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Creative Commons and Proprietary Licences

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With the Creative Commons 4.0 licence just on the horizon, there have been some questions raised about the use of proprietary licences. Perhaps the most comprehensive trashing comes from the freeculture.org article Stop the inclusion of proprietary licenses in Creative Commons 4.0. Their main gripe with CC is the use of NonCommercial (NC) and NoDerivatives (ND):

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 its 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 Maintaining commercial monopolies on cultural works only enables middlemen to continue enforcing outdated business models and the restrictions they depend on.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, its use has been in slow and steady decline.

Practically, the NC clause only functions to cause problems for collaborative and remixed projects. It prevents them from being able to fund themselves and locks them into a proprietary license forever. For example, if Wikipedia were under a NC license, it would be impossible to sell printed or CD copies of Wikipedia and reach communities without internet access because every single editor of Wikipedia would need to give permission for their work to be sold. The project would need to survive off of donations (which Wikipedia has proven possible), but this is much more difficult and completely unreasonable for almost all projects, especially for physical copies. Retaining support for NC and ND in CC 4.0 would give them much more weight, making it extremely difficult to retire them later, and continue to feed the fears that nurture a permission culture.

My own thoughts on these two licences are mixed. I find the concept of No Derivatives problematic because its only purpose seems to be stifling innovation. I’m slightly less convinced by the black and white arguments made against the Non Commercial clause. As a friend pointed out, he finds the NC clause useful exactly because it protects him from having others make a financial profit from his work. Yes, there are problems here, as outlined above, but I think in the case of NC, we should strive for clarification rather than necessarily getting rid of the clause. Ultimately, I’m quite happy having diversity in licences, exactly for the reason that someone can tailor them to suit their specific needs. Still, much work needs to be done on making the licences clear so that users know exactly what they are getting themselves into. The case to be made is for educating users in particular licences, rather than lobbying for certain elements to be removed.

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