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Creative Commons Noncommercial Licenses: Problems and Solutions

Erik Mller has written a profound analysis of the shortcomings of the Creative Commons Noncommercial (CC-NC) licenses.

He writes:

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.

(This, by the way, is similar to the Founder’s Copyright agreement also offered by Creative Commons). Furthermore, Moller believes the NC share alike provisions of CC harm smaller sites, not larger ones:

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.

Here are my thoughts:

This is a rather profound analysis of an issue which I have identified and written about in several places. (See for example here: Creative Commons Licenses: Doubts and Questions and Commercial Use Questions ). And believe it or not, I am in the middle of a THIRD piece on the same subject for Teleread (coming soon). The reason the issue bothers me so much is that I’m trying to develop a site to promote Creative Commons works and artists without being forced to go broke in the process.

Overall, I am in agreement with CC goals, and I think it has done a lot of good. There are cases where CC NC is the exact solution to the problem. For example, now I am trying to negotiate with a publisher to allow distribution of a noncommercial ebook version of an out-of-print novel through Project Gutenberg if it carries a CC/NC license. That is precisely a case where CC/NC works.

Remember, CC noncommercial licenses were originally developed in response to music sharing, so artists could allow fans to share mp3s. The Creative Commons people weren’t trying to solve the artist compensation issue; they were trying to solve the issue of p2p legal sharing. One effect of CC NC licenses is that it makes it hard for CC content distribution sites to succeed unless they find public funding or funding through a grant. It essentially means that sites that profit (even indirectly) from CC works must receive explicit permission to distribute a work before it can legally do so. In a word, that could be burdensome and a reason why just about everybody would claim their site to be noncommercial. Is creative commons fundamentally incompatible with advertising, membership and tipjars?

I foresee another form of the CC license which allows advertising. CC could offer two tiers of commercial use:

  1. selling the work in exchange for money
  2. deriving some indirect financial benefit through advertising/membership.

That makes CC less simple, less elegant, but more versatile. Personally, I would be overjoyed to let third party distributors put my creative content on an advertising-supported site.

In an age of independent distribution, what an artist needs most is not NC protection or even protection derivative works but Rights of Attribution. Just link to me dammit, so that fans can visit my website and buy my coffee mugs! Yes, this second tier (indirect financial benefit through advertising/membership) would allow cnn.com to repost my Vogon poetry for free, but at least they would be compelled to attribute it to me and include a link to my home page. Others may not agree with this preference, but for me, this is a fair deal.

Robert Nagle (aka idiotprogrammer) writes fiction under various pseudonyms. He does not have a beard. (originally appeared in Teleread).

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