Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media


Selection from Cites & Insights 6, Number 3: February 2006


©2 Perspective: The Commons

What NC Means to Me

Two papers inspired this Perspective, which is also a formal declaration of increased permissions for Cites & Insights and Walt at random. One, “Are Creative Commons-NC licenses harmful?” is by Erik Möller. The main copy is at www.intelligentdesigns.net/Licenses/ NC, as a wiki article accompanied by discussion. I’ll get to the second later.

Are Creative Commons-NC licenses harmful?

Möller dislikes the NC (NonCommercial) Creative Commons option, speaking as part of the Free Content community. I’m capitalizing Free Content because it’s clear that this community, at least as represented in this paper, has its own definition of “free.” As far as I’m concerned, everything in Cites & Insights is free content—but it’s clearly not Free Content.

One particular licensing option, however, is a growing problem for the free content community. It is the…non-commercial use only (-NC) option. The "non-commercial use only" variants of the Creative Commons licenses are non-free, and can in one way make the situation worse than the traditional copyright model: many people can or will make the licensing choice only once. In a collaborative context, license changes can be difficult or even impossible. It is therefore crucial that the choice is an informed one.

It’s an interesting twist on language to claim that NC-licensed content is “non-free.” You’re free to use, reproduce, or distribute NC-licensed content—you just can’t charge for it. Apparently the Free Content community gets to define “free” as it chooses.

The key problems with -NC licenses are as follows:

* They make your work incompatible with a growing body of free content, even if you do want to allow derivative works or combinations.

* They may rule out other basic uses which you want to allow.

* They support current, near-infinite copyright terms.

* They are unlikely to increase the potential profit from your work, and a share-alike license serves the goal to protect your work from exploitation equally well.

The second and bullets are incorrect: The NC license can’t prevent a copyright owner from allowing other uses. The last is an interesting assertion, one that says you’re never going to get more returns from any material that’s already appeared. This presumes that no CC-licensed blog has ever been turned into a book, that nobody distributing CC-licensed music has ever successfully turned it into a CD for sale, that no publisher has ever seen a CC-licensed article and paid to use it. Sure, that won’t happen with most of the blogs or photos or other stuff carrying Creative Commons licenses, but “unlikely” is a far cry from impossible.

Incompatibility?

The “incompatibility” section of the article seems mostly to say that Free Content communities won’t abide NC content. The reasons given are opaque enough that you’d need to read the original article. The Free Content community apparently insists that commercial use must be allowed for content to be free (if you can’t sell it, it isn’t free). It’s an interesting philosophy. It gets even stricter:

All Creative Commons licenses make it clear that it is possible for the content creator to give special permission that goes beyond the terms of the license to any interested party. However, this, too, is insufficient. Any large free content community is likely to reject content under special permission, because it would exclude valid third party uses: from local initiatives that make use of the content in schools or community newspapers, to companies which distribute DVDs or printed copies, to useful and compliant mirror sites. This is true for Wikimedia as well: material which is under special permission is explicitly forbidden and will be deleted.

So the policies I’m going to state later in this piece don’t matter for Wikimedia and other Free Content sites. Apparently, it’s “our way or the highway”—use a Free Content-approved license or you’re shunned.

Long copyright terms

The “existing copyright terms” argument is a red herring. If you want to shorten the term of any protection, you can always add a Founder’s Copyright (dedicating your work to the public domain after 28 years) or other term limitation. The licenses that bear the Free Content Seal of Approval also fall within current copyright terms.

Non-commercial

Here’s the key clause in the Creative Commons NC license: “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.”

That seems straightforward and flexible. It does not say, “You can’t ever make money from this content.” It says your uses can’t be primarily intended for or directed toward commercial advantage or private compensation. The article goes on to suggest that NC would bar use on any ad-supported blog. I don’t see that at all. Compilations are another matter, and I would agree that NC tends to prevent use of an item in a commercial compilation. That’s likely to be one reason people use BY-NC instead of BY on its own.

The most obvious argument in favor of -NC licenses is that they prevent your work from commercial exploitation by others. First, it is important to realize that there are commercial scenarios which are not affected by your license choice. This includes support and tutoring, documentation, commentary, sampling, and many other uses around the work which are legal regardless of the license. Whatever your license says, the user does not have to accept it, and can simply treat the work as if it was under normal copyright. What -NC can regulate are distribution and modification of the work itself beyond what the law allows.

True: NC doesn’t prevent fair use. The article goes on to say, in essence, because of the internet you’re never going to make money from distribution of NC content: “The potential to benefit financially from mere distribution is therefore quite small.” Planning to collect your essays into a book or sell CD-quality copies of your songs, on a CD, for a reasonable sum? “Where [the potential to benefit financially] exists due to a predominance of old media, it is likely to disappear rapidly.” Books, CDs, any physical medium—they’re all doomed anyway. Indeed, the writer rejects the possibility: “Any market built around content which is available for free must either rely on goodwill or ignorance.” Or added value, as in the possibilities I mention here.

Now things get strange. Möller says any true Free Content must be available for commercial use—then goes on to offer this option:

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.

How can there be commercial use if the derived work must be made available as free content? There’s a contradiction here, or an oxymoron. The remaining discussion has this through-the-looking-glass quality: NC is bad because a compilation would have to be given away; Share-Alike is better because…a compilation would have to be given away. Huh? Apparently there’s “commercial use” which is also “free” but isn’t “free” enough for the NC license.

One of the suggestions in the expanded version of the article:

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).

But I read the text, and it makes no sense to me. I’m insulted by being told that nobody would buy a compilation of my work—and bemused because I can use an alternative license that simultaneously allows commercial use and requires that the commercial product be free. Apparently, I don’t have the secret Free Content decoder ring.

There follow admonitions about CC’s responsibility to explain how much you lose by using NC, and again pointing to the incomprehensible explanation in this document.

Hopefully, Creative Commons will contribute to the effort of informing creators that the seemingly simple choice of forbidding commercial use is not so simple at all.

I must be very simple indeed. Nothing in the shorter 10/4/2005 article or the complete intelligentdesigns.net version convinced me to move away from BY-NC or helped me understand how Free Content-approved licenses were better. Maybe I’m misreading the article; if not, the argument doesn’t make sense.

Proposed Best Practice Guidelines to Clarify NC

That’s not quite the full title, which ends with “the meaning of ‘NonCommercial’ in the Creative Commons licenses” instead of “NC.” I won’t provide a URL for the three-page PDF; the URL is too long. Go to the Creative Commons blog, specifically to this post: creativecommons.org/weblog/entry/5752. It points you to a list entry which has the PDF as an attachment (!), the link “here.” It also points you to a truly remarkable list of “yes and no” hypothetical cases at wiki.creative­commons.org/wiki/NonCommercial_use_cases (all addresses in C&I are stripped of the “http://” since they’re not live links anyway).

The best practice guidelines—which at this point are in draft form and represent guidelines, not a formal expansion of the license itself—are “intended to assist creators and users to better understand the scope of permitted uses” beyond fair use.

If you’re planning to create something with a Creative Commons license that includes the NC provision, or if you’re thinking of using something with such a license, I strongly recommend that you read these guidelines, just as I recommend that you read Möller’s article, since you may not see the contradictions that I see. As I read through the guidelines, I realized that they overstate the protections I wish to retain for C&I and W.a.r.

The guidelines appear to forbid any use by commercial entities other than copy shops or ISPs acting on behalf of individuals and nonprofits. A footnote even suggests restricting “nonprofit” from the IRS definition to one excluding religious organizations.

Then, if you are a person or a nonprofit, there are seven other questions to be answered before you can be sure that your use is covered by the NC clause. Briefly (omitting some portions of definitions), the questions boil down to:

Ø    Is the content being used to advertise third-party products or services? If so, it’s not NC.

Ø    Do you have to view such ads to get to the content? If so, it’s not NC.

Ø    Is the content used in conjunction with such ads where it’s the primary draw “or a substantial amount”? If so, it’s not NC.

Ø    Is money changing hands for a service provided in connection with the work? If so:

Ø    Is the money incidental to an NC purpose, for example paying a copy shop for the costs of producing course packs? If so, it is NC.

Ø    Is money changing hands in connection with the use of the work itself? If so, there are four possibilities, two OK, two not; the OK cases are where another work includes an NC-licensed work that’s not a big piece of the overall work (that’s oversimplified) or where the money is an optional contribution.

Ø    Is money changing hands for a derivative use? If so, the cases are similar to the previous question, but are affected by whether ShareAlike is also part of the license.

Trust me: the complete document is clearer than this compressed version. It also strikes me as more stringent than I wish to be. So, for now at least, I’ve drawn up my own interpretation.

Allowable “NonCommercial” Uses

I regard this interpretation as binding on all original material published in Cites & Insights or on Walt at random from now (January 29, 2006) until such time as this interpretation—which will be on my website at waltcrawford.name/ncinterp.htm and at cites.boisestate. edu/ncinterp.htm—is removed from those websites and a revocation notice appears in Cites & Insights and in a blog posting (if W.a.r. still exists).

At that point, usage restrictions would fall back to the Creative Commons BY-NC license or any more flexible license I may have chosen to adopt at that point. As with the CC licenses themselves, a revocation notice would only affect future content, not content that has already appeared.

The short form

If you’re making money or trying to make money primarily or substantially by using more than fair-use portions of my stuff, I want a piece of the action. Otherwise, all I want is attribution—but I always appreciate notification (never mandatory) and a copy of any published work (also never mandatory).

That short form differs from the NC interpretation in one way: I don’t care whether you’re a person, an IRS-classified nonprofit, a political nonprofit (one that IRS doesn’t recognize for deductions), or a commercial entity. If your uses aren’t designed to make money primarily or substantially by using my stuff, fine with me.

The longer form

I don’t particularly care who uses my stuff. I don’t have to agree with your politics. I don’t have to agree with your business model.

You may use original material that I distribute under the Creative Commons BY-NC license under most circumstances, as long as you attribute it to me properly. Exceptions are cases where my material is used in a (planned) moneymaking venture where comparable material would be paid for as a matter of course under normal copyright law.

So, for example (all of these, I believe, extensions to the NC permissions), and noting that all of these uses require proper attribution and that you might let me know about them as a courtesy:

Ø    You can reprint one of these essays in a membership publication even if the editor is paid and there are ads, as long as most contributors aren’t paid.

Ø    You can reprint one of these essays in any publication or other medium that’s free (and freely available) to the end user, even if it’s sponsored at the back end and the publication or other medium contains ads.

Ø    You can repost a blog entry or one of these essays on a blog or website that carries ads, even if the ads are contextual ads that pop up because of the content in the essay or the post, unless the primary purpose of the blog or website is to post other people’s essays and gain ad revenue from them. You’d have to be pretty egregious to have difficulties here. If you’re making $10,000 a month from ads and sponsorship, 90% of your material is original, and you decide to quote an entire essay of mine with credit—well, good for you!

Ø    If you’re compiling a book of essays and most authors are not paid for their chapters, you can include one of these essays even though you and the publisher will presumably make money from the book. I would obviously appreciate notification and a copy of the book. (Consider this the book-chapter exception where most authors are academics or otherwise give away their work.)

Ø    On the other hand, you cannot compile a book of C&I essays, add an introduction or one or two unpaid essays, and sell that without my permission and a license fee. (Otherwise, I wouldn’t have the –NC license at all!)

Ø    None of this is creative fiction, at least not intentionally. I’m not sure what “derivative” means for nonfiction essays, other than translations or abridgements, but if you want to derive work from what I’ve done in CC-licensed form, that’s your business. I don’t use the NonDeriv clause. (I can see that translation or abridgement constitutes derivative work. If you want to translate one of my essays, provide proper attribution, and sell the results, I believe you’ve added enough value to deserve the proceeds. More power to you.)

One or two of these bullets grant significant additional rights. The second one means a library automation vendor could reprint the entire Library 2.0 and “Library 2.0” issue with its own ads attached and pass it out for free, as long as it’s properly attributed. If the vendor goes on to say “Walt Crawford supports Miracle Library Software” there’s a problem—but it’s not a copyright problem.

I don’t buy the Free Content argument. I still believe that at some point it may make sense to bundle a bunch of these essays, probably with added content, as a PoD book or even a “real book.” I want to reserve the right to do that.

I hope that’s clear enough. It won’t satisfy Free Content people, but that’s not my problem.

Cites & Insights: Crawford at Large, Volume 6, Number 3, Whole Issue 73, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at RLG.

Cites & Insights is sponsored by YBP Library Services, http://www.ybp.com.

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Opinions herein may not represent those of RLG, YBP Library Services, or Boise State University Libraries.

Comments should be sent to waltcrawford@gmail.com. Comments specifically intended for publication should go to citesandinsights@gmail.com. Cites & Insights: Crawford at Large is copyright © 2006 by Walt Crawford: Some rights reserved.

All original material in this work is licensed under the Creative Commons Attribution-NonCommercial License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/1.0 or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.

URL: citesandinsights.info/civ6i3.pdf