A recent blog post by the Students for Free Culture has been making the rounds in social media in the last few days. The article calls for an end to Creative Commons non-free licences, namely those with non-commercial (NC) and non-derivative (ND) elements. The blog is based on the dislike that many people in the free and open community have for what are considered non-free licences in accordance to the definition of Free Cultural Works. I have written several times in defence of the CC NC element before, so if you are unfamiliar with some of the arguments, you can read here and here.

I have no arguments against the use of those CC licences considered free by the Free Culture movement, namely Attribution (CC-BY) and Attribution-ShareAlike (CC-BY-SA). I tend to agree that these licences create fewer problems for downstream re-use, and in general they provide a healthier remix content ecology. What I strongly object to is the sheer arrogance of those who oppose NC and ND clauses, which prompts the writing of these lines. It seems to me to be a complete contradiction to elevate freedom as the highest value, then define said freedom in a very specific manner, and finally decry those who choose to exercise their freedom in ways that fall outside of the narrow definition.

After reading the Free Culture article and other similar posts, I have come to the conclusion that the intransigence towards NC and ND stems from both a mistaken view of how people make licensing decisions, but that it also responds to an almost fundamentalist ideal of openness. To these advocates, only those in the narrow path are worthy of being called Free. Moreover, it seems like the Free Culture crowd is informed by a very narrow US-centric idea of open licences. When talking about the reasons why NC and ND are bad, the author states that:

“Neither [NC and ND] provide better protection against misappropriation than free culture licenses. The ND clause survives on the idea that rightsholders would not otherwise be able protect their reputation or preserve the integrity of their work, but all these fears about allowing derivatives are either permitted by fair use anyway or already protected by free licenses.”

This paragraph is typical of many of the arguments against NC and ND in the fact that they tend to be written with US law in mind, and with a specific cultural background. Fair use does not exist outside of the US, so this argument only works there. The rest of us have to make do with a list of exceptions and limitations that do not provide the protection claimed. Moral rights are stronger in many other jurisdictions, but that way madness lies. If we stop relying on licensing and fall back on moral right defaults, one could argue that no remixing and no derivative and transformative re-use is even possible without consent from the author. This argument actually works against Free Culture outside of common law traditions. A similar narrow cultural point is made by the article when it states that:

“People have been vocal about this issue for a long time, and awareness of the problematic nature of ND and NC has been spreading, especially in the areas of Open Educational Resources (such as OpenCourseWare) and Open Access to research. With the percentage of CC-licensed works that permit remixing and commercial use having doubled since Creative Commons’ first year, it’s clear that there is a growing recognition that the non-free license clauses are not actually necessary, or even good.”

As far as I can tell from metrics, while there has been some increase in the amount of works under free licences, the popularity of NC and ND clauses has remained largely intact in recent years, with adoption rates at around 60%. There is a reason for such popularity that falls outside of what is even considered by the article. The reason is that average users “get” NC. The argument that I have seen repeated time and time again, presentation after presentation, is that people do not want a middleman to take their work, repackage it, and sell it. This is a very basic gut-instinct that people outside of the openness licensing circles tend to have. The reason for it is that creators do not consider downstream re-use as their priority for sharing, this is the concern of us licence geeks. When you explain CC to a commercial book publisher, their only question is whether they can stop their competitors from copying the book and re-publishing it. Furthermore, NC adoption is very high outside of the US. In Latin America, most institutional use that I am aware of uses NC because the prohibition of commercial re-use is a way to both share the work to a wider audience, and at the same time maintain control over reuses.

The basic difference between those who oppose NC and those who use it is precisely the weight given to remixing. In the ideal Free world, everything can be remixed infinitely, while those of us who use NC licences favour use and access. I am not overly concerned about the fact that a hypothetical person might not be able to remix my blog posts commercially. Does that make me a bad person? I prefer that they are able to read it, and this being online with free access, derivatives are at the bottom of my licensing priorities. If anyone wishes to re-use the work commercially, they can talk to me.

The article has a very telling paragraph in which the reasons against NC are set out:

“The second idea is the misconception that NC is anti-property or anti-privatization. This comes from the name NonCommercial which implies a Good Thing (non-profit), but it’s function is counter-intuitive and completely antithetical to free culture (it retains a commercial monopoly on the work). That is what it comes down to. The NC clause is actually the closest to traditional “all rights reserved” copyright because it treats creative and intellectual expressions as private property. Maintaining commercial monopolies on cultural works only enables middlemen to continue enforcing outdated business models and the restrictions they depend on. We can only evolve beyond that if we abandon commercial monopolies, eliminating the possibility of middlemen amassing control over vast pools of our culture.”

Firstly, it is clear that this is a strong ideological statement. It is possible to be in favour of openness and still agree that authors should retain the right to maintain a commercial monopoly over their own creations if they desire to do so. It is also false that somehow NC clauses help to maintain the status quo by enabling middlemen. The argument rests on the unfounded assertion that any NC use enables private property, which in turn supports outdated commercial models. As Heather Morrison eloquently wrote in the cc-licences mailing list:

“NC and ND are not necessarily for middlemen. These can also protect original creators from exploitation by middlemen -one of the reasons I use NC.”

In the end, I am calling for respect of people’s licensing choices. Maybe there will be a future when everyone is convinced about the merits of Free Culture approved and certified content, and we will all be using it. On the meantime, licence choice is very nuanced, and users all over the world have unique reasons why they want to share their works. The important point is that those reasons need not align with your own narrow idea of what licensing choices are optimal. Compatibility and re-usability are good principles, but they are not the only ones. A vibrant licensing suite that caters to diverse needs can only encourage more works being shared.

These are minor disagreements though, perhaps we can all agree that Free Beer is a good thing.



Dorothea Salo · September 4, 2012 at 11:05 am

Fair-use-like legal doctrines most certainly do exist outside the US; examine Canadian and UK "fair dealing," for example. They are not identical to US fair use, but they're close enough that you might want to reconsider your "does not exist outside the US" statement.


    Andres · September 4, 2012 at 4:00 pm

    Thanks for the comment. Fair dealing is very different from fair use, which is why I made the comment. Fair use is an open-ended doctrine, while fair dealing is an exhaustive list of permitted dealings of the work. Some experts have been actually hoping to import the more open fair use, but so far it remains only in place in the US. See for example this discussion in Australia: http://www.alrc.gov.au/publications/copyright-and

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