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The case for Free use: reasons not to use a Creative Commons -NC license
When the Creative Commons project published its first licenses in December 2002, it finally brought a sense of unity to the free culture movement. Instead of having to choose from many scattered licenses, authors 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 culture 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 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.
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 and beneficial 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 unethical exploitation equally well.
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.
- 1 The case for Free use: reasons not to use a Creative Commons -NC license
- 1.1 Incompatibility
- 1.2 Basic and beneficial uses
- 1.3 Existing copyright terms
- 1.4 Profit
- 1.5 Conclusions
- 1.6 Counter-arguments and their rebuttals
- 1.7 Further reading
- 1.8 Examples of confusion arising from NC provision
Millions of people use free content every day. Wikipedia is freely licensed and is among the 10 most visited websites on the planet. Today, many of the most popular search engines directly use content from Wikipedia in their integrated results. This extended use of Wikipedia works because the license explicitly allows and encourages commercial use.
Now, if you choose an -NC license for your work, it will be incompatible with Wikipedia, other Wikimedia projects, and many other free content projects, large and small.
Wikipedia's licensing (CC-BY-SA and GNU Free Documentation License) uses 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 add an -NC restriction to derivatives and so you cannot use any -NC material in derivatives of copyleft work because you can no longer apply the commercially-allowed “share-alike” license to the entire work.
In Creative Commons own compatibility chart they indicate that although it there may be exceptions that make it technically possible to create derivative work licensed CC-BY or CC-BY-SA if it has any CC-NC content, “CC does not recommend using these combinations”. Maintaining boundaries between parts of a work where some is -NC and some is not 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 licenses will be violated.
Many free content communities reject -NC licenses simply for philosophical reasons like the ones outlined in this article. For example, the Wikimedia Commons, a media repository operated by Wikipedia's Wikimedia Foundation which contains more than 41,000,000 files, does not allow uploads under restrictive licenses such as the -NC variants.
Allowing commercial use is also fundamental in the free software community. Both the Open Source Definition and the Free Software Definition explicitly state that sale and other commercial uses must be allowed for a license to be considered free. The allowance of commercial use and the avoidance of the compatibility problems that come with non-commercial terms are a big part of the widespread adoption of free software.
In the scientific community, free licensing is growing as well. The Public Library of Science recognizes the Open Access Definition for scientific content which permits commercial use and so have other large open access publishers such as BioMed Central. Scientific knowledge, they reason, ought to be as freely available as possible.
Communities like Wikimedia, Debian, or the scientific Open Access movement do not exist for their own gain – they provide free knowledge and free software to the world. 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. This does not merely apply to inherently collaborative works; almost any conceivable work in demand can be usefully transformed or incorporated into a collaborative context.
Basic and beneficial uses
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 attempt making some extra money. Other sites use small-scale subscription models to unlock additional features and content or disable advertising. Ask yourself if you really want to stop all these individuals from using your work.
Compilations which are sold are another example of commercial use. For example, if a 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. Even under liberal interpretations, any use in a corporate context would almost certainly be forbidden, such as the inclusion of the file on a CD bundled with a computer magazine.
Worse still are the effects that -NC licenses can have on people in the developing world, where entrepreneurship represents an opportunity to overcome poverty and the digital divide. People with basic access to freely licensed materials can redistribute them at a small profit using more traditional means such as photocopying or CD burning. In the absence of large scale government programs to broaden Internet access or distribute free content, market forces can play a clearly beneficial role in spreading free knowledge and free culture. Given cultural, language and access barriers, the common argument of -NC proponents that permitting commercial use on request is sufficient to allow for desirable uses, is at odds with reality.
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 covered until 2100 if the author dies in 2030 (the duration of copyright in the United States and Europe is generally “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 such reductions 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 protect 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 were under normal copyright. What -NC can regulate are distribution and modification of the work itself beyond what the law allows.
However, keep in mind that in this age, large scale distribution is no longer the exclusive domain of 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; this may be the author's intent.
There is, however, 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. The company does not, however, need to share the income from the “added value”. Seen like this, the “risk” of exploitation turns into a potentially powerful benefit depending on the value added to the content.
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 were 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. The monetary donation, while not required, does help to maintain goodwill with the community. 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 in two ways; new offline reader software was created and 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 chooses to pay for one of Wikimedia's developers, and has also been one of the sponsors of Wikimedia's 2005 conference, Wikimania. None of this was required by the license.
Commercial use can be highly mutually beneficial where it does occur. The Share-Alike principle, while not applicable to monetary benefits, does protect the content from abusive exploitation without 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.
One final factor to keep in mind, especially for wide-spread small scale exploitation, is the enforceability of the license. For example, Wikipedia's Creative Commons BY-SA license requires that content users link back to the relevant Wikipedia articles, and point out that the document is freely licensed. As is evident from a brief look at Wikipedia's own list of mirrors and forks by compliance, many content mirrors completely ignore the CC-BY-SA. Some even systematically remove all evidence that the content is from Wikipedia. Such behavior, while illegal, is difficult to punish, as mirrors reside in many different countries. Many have been quickly set up, without anyone in charge of operations.
Even though Wikipedia is a large community with a reasonably well-funded parent organization, it is clear that it is hard to enforce even very basic licensing requirements on free content. Ask yourself whether you are truly willing and able to enforce violations of an -NC license. Otherwise, the only people you punish with the restriction are those who are careful to respect your wishes -- people who are likely to be amenable to friendly cooperation anyway.
Still, you might feel that your work should not be used to legally set up mirrors that effectively spam search engines. There are two responses to this; one social, and the other technological. The social response is that no matter what license, if any, you choose for your work, you can still make your feelings and expectations about the use of your work clear without making them legally binding, and can choose to associate with people who respect your values.
The technological response is that all forms of spam represent weaknesses in information and communication infrastructure. Most of today's search engines still rely on a relatively dumb “spider everything” approach. Under this model, free content will always be used as fodder to get profitable rankings. It seems unwise to make a decision about licensing based on flaws of current search engine technology.1
1 Most simply, Google and its competitors could make an effort to better aggregate duplicate search results under the main site result. Combining search and social networking to take into account user perception and creator reputation seems like a logical next step.
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 effectively ends any large scale commercial publishing from pay-for-access type businesses. If you want to obtain additional protection 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. Unfortunately, these institutions are often the most likely to choose -NC licenses.
As we have seen, special permission (“You can use my work in this context, but in no other”) is frequently insufficient. It also defeats the point of free content licenses: reducing friction by making it possible, for humans and machines, to instantly find content that is usable in a desired context.
However, you might still argue that as an author, you could simply wait until anyone actually expresses interest in using your work under a more liberal license than the -NC variant you provide it under. Most use scenarios, however, will not be of a kind where an alternative to using your content is unthinkable. Human beings, especially in volunteer online communities, tend to take the path of least resistance and least offense.
You might feel that a certain amount of friction can be helpful, that you want to track usage of your work, and enter interactions with those who wish to go beyond what the license allows. But to achieve this, you can simply state: “You are free to use this work in any way you want to, as long as you attribute me as the author. Depending on the scope of the use, it would be nice if you could also tell me about it.”
Using a suggestion like this, you avoid friction, while still defining your expectations for those who want to be on friendly terms with you. In all aspects of life, we have our own standards of conduct, and we avoid people whose standards are incompatible with ours. Choosing permissive licenses or the public domain is an expression of the power of choice in association. Taking a lesson from Wikipedia, it's a simple statement that most human beings are essentially trying to do the right thing. Working together, we can try to educate or isolate those who are not, without the need for lawyers to get involved. We can develop and refine mechanisms to track usage, such as trackback in blogs, and build large but entirely voluntary associations of people who share a moral obligation to try to give back when they take.
Prohibiting commercial use except by special permission, on the other hand, puts you on the fringes of the free content movement, where the beer is free, but the philosophy is shallow. You lose much of the potential for your work to be improved, combined, aggregated and shared by those who believe in unrestricted freedom of use. You exchange the opportunity to be part of a dramatic shift in the ideology of ideas for a vague sense of security. At the same time, you give up much of the opportunity to make money the old-fashioned way by making the content in question perpetually available for free.
Recognizable and genuine free content communities can only evolve around the principle of true freedom. You have the chance to send a clear message whenever you license your own works. You have the chance to be heard, amplified by the voices of free content supporters around the planet.
If you must use an -NC license for one reason or another, please do add an additional notice specifying the duration of the copyright you desire for your work. Otherwise, traditional copyright law will apply, and commercial use will be forbidden long beyond your death.
For content users
If you see work online which is licensed under an -NC license, please kindly thank the author 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).
Strategically, it also makes sense to systematically seek out individuals and entities which provide large bodies of work under -NC terms, and to lobby them to change these terms. At the very least, this will raise awareness of the issues with -NC.
Do not make a derivative work of an -NC work. Even if you don't need to use the product for commercial use, you limit the work because it can never be included in a BY-SA work.
For Creative Commons
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. The fact that Creative Commons openly advertises the -NC option in its propaganda is not helpful. At the very least, the license selection screen should include a brief summary like the following:
- Note that forbidding commercial use will prevent your work from being used by any free content community that makes its entire body of work available under more permissive terms. This includes large knowledge bases such as Wikipedia, some open source software distributions, and also some media repositories. It will also prevent all primarily commercial uses of your work, large and small, unless you explicitly approve them. The “Share-Alike” licenses reduce the risk of exploitation by requiring that any derivative work is made available under the same terms, while drastically reducing incompatibility and not forbidding all commercial uses.
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.
EDIT: This has been done, to some extent.
Counter-arguments and their rebuttals
In private discussions with Lawrence Lessig, as well as in his public communications and speeches such as the one he gave at the 23rd Chaos Communication Congress, he has responded at some length to the points raised in this essay and others. Other explicit proponents of -NC licensing (of which there are few) hold similar views. The arguments can be summarized as follows:
Protecting the commons
“-NC licensing is to some works (music, photos) as the copyleft principle is to others: both principles protect the commons.” The core of this argument is that copyleft alone is not sufficient to protect musicians and photographers from commercial exploitation. There are too many scenarios, the argument continues, where a work can be taken into a context such as a compilation or an article, for commercial gain, and the copyleft principle does not “kick in” because the newly created work is not a derivative but rather an aggregate.
- It is true that some works are more likely to be directly altered and improved than others. However, copyleft was only ever meant to apply to such improvements. The philosophy of copyleft explicitly allows and encourages commercial use of the work beyond that, and as has been demonstrated above, there are many beneficial commercial use scenarios that have resulted from this. -NC licensing is therefore not a legitimate philosophical analogy to copyleft. Where copyleft is aimed at protecting and enlarging the commons, -NC licensing is aimed at protecting and enlarging the wealth of copyright holders. It represents an enclosure (utilizing the traditional monopoly rights granted by copyright law), rather than a commons. However, with the 3.0 BY-SA license, the issue of collections is addressed, and collections are explicitly required to attribute the work and link to its license.
- Moreover, the argument sets up a false dichotomy. Even if one believes that some works need additional protection beyond copyleft, it does not follow that -NC licensing is the solution. It is equally imaginable to extend the principle of copyleft beyond the distribution of direct derivatives, for example. Such discussions have already taken place in the free software community, where the proliferation of web services poses a very real challenge to copyleft: Under existing copyleft licenses, a company that makes improvements to a web server application such as a discussion forum does not need to share these improvements if it merely uses the software to provide a service, but does not distribute it. While it is unlikely that the copyleft principle will be significantly altered to address this perceived problem, nobody would propose to lock out commercial uses to do so.
- Interestingly, in his 23C3 speech, Lessig listed “wiki” as a type of work where copyleft might be a sufficient protection, and distinguished it from other works such as pictures and music. However, “wiki” is not a type of work; it is a methodology of open collaboration that can be applied to any work, be it text, photo, video, sound, or images. Indeed, wiki software such as MediaWiki not only supports versioning for uploaded files, but provides an open API for editing any file with an external application. And such collaboration is happening. One only needs to look at, for instance, Wikipedia's “Featured Picture Candidates”, a kind of open community workshop for nominating, discussing and improving Wikipedia's greatest illustrations and photos. Here, pictures often undergo extensive community revision before they are finally listed among Wikipedia's finest. For drawings in particular, translations of labels are also very common.
- Projects like MetaVid show that wiki-like collaboration and annotation is even possible around video files, opening some exciting possibilities of collaborative filmmaking. If, as Lessig argues, copyleft is right for “wiki”, then copyleft is right for any work for which beneficial revisions or transformations are imaginable.
Preventing a schism
“The arguments against -NC licensing cause an unnecessary schism in the free culture movement.”
- This observation does not support the notion that the -NC restriction is sustained by a community with an explicitly shared value system. Where the -NC restriction is used, it is typically in a value-neutral context where individual copyright holders are given a wide set of licensing choices (such as the Flickr photo-sharing community). In contrast, very few communities and groups have made the -NC restriction an explicit conditio sine qua non. The observable distinct ideologies appear to be therefore more likely one of freedom of culture and freedom of authors, where the former movement seeks to build a commons with guaranteed freedoms (almost always including commercial use), and the latter seeks to give authors a wide array of choices for licensing.
- If an additional schism arises, it is not because of the advocacy against -NC licensing, since the value system which rejects the restriction clearly predates the Creative Commons movement. Rather, it would be advocacy in favor of forming an explicit community of -NC users which would create a third way, a new ideology that does not presently exist in an identifiable form. In contrast, the pragmatic movement to give authors new licensing choices and to raise awareness thereof has always been and will always be distinct from the identifiable free culture movement which rejects specific restrictions. Advocacy against -NC licensing merely emphasizes this distinction.
- A closely related argument states that the advocacy against -NC licensing is essentially an attempt by one group of software geeks to impose their view on freedom on very different cultural communities. It is manifestly untrue that this definition of free culture is only common among software developers — very large free culture communities like Wikimedia and the Open Access movement are clearly distinct from the free software movement — and second, as noted above, there is no observable alternative ideology beyond one of “pragmatic choice.” This attitude of “author's choice” exists in the software community as well: authors of freeware and shareware do not use free licensing, and often restrict use in other ways. They are united only by minimal pragmatic principles, and their ideologies, insofar as they ever have existed, are eclipsed by the free software movement.
Unite behind the things that really matter
“We need to focus on what is really important.” According to this argument, we should postpone any discussion about -NC licensing and unite behind issues we can agree on, such as reducing copyright terms, fighting against Digital Restrictions Management (DRM), or liberating orphaned works.
- This is again a false dilemma. The process of defining an ideology of free culture does not harm the process of pursuing campaigns towards specific ends. An ideology is meant to build a sustained commitment towards a particular set of values; a campaign seeks to achieve a well-defined goal. It is impossible to reach an objective judgment about which of these activities is more important, but they are not in any way mutually exclusive. Social networking makes it possible for individuals to organize around particular campaigns, regardless of their ideologies.
- There is, however, one important truth connected to this argument: hostility hurts us all. When ideology becomes dogma, and when movements become factions, important (essential!) common causes are all too easily set aside. Therefore, the discussion about issues such as this must always be pursued in an atmosphere of mutual respect and understanding. Those who poison this atmosphere with anger and irrational animosity must not be permitted to lead, regardless of how virtuous they may appear.
- Benjamin Mako Hill: Towards a Standard of Freedom: Creative Commons and the Free Software Movement. Criticizes the Creative Commons project for failing to “draw a line in the sand” when it comes to defining free licenses. Compare the version published on Advogato with attached discussion forum.
- Erik Möller: Creative Commons -NC Considered Harmful. An older version of this article with an attached discussion forum.
- Why the CBC banned Creative Commons music from its shows. The Canadian Broadcasting Company's difficulties with NC-licensed content.
- Paul Klimpel: Free Knowledge based on Creative Commons Licenses
- Aaron Wolf: Discussion of NC incompatibility with Wikimedia BY-SA resources in creating a non-commercial video for song about brain anatomy
Examples of confusion arising from NC provision