Creative Commons has released the first draft of the 4.0 version of its licences for public comment, and while there is much to discuss about it, I will be doing it in a later post. The following words are prompted by something that I have noticed arising from the public discussion taking place in one of the mailing lists dedicated to the topic, and it is something also that continually bothers me in most public discussion of open licensing in general. It seems to me that a significant number of those who participate in these discussions are opposed to the very existence of NonCommercial clauses in Creative Commons licences, and another good number dislike it, but endure its existence. All throughout long threads dedicated to the NC element, the attacks on NonCommercial clauses are relentless.
The cause for this vocal opposition stems from a combination of factors. Firstly, a lot of participants in those discussions come from the Free Software movement, where NC clauses are considered anathema to the development environment; anything that is considered NonFree is incompatible with the GPL, which is the standard for Free Software. Secondly, in 2006 Benjamin Mako Hill and Erik Möller created the influential Definition of Free Cultural Works (DFCW), which states clearly that NC clauses are not Free (in the freedom sense, not the free beer one). The DFCW was adopted by the Wikimedia Foundation, and therefore the dislike of NC within the open community was cemented.
Given the volume of opposition to NC, I would like to make a small defence of those clauses. I am not interested in attacking those who prefer to use Free licences only, I agree with most of the arguments in favour of free works, and I have nothing against that position. I do however disagree strongly with the utter demonisation of NC. I have to admit that I have always used NC licences, so I can talk from experience.
The first thing to note is the continuing popularity of NC clauses. If you were to read any random discussion on CC-Licenses or any similar list, you would assume that there is only a small minority of users who prefer NC licences, but in most CC licence metrics and statistics that I have read over the years, NC elements continue to be very popular by any measure. Historically, it seems like the NC clause is present in around 60% of works licensed with CC (if not more).
- Data from 100 million Flickr images (2009).
Why the popularity? I have been presenting about Creative Commons since 2004 to all sorts of audiences around the world. When preaching to the converted (free software advocates, developers, and CC communities), it is clear that NC is not favoured. However, when presenting to the general public, most people dig the NC clause. I have been pleasantly surprised by the willingness of people to share their work, but they are not happy at the prospect of some nameless corporation coming to take their work and profit from it. It is very human to rebel against the prospect of future unfairness, and this seems to drive the popularity of NC clauses. In my experience, it is easier to sell CC to wider audiences with the NC clause.
My personal experience with NC clauses has been very positive. Since 2007, all SCRIPTed articles have been using BY-NC-ND Scotland licence, and in 14 issues since only one person has asked to change the licence to remove the NC element. This blog has always been published with an NC licence, and while it is not intended to gain any money, it has allowed me to get some profits here and there. For example, all the blog’s content is offered through a commercial syndication service that sells content to Amazon, Thompson, Lexis and other aggregators, which gives me about $50 USD per year. I won’t make a living from this, but it is nice to be able to afford a good bottle of whiskey from time to time from money obtained through these pages. Similarly, I just sold an article to a large Canadian textbook publisher for a small fee. Were I not using an NC licence, it is possible that I would not have been able to get money in both instances. To me being able to get that money from time to time is more of a psychological incentive to continue writing.
More importantly, the NC element allowed me to sell the idea of releasing a book under Creative Commons to a UK academic publisher, who had never done it before. In the end they were happy to maintain control of all commercial uses, and to allow NonCommercial uses of the work. They were worried that if they did not have the NC clause, a competitor could simply reprint the book in its entirety and slap a ShareAlike licence to it.
Here is a list of some of the most common arguments that I have read throughout the years against NC, with my comments:
- NC should be destroyed and cast into the fiery chasm from whence it came. Thankfully this is a minority opinion that deserves little comment, it is given by the likes of those who believe that everyone should be forced to install Linux tomorrow.
- NC elements pollute the commons because they create incompatible works that cannot be mixed. This seems to be the strongest argument against NC, and it would be fair if one assumes that the objective is to create a large pool of works where everything should be remixed. I do not believe this to be the case, as cultural works are very different to software. In my opinion, it is more important to enable sharing, and compatibility is a desired secondary goal.
- NC clauses are complicated, and therefore difficult to enforce. Funnily enough, in most cases where CC has been enforced in court, the NC element was present, and the courts had no problem applying the NC clause (examples here and here).
- Creative Commons should strive to diminish its importance by renaming it, offering fewer options, or even demoting it in the licence chooser. This is an interesting idea, but again assumes that it is wrong to want to use an NC licence. I do no think this to be the case.
- It is unfair for you to profit from your work, and not allow others to do the same. I have seen variations of this from time to time, I have no real response to it because the thought behind it seems to be alien to me. I find it fair that I should profit from my work.
- People who use NC do not know any better and should be educated into the right way of doing things. This a surprisingly popular view, yet I find it highly patronising and insulting to say the least. There is a non-negligible number of people who are quite aware of the reason why they use NC.
- People who use NC are not really into Free Culture. Ah, the No True Scotsman fallacy!
- People who use NC are evil, bad, or in the pocket of Apple and/0r Microsoft. Have you taken your frog pills today?
In the end, the best argument that I have in favour of the existence of NC clauses is freedom itself. It seems fundamentally wrong to propose freedom as the highest principle in the open licensing ecology, only to begrudge those who choose to exercise their freedom in ways that those who have defined it narrowly disapprove of. Freedom comes from recognising that there are various reasons why people make licensing decisions, and that those may be different from your own.
But do not take my word about all of this. Will you consider the advice of one Richard M. Stallman? Surprisingly (at least for me), he has agreed that non-free elements are not so problematic in non-technical fields. In an email exchange he explains:
“I think that is the right definition of “free”, but I don’t think that non-functional works must be free. It is enough for them to be sharable. It is nice if other works are free, but not ethically imperative in my view.”
He then explains that art and software are different:
“If you use something to do jobs in your life, you must be free to change it today, and then distribute your changed version today in case others need what you need. Art contributes something different to society. You appreciate it. Modifying art can be a further contribution to art, but it is not crucial to be able to do that today. If you had to wait [...] for the copyright to expire, that would be ok.”