[okfn-discuss] Fwd: [FC-discuss] Stop the inclusion of proprietary licenses in Creative Commons 4.0

Rufus Pollock rufus.pollock at okfn.org
Mon Aug 27 16:36:51 UTC 2012

Big +1 on this from me. This chimes with the comments I made re CC and
esp the non-open [1] (e.g. non-commercial or no-derivs) CC licenses in
this blog post of mine last year:


I've raised this in person with several members of CC board and the
current CEO. I emphasize this is currently my personal opinion and not
sure what the OKFN community as a whole feel about this :-)


[1]: http://opendefinition.org/)

On 27 August 2012 17:09, Danny Piccirillo
<danny.piccirillo at member.fsf.org> wrote:
> via:
> http://freeculture.org/blog/2012/08/27/stop-the-inclusion-of-proprietary-licenses-in-creative-commons-4-0/
> ---------- Forwarded message ----------
> From: Students for Free Culture <webleader+rss-bot at freeculture.org>
> Date: Mon, Aug 27, 2012 at 3:15 AM
> Subject: [FC-discuss] Stop the inclusion of proprietary licenses in Creative
> Commons 4.0
> To: discuss at freeculture.org
> Over the past several years, Creative Commons has increasingly
> recommended free culture licenses over non-free ones. Now that the
> drafting process for version 4.0 of their license set is in full gear,
> this is a “[a once-in-a-decade-or-more opportunity][1]” to deprecate the
> proprietary NonCommercial and NoDerivatives clauses. This is the best
> chance we have to dramatically shift the direction of Creative Commons
> to be fully aligned with the [definition of free cultural works][2] by
> preventing the inheritance of these proprietary clauses in CC 4.0′s
> final release.
> The concept of free culture has its roots in the history of free
> software (popularly marketed as "open source software"), and it’s an
> important philosophical underpinning to the CC license set. As with free
> software, the word "free" in free culture means free as in freedom, not
> as in price, but Creative Commons has not [set or adhered to any
> standard or promise of rights][3] or taken [any ethical position][4] in
> their support of a free culture. The definition of free cultural works
> describes the necessary freedoms to ensure that media monopolies cannot
> form to restrict the creative and expressive freedoms of others and
> outlines [which restrictions are permissible or not][5]. Although
> Creative Commons provides non-free licenses, the fact that they
> recognize the definition reveals a willingness and even desire to
> change.
> Creative Commons started off by focusing much more on flexibility for
> rightsholders, but since its early days, the organization has moved away
> from that position. Several projects and licenses have been retired such
> as the Sampling, Founders' Copyright, and Developing Nations License.
> It's obvious that something like Founders' Copyright which keeps "all
> rights reserved" for 14 years (before releasing into the public domain)
> is not promoting free culture. Giving rightsholders more options and
> easier ways to choose what rights they want to give others actually
> reinforces permission culture, creates a fragmented commons, and takes
> away freedom from all cultural participants.
> **What's wrong with NC and ND?**
> The two proprietary clauses remaining in the CC license set are
> [NonCommercial][6] (NC) and [NoDerivatives][7] (ND), and it is time
> Creative Commons stopped supporting them, too. Neither of them 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][8] are
> either permitted by fair use anyway or already protected by free
> licenses. The [NC clause is vague][9] and survives entirely on two even
> more misinformed ideas. First is rightsholders' fear of giving up their
> copy monopolies on commercial use, but what would be considered
> commercial use is necessarily ambiguous. Is distributing the file on a
> website which profits from ads a commercial use? [Where is the line
> drawn][10] between commercial and non-commercial use? In the end, it
> really isn't. It does not increase the potential profit from work and it
> does not provide any better protection than than Copyleft does (using
> the ShareAlike clause on its own, which is a free culture license).
> 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][11] 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.
> Most importantly, though, is that both clauses do not actually
> contribute to a shared commons. They oppose it. The fact that the ND
> clause [prevents cultural participants from building upon works][12]
> should be a clear reason to eliminate it from the Creative Commons
> license set. The ND clause is already the least popular, and
> discouraging remixing is obviously contrary to a free culture. The
> NonCommercial clause, on the other hand, is even more problematic
> because it is not so obvious in its proprietary nature. While it has
> always been a popular clause, it's use has been in slow and steady
> decline.
> Practically, the NC clause only functions to cause problems for
> collaborative and remixed projects. It prevents them from being able to
> fund themselves and locks them into a proprietary license forever. For
> example, if Wikipedia were under a NC license, it would be [impossible
> to sell printed or CD copies of Wikipedia][13] and reach communities
> without internet access because every single editor of Wikipedia would
> need to give permission for their work to be sold. The project would
> need to survive off of donations (which Wikipedia has proven possible),
> but this is much more difficult and completely unreasonable for almost
> all projects, especially for physical copies. Retaining support for NC
> and ND in CC 4.0 would give them much more weight, making it extremely
> difficult to retire them later, and continue to feed the fears that
> nurture a permission culture.****
> **Why does this need to happen now?**
> 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][14] (such as OpenCourseWare)
> and [Open Access to research][15]. With the percentage of CC-licensed
> works that permit remixing and commercial use having [doubled][16] 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.
> Both NC and ND are incompatible with free licenses and many, if not the
> vast majority, of NC and ND licensed works will not be relicensed after
> CC 4.0, so the longer it takes to phase out those clauses, the more
> works will be locked into a proprietary license. There will never be a
> better time than this. Creative Commons has been shifting away from non-
> free licenses for several years, but if it does not abandon them
> entirely it will fail as a commons and [divide our culture][17] into
> disconnected parts, each with its own distinct licence, rights and
> permissions granted by the copyright holders who 'own' the works.
> In December of 2006, Creative Commons implemented a subtle difference
> between the pages for free culture and non-free licenses: green and
> yellow background graphics (compare [Attribution-ShareAlike][18] to
> [Attribution-NonCommercial][19]). This was also when they began using
> license buttons that include license property icons, so that there would
> be an immediate visual cue as to the specific license being used before
> clicking through to the deed. In February of 2008, they began using a
> seal on free culture licenses that said "[Approved for Free Cultural
> Works][20]", which was another great step in the right direction. In
> July of this year, Creative Commons released a [completely redesigned
> license chooser][21] that explicitly says whether the configuration
> being used is free culture or not. This growing acknowledgement of free
> vs. non-free licenses was a crucial development, since being under a
> Creative Commons license is so often equated with being a free cultural
> work. Now, retiring the NC and ND clauses is a critical step in Creative
> Commons' progress towards taking a pro-freedom approach.
> The NC and ND clauses not only depend on, but also feed misguided
> notions about their purpose and function. With that knowledge, it would
> be a mistake not to retire them. Creative Commons should not depend on
> and nurture rightsholders' fears of misappropriation to entice them into
> choosing non-free CC licenses. Instead of wasting effort maintaining and
> explaining a wider set of conflicting licenses, Creative Commons as an
> organization should focus on providing better and more consistent
> support for the licenses that really make sense. We are in the perfect
> position to finally create a unified and undivided commons. Creative
> Commons is at a crossroads.This decisive moment will in all likelihood
> bind their direction either being stuck serving the fears that validate
> permission culture or creating a shared commons between all cultural
> participants.
> We don't want the next generation of the free culture movement to be
> saddled with the dichotomies of the past; we want our efforts to be
> spent fighting the next battles.****
> **What should we do? **
> There have been lots of discussions on the CC-license list about
> promoting free culture licenses and discouraging proprietary ones. A
> couple of proposals have been made to encourage the use of free licenses
> over the non-free ones.
> One is a rebranding of the non-free licenses. They could be
> differentiated in a much more significant way than it currently is, such
> as referring to NC and ND as the "Restricted Commons" or "Limited
> Commons" or some variant thereof. License buttons could also be color
> coded in the same way that license pages are (green for free culture
> licenses, yellow for proprietary ones). Another proposal is to rename
> NonCommercial to something more honest such as CommercialMonopoly.
> While these proposals and other ideas are certainly worth supporting, we
> should not lose sight on our ultimate goal: for Creative Commons to stop
> supporting non-free licenses. We should not feel like this is impossible
> to achieve at this point, as it will be much more difficult to do later.
> More people than ever are starting to advocate against proprietary CC
> licenses, and there is clear evidence and reasoning behind these
> arguments. We have the power to prevent the inclusion of non-free
> clauses in this upcoming version of the Creative Commons License set.
> To join us in resisting the inclusion of proprietary clauses in CC 4.0,
> there are a few important things you can do:
>   * Send a letter to the [Creative Commons Board of Directors][22] about
> your concerns.
>   * Publish your letter or a blog post on the issue (and send it to the
> list below)
>   * Join the Creative Commons licenses development list to participate
> in discussions of the 4.0 draft:
> [http://lists.ibiblio.org/mailman/listinfo/cc-licenses][23]
>   * Contribute to the CC 4.0 wiki pages:
> [http://wiki.creativecommons.org/4.0][24]
>    [1]: http://governancexborders.com/2011/09/17/cc-global-summit-2011
> -pt-iii-discussing-the-non-commmercial-module/
>    [2]: http://freedomdefined.org/Definition
>    [3]: http://mako.cc/writing/toward_a_standard_of_freedom.html
>    [4]: http://mako.cc/copyrighteous/20040917-00
>    [5]: http://freedomdefined.org/Permissible_restrictions
>    [6]: http://freedomdefined.org/Licenses/NC
>    [7]: http://robmyers.org/2010/02/21/why_nd_is_neither_necessary_nor_s
> ufficient_to_prevent_misrepresentation/
>    [8]: https://creativecommons.org/weblog/entry/26549
>    [9]: http://news.cnet.com/8301-13556_3-9823336-61.html
>    [10]: http://lists.ibiblio.org/pipermail/cc-
> licenses/2005-April/002215.html
>    [11]: http://robmyers.org/2008/02/24/noncommercial-sharealike-is-not-
> copyleft/
>    [12]: http://www.techdirt.com/articles/20110704/15235514961/shouldnt-
> free-mean-same-thing-whether-followed-culture-software.shtml
>    [13]:
> https://commons.wikimedia.org/wiki/Commons:Licensing/Justifications
>    [14]: http://kefletcher.blogspot.com/2011/10/why-not-nc-non-
> commercial.html
>    [15]: http://www.plosbiology.org/article/info:doi%2F10.1371%2Fjournal
> .pbio.1001210
>    [16]: https://creativecommons.org/weblog/entry/28041
>    [17]:
> http://www.freesoftwaremagazine.com/articles/commons_without_commonality
>    [18]: https://creativecommons.org/licenses/by-sa/3.0/
>    [19]: https://creativecommons.org/licenses/by-nc/3.0/
>    [20]: https://creativecommons.org/weblog/entry/8051
>    [21]: https://creativecommons.org/weblog/entry/33430
>    [22]: mailto:Hal%20Abelson%20%3Chal%40mit.edu%3E%2C%20Glenn%20Otis%20
> Brown%20%3Cgotisbrown%40gmail.com%3E%2C%20Michael%20Carroll%20%3Cmcarrol
> l%40wcl.american.edu%3E%2C%20Catherine%20Casserly%20%3Ccathy%40creativec
> ommons.org%3E%2C%20Caterina%20Fake%20%3Ccaterina%40caterina.net%3E%2C%20
> Brian%20Fitzgerald%20%3Cbrian.fitzgerald%40acu.edu.au%3E%2C%20Davis%20Gu
> ggenheim%20%3Cakhawkins%40mac.com%3E%2C%20Joi%20Ito%20%3Cjoi%40ito.com%3
> E%2C%20Lawrence%20Lessig%20%3Clessig%40pobox.com%3E%2C%20Laurie%20Racine
> %20%3Cracine%40lulu.com%3E%2C%20Eric%20Saltzman%20%3Cesaltzman%40pobox.c
> om%3E%2C%20Annette%20Thomas%20%3CAnnette%40macmillan.co.uk%3E%2C%20Molly
> %20Van%20Houweling%20%3Cmsvh%40pobox.com%3E%2C%20Jimmy%20Wales%20%3Cjwal
> es%40wikia.com%3E%2C%20Esther%20Wojcicki%20%3Cesther%40creativecommons.o
> rg%3E%2C%20
>    [23]: http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>    [24]: http://wiki.creativecommons.org/4.0
> URL:
> http://freeculture.org/blog/2012/08/27/stop-the-inclusion-of-proprietary-licenses-in-creative-commons-4-0/
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Promoting Open Knowledge in a Digital Age
http://www.okfn.org/ - http://blog.okfn.org/

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