News

Ongoing discussions: NonCommercial and NoDerivatives

Timothy Vollmer, August 29th, 2012

A few days ago the Students for Free Culture (SFC) published a provocative blog post called “Stop the inclusion of proprietary licenses in Creative Commons 4.0.” The article urged Creative Commons to deprecate (meaning “retire” or similar), or otherwise change the way Creative Commons offers licenses containing the NonCommercial and NoDerivatives terms, because they “do not actually contribute to a shared commons.”

The SFC blog post raises important questions about the opportunities and challenges presented by the NC and ND licenses. The NC and ND licenses currently make up four of the six licenses in the CC license suite:

These issues have surfaced frequently over the years, in varied forums and by a variety of stakeholders. CC studied the NC issue from 2008 to 2009, investigating how online populations understand noncommercial use in the context of the NC licenses. The previous year, CC acknowledged the differences between the NC and ND licenses on the one hand, and BY and BY-SA on the other, by announcing placement of the free cultural works seal on the BY and BY-SA deeds as part of an “effort to distinguish among the range of Creative Commons licenses”.

At the same time, CC celebrates successful adoption of the NC and ND licenses, in part because those licenses signal a desire to be more open than the alternative of “all rights reserved.” Moreover, those adopters may eventually migrate to more open licenses once exposed to the benefits that accompany sharing. But this duality opens CC to criticism (if not also confusion) about our identity and mission.

CC committed to addressing this issue most recently with the launch of the 4.0 license process following consultation with the CC affiliates at the 2011 Global Summit in Warsaw. We fully intend to engage in a manner that is inclusive of a wide range of voices and interests. In this way, CC will be best positioned to make informed, thoughtful decisions with the input of our community (defined in the broadest sense), our affiliates, and our adopters (both would-be and existing).

While the specific challenges to NC and ND are not tied to the 4.0 versioning process per se, they’ve been raised in the context of the 4.0 NonCommercial dialogue. The decision not to change the definition of NonCommercial itself in 4.0 now gives way to the broader policy discussion of the role that the NC (and ND) licenses serve, and CC’s stewardship of and communications around those licenses.

As license steward, we are accountable to our stakeholders and global community, and must be transparent about decisions and how we act (or not) on the proposals that have been put on the table. These proposals span a wide range and include more clearly differentiating the licenses aligned with the Definition of Free Cultural Works from those that are not, to providing more education to licensors about the consequences of license choice, to disassociating Creative Commons from the NC and ND licenses altogether, among others.

Here’s what you can expect from CC:

  • Please continue to use the CC-Community list (as opposed to the CC license development list) as the venue for discussions about the various options, proposals, and considerations for NC and ND.
  • CC will collect, analyze and synthesize ideas and proposals, identify possible policy changes, and communicate potential implications of each. CC will look to these various proposals with the recognition that any policy change cuts across the entire community and organization, including education, data and science, legal, technical, etc. CC will share this information publicly in an easy to understand fashion that includes the relevant historical and contextual framing.
  • CC will hold stakeholder consultations that include adopters, CC affiliates, funders, and the broader community. These might take the form of email discussions, community phone calls or IRC chats, etc.

Other suggestions for actions are most welcome.

22 Responses to “Ongoing discussions: NonCommercial and NoDerivatives”

  1. Jan Morgenstern says:

    What a horrible idea. Not least thanks to the NC and ND clauses, Creative Commons has been paving the road from the rigid licensing schemes of yesterday to more modern and flexible ones that are very relevant in the real world. If they’re ditched, what’s left is yet another masturbatory exercise for anti-copyright ideologists.

    This would be a massive blow to all of CC’s laudable efforts towards gaining acceptance in the professional world.

  2. David REVOY says:

    I totally agree with Jan Morgenstern.
    NC and ND terms are certainly unpleasant for ‘open-all’ idealist and extremist, but Creative Commons is above that and can suit open project -AND- protect creator who want to share content while still protecting their work.
    And thats why I appreciate using CC licenses ; people tend to forgot that a CC-By-Nc-Nd work is still x1000 time a better sharing attitude for any content, than a single copyright line.

  3. As I had discussed with Mr. Morgenstern not long ago, I respectfully disagree.

    The Creative Commons are, in principle, a step towards the abolition of copyright. The non-commercial and non-derivative restrictions are temporary measures to attract people to the commons that still hold fears towards modification and commercial usage, not unlike the sampling, sampling Plus, and developing countries restrictions in the past, and even of the share-alike and attribution in a future.

    Although authors that use the non-commercial or non-derivative restrictions (like Mr. Morgenstern, or Richard Stallman the founder of the FSF, or even Lawrence Lessig himself) may have good reasons to keep them, it is my opinion that said restrictions are mostly kept because of ignorance, since the main reasons for them being chosen and kept become unneeded with the protections of copyleft (namely CC-BY-SA).

    In the case of commercial restrictions, most people tend to confuse commercial usage with copyrighted usage. Most people don’t want their work to be used by commercial entities. Many don’t want to lose their earnings to a random company. The Share-Alike restriction, however, may help dealing with copyrighted usage: companies that use a SA-licensed work and remix it must return the remixed work to the commons, which automatically prevents them from using it in copyrighted works (which means most of the usages that a company may make of a work). Also, nothing prevents the author from competing with others making profit from the work; as a matter of fact, the author has the intrinsical advantage of being the original author, and having true fans wanting to support their favorite works. Third, most commercial usages outside of a company are petty: usages in events, blogs, or even low-priced burned CDs/DVDs in the street; dismissable economical losses but great sources of advertisement.

    In the case of derivative works, most of the people who use them fear that, if they allow remixing, others will take their words, distort them, re-attribute the distorted version back to them, and therefore distort the expression of their opinions. The Attribution restriction and the moral rights deal with that case: works must be attributed properly by indicating that modified versions are not original from the author, and in case this does not happen, the original author has the right to sue for defamation.

    All the Creative Commons licenses are a way to free the distribution of works, some more than others, but eventually the foundation will require to push for freer licensing. Removing the NC/ND restrictions is not the best of options, since there are people who don’t match the above cases and still require them. The best course of action is promoting free licenses, while pointing out the main misconceptions that lead authors to use non-free licenses in order to avoid them (if so they wish). The new license selector has taken steps to do this, but in my opinion they’re still too self-restrained.

  4. Well, I’m relieved to know that nothing will prevent me from competing with others making profit from my own work. Thank you for pointing out my misconceptions.

  5. C. Reider says:

    I fail to see how restricting options makes the license more open.

    It’s my opinion that CC needs MORE nuance, not less.

  6. In support of Carlos Solis’ position:

    The key point about the protection of By-SA against commercial exploitation is just this: without a copyright monopoly to protect it, the 3rd party cannot realistically make much profit from the work unless they provide extra value (i.e. they cannot “exploit” the work). Without being the producer or original artist behind the work, they lack the standing to create that kind of value (beyond the actual costs of distribution).

    You, as the originator, on the other hand, have a special marketplace advantage. Fans will want to come directly to you. The only way you can lose this advantage is by selling your rights away in an exclusive contract.

    Third-party commercially-distributed By-SA works are strongly driven to the marginal cost in the marketplace (that is to say, the costs will cover only the added value of distributing the work). By comparison, companies who distribute By-NC work must do so at a loss or else they are violating the terms of the license. Since this is unsustainable, there is a damper on distribution relative to By-SA.

    Derivative works of By-SA content (say music videos made from By-SA music) must also be under By-SA by license requirement, which means you are entitled to use them.

    In either the By-SA or By-NC case, you are already allowing your work to be freely copied, which “competes” with any version you sell, so it’s hard to see how By-SA can possibly hurt you more than By-NC in reducing your sales.

    Add to that that a free-licensed work is more valuable because you can do more with it, and the net impact of By-SA may well be to increase your sales relative to By-NC.

    Based on this, I conclude that choosing By-NC rather than By-SA to support a commercial sales model is basically misguided. There’s likely to be very little difference, but what difference there is is mostly in favor of By-SA. Add to this the greater social value of By-SA, and it becomes the clear choice.

    Now, as a caveat, I will say that I don’t make a “living” selling any By-SA material, although I do pay a few bills every month on revenue from sales of creative works licensed under By-SA, and with very few exceptions years ago, I simply don’t use NC licensing at all. I don’t believe that switching to By-NC would earn me a dime more, though, and it might lose me some sales. It would definitely lose me good will from some of my readers.

  7. I see Terry Hancock’s point and would suggest that his viewpoint makes sense because of the form his work takes. One’s words are one’s words, and it is unlikely that his words could ever be used in any other context than what he intended. I suppose his work could be mashed into a rap song or something, but that would probably fall under ND language, not the NC.

    I also feel that the needs of a visual artist or musician are different from that of a writer because music and art can be used in a variety of contexts. Many commercial contexts may go against the wishes of the creator, or diminish their standing within their community, or even threaten their possible future in the marketplace.

    My argument does not hinge merely on material gain, but on the spiritual loss that occurs when one’s work is used outside of it’s intended context. An over-simplified version of the argument would be if certain passages from the Smith’s “Meat is Murder” were used to sell Butterball Turkeys. That may seem like a laughable example, but the real-life examples are equally ridiculous. Obviously we all felt a twinge of horror when Carnival Cruise Lines purchased Iggy Pop’s “Lust for Life” which cuts out right before he admits to having “had it in the ear before,” but I at least felt he had earned the right to sell out.

    Another such abomination which I witnessed was a cherokee jeans commercial that used a line from CCR’s “Fortunate Son,” to sell jeans. Over a montage of patriotic images and young people engaged in fourth of july festivities, the lyrics played, “Some folks were born, made to wave the flag, ooh that red white and blue.” The music then quickly faded out to show more people living it up and finally showed the Cherokee Jeans label. Who cares if the next line talks about how those people will gladly turn a canon on you, or that the entire song says “It ain’t me.” The ad didn’t need those parts. In both of my examples, the only succor is that the artists got PAID. Yes their music was manipulated to appear to be saying something it didn’t and that’s fine, because they were compensated for the commercial abuse of their work.

    We are still living in an age of Mass Media, where the tools to consistently reach millions of people is a source of billions of dollars in revenue for a handful of companies (apart from the occasional viral videographer). These commercial entities are the same ones behind the organizations we know and love for their ongoing lobbying to limit the public’s ability to share media, and I imagine, the main antagonists in the battle for an open and free internet, or an open anything for that matter. Any technology that allows many people to interact or transfer information without commercial interruption is an anathema to mass media corporations.

    Yet, what few people know is that these entities have another, much more open side. At each company there are entire departments dedicated to the art of collecting royalty free material to use in their “unshareable” products.

    Companies like Viacom encourage their music supervisors to collect royalty-free music to use in their TV shows, seeking to increase their profits by avoiding having to pay musicians to enhance the images onscreen. Many music supervisors consider themselves like DJ’s, compiling entire sets of free music to match the action on the screen, using music for which they have secured the free rights to. These deals capitalize on the artists’ hope of reaching a larger audience, while minimizing the obligation on the part of producers to credit the musicians. Viacom will even sell “Music From” CDs to a popular show without ever paying the artist, and limited requirements to site the artist. I know this because I was approached with such a contract, and have subsequently scoured the endings of shows to see if musicians have been credited, most times they are not, and this practice was in place for years before creative commons came along.

    When I choose NC-ND, it is this type of intentional exploitation/misuse that I seek to avoid. I have been contacted in the past by people wishing to use my music in a video game or an iphone app which was a commercial enterprise, and I have given permission to most of those requests. but without a NC license, I’d have no control of who uses my music and to what end. I don’t care about the money being left on the table, this is purely about being able to control the context of my musical identity.

    I have a job that is outside the music industry which allows me the freedom to make music which is not “commercial” or “popular” or striving in any way to sound like something you’d hear in an apple iPhone ad. On the other hand, if something I composed was discovered to be appropriate, I’d be loathe to see a billion dollar company who’s based their entire growth on IP and proprietary platforms use my music to sell another one of their devices, or more likely, to find my music acting as the background score in a reality series on VH1 as the doleful transition into a commercial block. Not only would it be a possible misrepresentation of my work but it would take work away from a professional score composer.

    In the early days of film. many vaudeville performers allowed their acts to be filmed and found within a couple years that nobody wanted to pay a dollar to see them live when the same act was played every few hours between features at the movie theater for five cents. Some performers were able to translate this renown into a career, but most did not. Production companies are already scouring free music sites to find music for their films. The hope is that this will create mutually beneficial alliances between filmmakers and musicians, and for some musicians, paid careers doing what they love.

    For musicians, the NC is an essential piece of the puzzle, to allow our work to be listened to on public and college radio, shared with friends and enjoyed, but when it comes time for a person to produce commercial work, the artist may choose within what context their work is presented.

    I hope some of this made sense, I wrote it amid a nasty streak of insomnia, which is not always conducive to coherence.

  8. @Terry: You’re giving reasonable arguments for you to prefer SA over other flavors, but why make that decision for others? Do you honestly think that anyone who has been relying on NC-ND so far will see the error of his ways and convert to SA if CC tries to force him into it? I predict that most of us would just abandon CC and go back to either all-out “all rights reserved”, or their own licensing concoctions. I certainly would.

    There are more reasons to pick NC than the obvious one. I for one DO want corporations to make money off my work, in fact I’m in the business of making that possible! For that, I need to communicate very clearly what’s allowed by default and what’s not. From the perspective of a decision maker who usually deals with traditional copyright, NC-ND is pretty simple to parse. It says “you can share this work in its original form with others, but call me if you wanna do anything else”. In contrast, SA says “you can do anything you want, provided that you put your own work under the terms of a license you probably don’t know anything about and don’t have the time to research and which will most probably be incompatible with your own licensing anyway, which in fact is what I’m secretly speculating on because I didn’t want you to use it commercially in the first place”. That’s just one aspect, and I didn’t even get into ND.

    I don’t think convincing people like me or David that SA is the better route for our use cases is gonna fly. You simply don’t know enough about our specific needs to make that call. The only logically sound argument for removing NC-ND I can think of is “Creative Commons wasn’t meant for people like you in the first place, catering to your needs was a mistake we’ll have to rectify”. That’d be a shame, but frankly I’d prefer that kind of honesty over the implication that we do what we do because we don’t know any better.

  9. I speak as founder and President Emeritus of the Open Source Initiative. The NC option in Creative Commons has always been a bad idea and should be removed.

    The reasons it should be removed have nothing to do with any of the deep philosophico/political positions usually argued in the debate, and everything to do with the fact that there is no bright-line legal test for “commercial activity”. This ill-definedness is reflected in community debates about whether commercial means “cash transactions” or “for profit”, and it is the exact reason the Open Source Definition forbids open-source software licenses from having such restrictions.

    The founding board of OSI, after studying the possibility, judged that an “NC” option in open-source licensing would create too much confusion about rights and restrictions, too many chilling effects on behaviors we did not want to discourage, and too many openings for vexatious litigation. What is only a source of contention within our community could prove very damaging to it if unsympathetic courts were to make even mildly adverse rulings.

    I have seem no reason to change that judgment, and I think it applies with equal force to Creative Commons. The NC option is a dangerous trap and should be removed.

  10. Nigel Tzeng says:

    I mark my son’s Soccer picture as CC-BY-SA-NC to allow the other parents and children on the team to use them for collages, calendars, christmas cards, school projects and other private uses while preventing their use in advertising without our express permission as could be done in a CC-BY or CC-BY-SA license. Depending on privacy rights that may or may not exist in other jurisdictions is a non-starter.

    i do not care about the profit potential of anyone. Nor do I care if an artist is restricted from reusing images of my kid in their “work” if that happens. Take your own pictures of kids playing soccer. You may not exploit the images of my kid or his teammates that I choose to share so other parents can enjoy them.

    If you can’t understand why this use case is important to millions of parents. Well…I going to not so respectfully disagree with you. CC-BY-SA-NC is used expressly to avoid another Chang v Virgin Mobile (http://www.nytimes.com/2007/10/01/technology/01link.html) while providing the maximum amount of reuse in the non-commercial “normal person” use domain.

    I hate extremists that have to screw with something useful to make it fit their tiny little world view.

  11. David Gerard says:

    I have no love of -NC and it needs to die in the long term, but we can’t just declare it so in the short term – or quite a lot of the people in the wider world using -NC will just go back to all-rights-reserved, and that would be a tactical loss for the very idea of sharing. -NC is a terrible idea for education, science or software, but the cultural world is a lot larger. I have an extended rant blog post on the topic.

    I think the correct course of action is:

    * Maintain a prominent site such as Wikimedia as a firm and uncompromising bastion of proper free content, without any -NC or -ND.
    * Continue to encourage sharing in the wider culture, using -NC where suitable.
    * Encourage people not to use -NC, but don’t actually remove the option yet.

    - but this is a tactical plan only.

  12. Andrew Bromley says:

    The ND option is useful to protect works that express a definite opinion. When somebody expresses an opinion it is unfair, and possibly libelous, to circulate a modified version of that opinion and associate it with their name. Quotes from such a work can be allowed, so long as either a reference to the original work is included, or a verbatim copy of the work is included as an appendix to the quoting work.
    The requirement for ND is not so much about preventing derivative works, but rather to prevent misrepresentation of a persons opinions on politic or religion etc.
    The requirement for a reference to the original work when it is quoted from is to allow interested parties to check what the original author actually meant. The news media is all too adept at quoting out of context and the link allows the quote to be checked in contest, and misquotes called out.
    Perhaps ND should mean no derivative with attribution of the original author, rather than no derivatives. The purpose of ND should be to prevent a person being associated with somebody elses opinion.
    An ND license is required to allow free circulation of work, while preventing as misrepresentation of a persons opinion.

  13. Carl says:

    OK, I have seen this argument a lot lately, that the -NC needs to die. Put simply, I would no longer put photos out for others to use if that happened. I have, on occasion, allowed usage of my images to people for commercial use, but I want to control that, and further, I need to be able to control that.

    Let me give a very simple example, a hobby photographer works for company A, but loves to take pictures. He puts them up for others to use, and puts a CC license on them that isn’t a -NC licenese, say a CC-BY-SA. Company B sees the image, thinks it is a great shot and would work perfect in their new marketing campaign for their product X. The design the add, follow all the rules of the CC (attribute me, and allow others the use, after all, this is a 1-4month add for them). So now some bigwig at Company A sees the add for competitor Company B, sees that one of his employees provided the image. Now the photographer faces loosing his job for violating the standards of business conduct (anti-compete). All OK by the laws of most states. Even if he manages to keep his job, he has a mark on him from corporate.

    So, if you remove these options, you remove my options to share. The only other options are for me to come up with my own license, or lock my work up. I would think many who are employees of a major corporation have this issue. So the question becomes, does the CC want hobbiest to participate, or are you good losing the support.

  14. Dan S says:

    I have been releasing CC-BY-SA content for many years and I understand the benefits of copyleft. However, I must warn you that removing the -NC and -ND options are in my opinion a very bad idea, in particular because they serve as a very good halfway point, a “gateway drug” for libre licensing. There’s an important example right at this moment:

    The academic community right now is urgently debating Open Access. CC licences are used. We need to take the majority of academics along with us, and enable them to share their important work with the extra reassurance that -NC and -ND provide. One day, the Open Access movement will reach its logical conclusion of full copyleft licensing. But please DO NOT BURN THE BRIDGES that will take us there.

  15. John David Galt says:

    I’m with C. Reider.

    The fact that the open source community cannot agree on whether NC means “no cash transactions” or “no sales for profit” is a problem, but the right answer is not to get rid of it, but to nail down what it means (or possibly to define additional versions of the license, so that both answers are available to content owners).

    Wasn’t the whole purpose of CC’s existence to remove such ambiguities, so that owners could distribute their works without having to worry about how some “creative” lawyer would interpret the license?

  16. Russ Nelson says:

    I agree with Eric: “It’s a trap!”

  17. Samuel Abram says:

    Galt and Reider have it right. The NC and ND options will exist as long as there’s a demand for it. Removing those options won’t make people who want those options automatically choose the copyleft ones; they’ll go somewhere else or use All Rights Reserved. The best solution is to better define “non-commercial”. However CC failed at this chance for 4.0. Sad.

  18. Robert Foster says:

    This and the copyright thing is confusing, specially for start up businesses. People might get anxious which protects which and what the function of them. All terms of protection should be made for the public accessible without complication and confusion. There shouldn’t be leaping from here to there when it comes to protecting whatever kinds of copyrights/lefts.

  19. Overton says:

    Well Eric has always been in favour of exploiting the work of others for personal private gain so no change there. The exploitation by Redhat and other capitalist corporations was the main reason I stopped contributing to OSS, if others want to line Eric’s pocket fine, but not me.

    Similarly I do not want the photography that I do exploited by Capitalist corporations like Monsanto, or to find some landscape photograph used in an advert for Royal Dutch Shell, or a bug photograph used by Rentokil.

    So I’ll use CC-NC thank you very much and should there never by a NC version 5 or whatever well I’ll just stay with what we have. Eric and david Gerard carray on finding some teenage kids to exploit for their various projects.

  20. Perry Hillman says:

    The confusion that Overton has is exactly the sort of misconception Creative Commons has to stop encouraging.

    First of all, he thinks “open source” is a system of exploitation, when it’s a system of sharing. The support that (at least, “Copyleft” or “Share-alike”, and very arguably also “permissive”) libre licenses draw from commercial ventures is substantial. It also provides protection from one-sided sharing (if not from the nature of the license, than from the choice to go with vendors who “give back” more, as in the case of khtml/webkit. Not a fan of Apple, but giving credit where due.)

    This might not apply so much to photos of loved ones, but the confusion caused by NC does. If I want to build something like the Internet Archive, do I have a right to host NC contents from outside sources, or not? Do I have to change my organizational structure to do so? What if the work is not a personal photo, but a work of art, or a book by Cory Doctorow?

    NC never results in the kind of simplified access Creative Commons was established to provide. It lends itself to the very Permission Culture expansion that runs right over us with censorship. If you have a personal photo of family, you might be better off with “All Rights Reserved” than NC, because by choosing an NC license (any license with the -NC- clause) you help make CC a wishy-washy, “We can’t tell you, let us ask our lawyers” kind of half-solution that people CANNOT possibly understand, at least Overton can’t, and more informed experts aren’t certain either.

    NC was an experiment, a quest for data and for understanding the public. Now you understand, CC, how hopeless it is. If it is deprecated, Overton can still use it. If it is not deprecated, CC will eventually be shunned (regardless of its massive collection) for something less confusing. CC is half of what it could be for clinging to licenses just as problematic and rift-creating (A deeply fragmented commons is still a “commons,” you say? Not half so much…) as the SAMPLING+ license. How many people want to go back to that piece of junk?

    Try THIS experiment: Don’t put NC in 4.0, and get your new data from whether the free culture commons GROWS, or find out how many people cling to 3.0 when non-free culture isn’t on equal footing with an ACTUAL commons license. But if the “stakeholders” aren’t up for it, (heck, I thought it was our culture at stake) then we can count on CC to do as little as possible, and prove its long-suspected inability to stand for anything. Good luck with that.

  21. Samuel Abram says:

    This might not apply so much to photos of loved ones, but the confusion caused by NC does. If I want to build something like the Internet Archive, do I have a right to host NC contents from outside sources, or not? Do I have to change my organizational structure to do so? What if the work is not a personal photo, but a work of art, or a book by Cory Doctorow?

    Of course you can upload NC content to the internet archive. The Internet archive is clearly a noncommercial site, and if a judge rules against that, I’ll eat my hat.

    You fundamentalist freehadis on this “freehad” against NC and ND conditions have to understand that not everyone is like you. Also, you have to understand that there IS a precedent in law for what constitutes as “commercial”, or else we wouldn’t have trademark law.

    Try THIS experiment: Don’t put NC in 4.0, and get your new data from whether the free culture commons GROWS, or find out how many people cling to 3.0 when non-free culture isn’t on equal footing with an ACTUAL commons license. But if the “stakeholders” aren’t up for it, (heck, I thought it was our culture at stake) then we can count on CC to do as little as possible, and prove its long-suspected inability to stand for anything. Good luck with that.

    I know for a fact that I will stick with © if CC ever deprecates the NC or ND just to satisfy the zeal of the freehadis.

    Look freehadis, if you really want free culture, we have to change copyright. Then LET’S HAVE THAT DEBATE! Getting rid of the NC and ND CC options will likely drive people away of creative commons for people who want them, and there is a demand for them. There wasn’t a demand for the licenses that were deprecated. I’ll be damned if I let a tyrannical and vocal minority hell-bent on imposing their Orwellian definition of “freedom” on the rest of us have their way.

    You freehadis are no better than the MPAA. I’m dead serious when I say that.