[okfn-discuss] Removing the nc: why license restrictions on commercial use are problematic and (frequently) unnecessary

[Rufus Pollock]

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