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Next Steps: NonCommercial and NoDerivatives Discussion

Timothy Vollmer, December 17th, 2012

In the last few months there has been quite a bit of discussion about what CC should do with the non-free licenses. Some have called for Creative Commons to retire or otherwise change the way we offer licenses containing the NonCommercial and NoDerivatives conditions because those licenses do not create a true commons of open content that everyone is free to use, redistribute, remix, and repurpose. These suggestions have been made by the Students for Free Culture, QuestionCopyright.org, the Open Knowledge Foundation, and others.

Creative Commons offers 6 licenses. The BY and BY-SA licenses are considered “Free” because they grant to users a set of freedoms including:

  • the freedom to use the work and enjoy the benefits of using it
  • the freedom to study the work and to apply knowledge acquired from it
  • the freedom to make and redistribute copies, in whole or in part, of the information or expression
  • the freedom to make changes and improvements, and to distribute derivative works

There are four CC licenses that are considered “non-free” because they do not provide for all of the freedoms listed above. The CC licenses that contain the NonCommercial and/or NoDerivatives terms are considered non-free. These licenses are BY-NC, BY-ND, BY-NC-SA, BY-NC-ND.

Back in August we wrote a blog post about the ongoing discussion around NonCommercial and NoDerivatives and promised to keep the conversation going. We noted that these issues have surfaced frequently over the years, and we reminded readers that CC studied the NonCommercial issue and has worked to try to clearly mark and otherwise communicate the differences between the Free and non-free licenses. For example, CC has placed a “Definition of Free Cultural Works” seal on the BY and BY-SA license deeds. We also included it in the most recent upgrade of our license chooser.

We’re taking a close look at the arguments and recommendations from the various individuals and groups and have generated a few TO-DO items to attempt to address the issues raised. We have aggregated these proposed actions on the CC wiki. We’d appreciate any feedback you have–you can do this over at the CC-Community email list or the wiki Talk page.

Some of the draft actions include the following (you can read more about them on the wiki page):

  • Improve information about which CC licenses align with definitions of “Free licenses”
  • Revive the color-coded “license spectrum” graphic
  • Provide descriptive examples of adoptions of Free and non-free licenses
  • Gather feedback about changing the name of “NonCommercial” to “Commercial Rights Reserved”

This last point warrants a specific mention here, as it would be a big (and potentially sensitive) change to the branding of the Creative Commons NonCommercial licenses. This proposal is for a simple renaming of the “NonCommercial” license element to “Commercial Rights Reserved,” without any change in the definition of what it covers. Renaming it to something that more accurately reflects the operation of the license may ensure that it is not unintentionally used by licensors who intend something different. For more information about the idea and rationale behind this proposal, please see the CC wiki page on the topic.

Again, if you have feedback on the proposed actions or other ideas that haven’t been captured here, please contribute to the CC-community list, the wiki Talk page, or in the comments below. We appreciate your thoughts and suggestions.

18 Responses to “Next Steps: NonCommercial and NoDerivatives Discussion”

  1. I am going to argue for for no change. The majority resources licensed under Creative Commons use one or another of the Non-Commercial license. Many large collections, such as MIT OpenCourseWare, use the NC variant. Many people, including myself, reject the argument that these licenses are ‘less free’. The NC license ensures that the materials will be accessible to the end user without cost, eliminating a major barrier to use. They It eliminates one of the major objection have to placing their work in the real of open public access. It should be retained, and promoted as equally open and equally free.

  2. Six licenses are five more than optimum. Most users do not understand the meaning of one single license. Very often I read: “Licensed under a CreativeCommons license.”

    In the software world there is something comparable to CC-BY-SA and something like CC-BY. CC-BY is more free, nearer to CC0 and nearer to the natural behaviour of usual people that copy content for their blogs or Facebook timelines.

    You should decide if you want the restrictions of SA and choose between CC-BY and CC-BY-SA. One simple CC license will be used more often than all six at the moment. Get rid of NC and ND asap.

  3. Aaron Wolf says:

    I strongly disagree with Stephen. I believe the problems with NC need to be highlighted. The primary effect of NC is not that it affects whether material is available at no cost or not. The primary effect of NC is that no project can combine material from Wikipedia with material from MIT OpenCourseWare. Wikipedia alone overshadows the NC content in prominence.

    The idea that NC “ensures access without cost” is purely hypothetical and fear-based. To defend this position, anyone making this claim has the burden of proof and must provide evidence that BY-SA material has resulted in any reduced access vs NC material. I challenge anyone to find such evidence.

    The objection of wishing to stop others from doing anything commercial with your work is a limiting and thus opposed to freedom position. If you license with NC, it could be that you stop some commercial use, but this may have no impact on anything else. Thus, the only thing that happened was that use was blocked. This is definitely less free, period.

  4. Leo Larsson says:

    The use of the “more permission URL” should be good enough without change to the existing licenses. I opt for no changes. I think the NC and ND are valuable and could be used by additional “+A” for Authorized use. The point with “+A” would be to report usage of my CC material with a link or email back to me (better incentive to share and to learn from others that use and develop my material in lifelong learning – like the good “postcardware” movement), or to specifically stop use of material in a contra productive way (used in a way that I don’t want my name associated to the context) as has been reported in some cases. The “more permission URL” allow me to do just that where the only alternative is a plain copyright. Use of copyright is contra productive as I would grant use of the material for free on request but will never show in search for such material. Here I believe NC and ND are much valued license feature to keep in the toolbox.

  5. It’s strange that anyone can argue that NC license is “equally free” to truly free licenses. Of course it is not – for user of a work. It imits what he or she can do with a work. And free licenses are all about users rights. And really, we are already past this discussion. We have held it some 20 years ago.

  6. Richard Overton says:

    That NC works cannot be used wikipedia is a problem wikipedia imposes on itself. Additionally if you have had any interaction with the wikimedia Commons people you’ll appreciate that the exclusion of NC content from their grasp is a benefit for creators in itself. Wikimedia Commons is a major cause of works not be made available under the CC-BY-SA license, Take for example the photographer of an image of a woman and a horse that was cropped by Commons, tagged as an example of zoophilia, you can bet that photographer won’t be making other works available. Or better yet the German Federal Archive that started out by donating 80,000 images to commons, then found the images with the reference numbers and institution credits cropped off the images, by Commoners, being sold on eBay. No more images will be released.
    http://dawitrichter.wordpress.com/tag/bundesarchiv/

    Example
    http://commons.wikimedia.org/wiki/File:Bundesarchiv_Bild_183-0806-0003,_Berlin,_Reichskanzlei,_Ruine.jpg

    Outside of wikimedia Commons facilitating eBay resellers, others of us are developing a non-commercial Commons where the tax avoiders and scofflaws like Google are flipped the bird:
    http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/9739039/Googles-tax-avoidance-is-called-capitalism-says-chairman-Eric-Schmidt.html

  7. Creative Commons should remove the “free culture / not free culture” license designation from the License Chooser. This is insulting! One person’s definition of freedom is not the same as someone else’s. For example, I have made, and continue to make, principled, informed arguments that Noncommercial is more free than licenses that give away commercial rights.

    These organizations should limit communication about their preferences to their own web pages. CC should not take sides on this issue. (not even my side! :)

  8. Another suggestion: perhaps CC could provide links to pages expressing opinions about which CC licenses to choose. This should be off to the side, not part of the license chooser per se, and should not be limited to groups with one particular preference. This could be a useful service. Wiki-style, perhaps not even on the CC site per se, might be a good fit.

    Philosophical, this would be a good fit – it could be an open venue for open discussion!

  9. I’d argue for no change, too. So many people are using NC, that I think a change could actually disrupt the group.

    I personally hate seeing NC and ND, but I hate it much, much, much less than seeing no CC license at all!

    To put it differently: If you use NC and ND, you are already in the club of the cool people who allow me to give your works to my friends. You are just not in my fraction, which wants to foster a professional community of people who use free works.

    And I like it that the license chooser shows that NC and ND are not considered free. With that every user of those licenses knows, that there are people who will not accept their works as real part of the commons, so they don’t get surprised later.

    I think informing users is much better than taking options away. Informing people shapes society. Taking options away just splits it.

  10. I agree that NC is based in fear. But so what? People are afraid, so let them take small steps into the commons instead of forcing them in.

    And yes: NC stops use. Some artists WANT that. They want to keep their professional competition from using their work while still allowing their fans to use it. That is a real wish – it’s not compatible with free culture, but it is a wish people actually have.

    So let them mark their works NC. That’s a clear indicator for me to stay away from them, so I can avoid wasting time. By marking their works NC, they add a technical identifier which my browser could use in the future to tell me that a given link is not worth navigating to – while showing others that the given link contains stuff they are allowed to give to their friends and maybe use in a private blog.

  11. To make my point clearer: There are already people who get angry at the “no free culture“”warning, and license drafting is a social process, so the social sensitivities of that group are important.

  12. Aaron Wolf says:

    Arne, I agree. I’m ok with keeping the options. I just want it absolutely clear that NC causes compatibility issues such that it blocks far more than commercial use.

    The message I want to spread is: “choosing NC means you are stopping anyone from mixing this with content from Wikipedia, even when the use is fully non-commercial. This is because NC is incompatible with the BY-SA license. Most concerns about exploitation of your work by commercial interests are adequately addressed by BY-SA.”

    That’s quite simple. If everyone choosing NC acknowledges this effect, then fine, we can keep the NC as an option. Whether it should be renamed CRR, I don’t know. I see the arguments on both sides of that. I certainly wish it had been named CRR originally.

  13. Aaron Wolf says:

    Upon further reflection, I think Thomas’ points above are excellent. The world of Free Software would be greatly hampered if there had been prominent NC or ND versions ever. There are in fact some software licenses like that, but they are relatively obscure.

    That said, it is much harder to get rid of them now that they are here. Working to emphasize the Free licenses may be better than simply cutting off NC at version 3.0. It’s impossible to delete the existence of the past licenses. It would have been nice for the original CC not to be so convoluted with multiple license options. These are lessons new systems can try to learn from. But we do have to live with things where they are, and we don’t want to divide the community any more than is inevitable.

  14. Richard Overton says:

    @Aaron You still don’t seem to understand. There is no confusion in the mind of many that use the NC license or the ND licence either. If you think that people are choosing the NC licence by mistake then you have really missed the point, they are using the NC licence to exclude a cost-free use by commercial corporations whilst allowing others. SA is completely inappropriate for many types of works, it doesn’t work for most reuses of images or any other work which is presented in a completed form.

    NC is used by many in an attempt to ward off enclosure of the Commons and share-cropping by corporate interests.

  15. Leo Larsson says:

    NC, ND and SA are used and looks like it have a clear function in the CC eco system. Looking at the description above may indicate a missing service that makes better use of the “not so free” licenses. I would suggest a registry service where the user can obtain a personal CC ID and state that those licenses be valid when a Trackback is made to the user.

    In this way a user can list CC works published using commercial or non-commercial hosting services. When used commercially the marking with attribution and ID wold provide a key to find the full rights and users can follow and learn from the usage of the CC work over the world.

    I don’t suggest setting up file hosting or some file verification system (md5sum). A simple WordPress trackback system open for user registration should be enough where the complete license and link to original file could be published. This is also a way to ensure that works marked CC can be verified even after a users account on other hosts are removed for some reason.

    Just a way to look at the problem on the flipside and se whats missing and causing confusion. Shared under CC.

  16. Karl Fogel says:

    [This comment was posted the day the article came out, but only modded through now due to a technical snafu.]

    Before addressing Stephen’s comment, I’d like to say it’s great to see Creative Commons engaging this issue so seriously, and the proposed actions seem very constructive (especially the rebranding of NC as “Commercial Rights Reserved”). A blog comment probably isn’t the place to address all the pros and cons of the non-free licenses, so I won’t do so here, but CC’s own summary in the CC wiki lays out the issues very well.

    Stephen, I think your definition of freedom is idiosyncratic and would not be recognized by most people who use and distributed CC resources, even under the non-free (meaning -NC and/or -ND) licenses. It’s simply not true that NC license guarantee the material will be accessible without cost — even if monetary cost were the only important component of freedom, which it’s not. When material is licensed in a way that allows commercial use without permission having to be asked first, all sorts of possibilities open up!

    Take translation, for example:

    I wrote a book that was published under CC-BY-SA, and it has had subsidized translations made and was then published and sold in some EU markets. It is unlikely the organizations that funded this work would have done so if they had not had a clear license requiring no negotiation (in part because the resultant derivative works themselves could not have been freely licensed if the original were not). The overhead of rights negotiation is a serious obstacle to unanticipated, permission-free sharing and derivation that has commercial aspects — and much real-world activity inevitably has commercial aspects.

    This is not necessarily an argument that the non-free licenses should not be available. My point is that the two halves of your last sentence do not go together: “It should be retained, and promoted as equally open and equally free.”. Maybe the non-free licenses should be retained… But they are not equally open and equally free when compared with the truly free licenses, and CC is absolutely right not to promote them as such.

  17. Aaron Wolf says:

    @Richard:

    I understand fully.

    You wrote: “There is no confusion in the mind of many that use the NC license or the ND licence … they are using the NC licence to exclude a cost-free use by commercial corporations whilst allowing others.”

    And thus, the NC license is failing them. I made a video that was completely non-commercial, and it happened to use several images from Wikimedia. Thus, everyone who chose an NC license BLOCKED my use of their work. So the last part of what you wrote, “allowing others” was a failure. NC failed to achieve what you and I both understand to be the goal of choosing NC. Furthermore, I only know for certain that my use was blocked and have no evidence that the photos I considered were even of interest to any commercial corporation. It is fully possible that the only effect of these photographers choosing NC was the blocking my non-commercial use.

    You also wrote: “SA is completely inappropriate for many types of works, it doesn’t work for most reuses of images or any other work which is presented in a completed form.”

    I have no idea what you mean here. SA works perfectly fine for images or videos or complete works of any type. The additional point is that SA is also adequate to discourage exploitive commercial use, thus reducing the need for the highly problematic and restrictive NC license.

    You wrote: “NC is used by many in an attempt to ward off enclosure of the Commons and share-cropping by corporate interests.”

    You are misunderstanding here. ONLY the SA term wards off enclosure of the commons. NC does not serve that function.

  18. Alex says:

    @Aaron : “There is no confusion in the mind of many that use the NC license or the ND licence … they are using the NC licence to exclude a cost-free use by commercial corporations whilst allowing others.”

    @Richard : “… I happened to use several images from Wikimedia. Thus, everyone who chose an NC license BLOCKED my use of their work.”

    Richard, wouldn’t it be equally correct that SA restricted your use? In fact SA even blocks other types of SA.

    @Aaron : “SA is completely inappropriate for many types of works, it doesn’t work for most reuses of images or any other work which is presented in a completed form.”

    @Richard : “SA is also adequate to discourage exploitive commercial use, thus reducing the need for the highly problematic and restrictive NC license.”

    Richard, you are making a personal value judgement that may be inappropriate in many situations. As a software developer, I appreciate SA but think it is often absurdly applied to prose. I host websites that republish copyrighted material in digital form. When negotiating with publishers I am often given only two options: “commercial rights reserved” or “not available”.