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

[Tom Chance]

Ahoy,

Chopping and changing to tackle themes...

On Friday 28 April 2006 11:35, Rufus Pollock wrote:
> Tom Chance wrote:
> > Well it locks Free or un-permitted usage into those contexts. But if you
> > had a clear and much tighter definition of commercial and a transparent
> > way of getting permission, by means of something like Magnatune's license
> > clearing web site, then you're in a difficult position. It becomes easy
> > to buy
>
> b) we are not just talking about music (the original example was of
> video being produced documenting deptford's regeneration). In music a
> universal, cheap and simple clearing mechanism still seems pretty
> distant and in other areas I don't see any such projects being even
> considered

At our meetup in the Limehouse recently somebody, possibly a combination of 
John from Magnatune and Rob Myers, told me that a collection of projects 
along those lines were being considered as part of a revision of the NC 
clause? To use the NC clause you'd need to nominate a clearing organisation 
to handle commercial uses for you. Another proposal was just to require NC 
users to provide, up front, a web page with details for commercial users. It 
would be really interesting if someone ran with the clearance idea though. 
Does anyone have any info on the legal side, e.g. saying "you need to seek 
permission for these specific commercial uses, which will be automated by 
this system, but not for anything else"?


> a) the discouragement of commercial users from participating in the
> community. For example in a community with a default NC restriction it
> seems hard to see how a 'commercial' company would be willing to allow
> its staff to work and contribute to that community. This could be a big
> loss (who once imagined the contribution that IBM/Oracle/HP etc would
> make to F/OSS software).

That's an interesting point, though could you imagine a world ten years down 
the line where it is in the commercial interest of, say, a record label or a 
graphic design shop to share some of their assets with the community and 
competition?


> c) What particularly concerns me -- and animated my original post -- was
> the issue of NC being used as a default just because people want to
> exclude certain types of endeavour not the situation where it is being
> used as income-generating strategy. I was also pointing out that, in
> many cases, such restrictions, while having serious impacts on the
> 'openness' of the work, didn't actually generate much extra benefit for
> those imposing them.

That's definitely a big concern, and I have similar worried with the ND 
clause. I think part of it is that the clauses try to crystallise a complex 
debate, but in a slightly kludgy way. They intersect with lots of cultural 
issues and don't necessarily provide a suitable match to people's very varied 
intuitions. So people use the NC and ND clauses for all kinds of reasons that 
don't match up with the CC propaganda.

Definitely a big drawback of the CC choice agenda, though I'm still sceptical 
about the scope and appropriateness of the OKF open content definition for 
similar reasons. Your definition is great, but does it match up to the issues 
facing most or even many creators? Maybe we shouldn't care...


> I want to make clear that I quite appreciate this point (it was one that
> was raised at the FC-UK meetup and on the fc-uk-discuss mailing list). I
> also think it illustrates the different uses of the word 'freedom'. On
> the one hand you have, as used here, 'freedom' for the artist/programmer
> etc in terms of having enough money. Alternatively as used in 'free
> software' -- and possibly one sense of 'free culture' -- one means a
> situation where there is liberty to use the work without seeking
> permissions (at least as long as they abide by certain rules such as
> that requiring you to share back). In this second case it is
> hoped/assumed that others will share like you did increasing /your/
> freedom to access and reuse other's work but the freedom that /you/
> primarily increase by making /your/ work open/free is the freedom of
> /others/.

That's definitely an enormous problem. We saw it on the FC-UK discussion list 
with Crosbie Fitch's excellent free culture definition, which I didn't like 
because it was essentially a libertarian manifesto for freedom from coercion, 
whereas I'm much more interested in real cultural freedoms. There's an 
interesting, if at times absurd, essay in the NODE.London reader by Toni Prug 
arguing that both FC and FS are totally flawed because they ignore the 
material conditions and relations set-up by IPRs and and required for 
creativity. Some may say that copyright frees artists from patronage, 
democratising creativity by giving far more people the financial backing 
without having to go cap in hand to the rich. Prug wants us to push for 
global economic equality before we start prognosticating about cultural 
freedom.


> > And really, what benefits of non-commercial exchange are we talking about
> > here? Talk to some small/new record labels and their artists. They know
> > perfectly well that people copy their CDs and that helps them grow their
> > audience, but at the end of the day they make a tiny amount of money from
> > the CDs, and generally lose money touring, so they want to ensure they
> > can squeeze every penny out of their recordings. Encouraging free
> > commercial use
>
> This is really interesting piece of information Tom. Do you know where I
> could find more on what the revenues of small labels and their artists
> are? I had assumed that, proportionally, these artists made more money
> from gigs than they did from selling their music but you are indicating
> the opposite.

I always thought that too, until I started organising gigs and talking to 
musicians, then I lost faith :o) Most band nights run at a loss - the 
promoters and the bands do it usually for the love of music and/or in the 
hope of getting a few more steps up the ladder. Venues will often refuse to 
pay artists, or get pissy about the fees after the performance, especially if 
the bar doesn't rake in enough cash. You need to play in really decent venues 
to start making any kind of money, and you need a big profile to get much 
extra from merchandise.

As for CDs, you have to appreciate that it can cost thousands to get them 
recorded and mastered reasonably well, so it's a big financial risk for bands 
without lots of money coming in.

It would be really good if we could organise a conference with small labels. 
Prodromos was really interested in doing this at LSE late this year. We 
should definitely push for that, it would be a great opportunity to talk some 
of these issues through.


> With a 'copyrighted culture' you've got an overly restrictive (and
> overly extended) default that creates huge transactional burdens and
> complexity. So with restrictions on commercial use: we create a bunch of
> restrictions -- less burdnesome than with traditional copyright to be
> sure -- but burdensome nevertheless that in /many cases/ are just acting
> as obstacles while doing little for the producers of the work. Sure,
> just like full copyright, nc provisisons give the creator more control
> over the use of their work but it's a control with large attendant costs
> for the community and often few benefits for the creator.

Amen. However, this is quite a hard message to sell to artists who don't 
consider themselves to be remixers. Until they come up against a copyright 
holder or free culture advocates it won't seem a big deal. Playing devil's 
advocate: So what if the community doesn't benefit, there's a chance I might 
benefit from my exclusive control somewhere down the line. With software, 
programmers can quickly grasp the advantage of everyone sharing code openly. 
Why should a poet, band, painter or journalist jump on the bandwagon?

Regards,
Tom