[okfn-discuss] Removing the nc: why license restrictions on commercial use are problematic and (frequently) unnecessary
Rufus Pollock
rufus.pollock at okfn.org
Wed Apr 26 17:55:30 UTC 2006
Below are some thoughts, orginally posted on the blog, about why
restrictions on commercial use such as those found in the creative
common nc type licenses are problematic and, at least in some
circumstance, are also unnecessary.
Regards,
Rufus
I was very interested to hear about the Deptford.tv project from Adnan
Hadzi when he spoke about it at the Free Culture UK meetup. However
given Deptford.tv's focus on remix and reuse I was surprised to see that
they use a by-nc-sa (Attribution-NonCommercial-ShareAlike) licence which
explicitly prohibits commercial usage (and therefore incompatible with
the GPL-type by-sa). I asked Adnan why this decision had been taken and
he explained that: 'the important reason was that many film-makers
refused to allow their work being possibly used for profit'.
While appreciating this concern, for reasons I elaborate below, I think
the adoption of the 'non-commercial' restriction is a big mistake.
Removing the restriction would deliver significant gains in terms of
greater freedom for reuse, demonstrating a commitment to full
‘openness’, and prevention fragmentation of the ‘commons’. At the same
time the downside of doing this would be minimal.
First, a by-sa license is clearly ‘freer’ than a by-sa-nc in that it
places fewer restrictions on the use of the work. In general this is a
good thing since it means fewer occassions on which people have to /ask
permission/.
The Open Knowledge Definition (http://www.okfn.org/okd) following the
approach of the F/OSS community prohibits discrimination against fields
of endeavour (art 8) including restrictions on commercial use. Just as
for open source I think it is important to have commercial users join
the community. Furthermore this kind of restriction not only adds
further complexity (what exactly counts as 'commercial' use?) but also
is the basis for the introduction of a whole panopoly of further cases
of 'special treatment' (for developing nations, against military use,
etc etc) leading rapidly to a fragmenting of the 'commons'. I'd
therefore go as far as to say that a license which incorporates 'nc'
type provisions should not be described as 'open' and should be avoided
wherever possible.
Second is all commercial usage bad? I know someone who made a
documentary about Chavez and distributes it for free. At the same time
he has received payments when it has aired by commercial tv stations
(they often pay even when they don’t need to). This would make his work
‘commercial’ but it seems a far cry from, say, use in a coca-cola
advert. Do you really want to prevent that kind of usage? If you do
you’ve just cut out most of the main avenues for ’serious’ reuse of your
work — ultimately most documentary makers would like to see their stuff
get out to as wide an audience as possible and that means broadcast on a
commercial network.
Third for the types commercial usage that I imagine you would most
object to (e.g. adverts) the share-alike clause should be a sufficient
obstacle — the makers of a major ‘brand’ advert probably do not want to
have ‘reshare’ their work. They would need to come and relicense from
you and at that point you are in the same position as with an nc license.
Further Reading
===============
I am by no means the first to consider this issue. See e.g. Erik
Moller's essay:
http://intelligentdesigns.net/Licenses/NC
And Lessig's response:
http://lists.ibiblio.org/pipermail/cc-lessigletter/2005/000008.html
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