Directmedia had to cooperate with Wikipedians -- who helped to prepare the data by making it searchable and sortable, and to weed out articles not ready for publication. Directmedia has, in return, donated a substantial percentage of the profits from the DVD to Wikipedia's mother organization. It has also made a separate "donation" of 10,000 reproductions of public domain paintings to the Wikimedia Commons.
The Wikipedia DVD was a working business model because it provided added value: an offline reader software which did not previously exist, combined with a well-organized effort to whip the content into shape. It also showed that beyond the copyleft principles, any highly successful cooperation with commercial entities around free content is likely to depend on mutual goodwill. Another illustration of the same principle is Answers.com, a commercial Wikipedia mirror, whose parent company pays for one of Wikimedia's developers, and has also been one of the sponsors of Wikimedia's 2005 conference, Wikimania. None of this is required by the license.
Commercial use can be highly mutually beneficial where it does occur. The Share-Alike principle protects you from abusive exploitation, while not forbidding experiments. These experiments, however, are essential to build a true, innovative economy around free content. Especially when dealing with collaborative works, -NC makes such commercial experiments practically impossible, as every single contributor would have to give explicit permission.
The use of an -NC license is very rarely justifiable on economic or ideological grounds. It excludes many people, from free content communities to small scale commercial users, while the decision to give away your work for free already eliminates most large scale commercial uses. If you want to protect yourself against large scale exploitation, use a Share-Alike license. This applies doubly to governments and educational or scientific institutions: content which is of high cultural or educational value should be made available under conditions which will ensure its widespread use.
If you see work online which is licensed under an -NC license, please kindly thank the creator for making their work available for free, and ask them to change the license (feel free to include a copy of this text, or a link to the network location where you found it).
As a project with the goal to make licensing choices simple, Creative Commons has a responsibility to inform its users about the drawbacks of licenses which forbid commercial uses. Many individuals who choose an -NC license are unaware of the implications of such a decision. Hopefully, the license selection screen will include a brief summary of the arguments against licenses which forbid commercial use soon.
Finally, if you must use such a license for one reason or another, please do add an additional notice specifying the term of copyright protection you desire for your work. Otherwise, traditional copyright law will apply, and commercial use will be forbidden long beyond your death.
Erik Möller 2005. Originally published at Kuro5hin. This article is in the public domain. Feel free to use it for any purpose. It is also a living document whose editable main copy resides at http://www.intelligentdesigns.net/Licenses/NC. You are encouraged, but not required, to include this notice.
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