[Oer-community] Article on the inclusion of proprietary licenses in CC 4.0

Seth Woodworth seth at laptop.org
Fri Nov 30 09:55:50 MST 2012


http://freeculture.org/blog/2012/08/27/stop-the-inclusion-of-proprietary-licenses-in-creative-commons-4-0/

This section in particular is relevant to our conversation

-----

  The two proprietary clauses remaining in the CC license set are
NonCommercial <http://freedomdefined.org/Licenses/NC> (NC) and
NoDerivatives<http://robmyers.org/2010/02/21/why_nd_is_neither_necessary_nor_sufficient_to_prevent_misrepresentation/>
 (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 <https://creativecommons.org/weblog/entry/26549> are either
permitted by fair use anyway or already protected by free licenses. The NC
clause is vague <http://news.cnet.com/8301-13556_3-9823336-61.html> 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<http://lists.ibiblio.org/pipermail/cc-licenses/2005-April/002215.html>
 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<http://robmyers.org/2008/02/24/noncommercial-sharealike-is-not-copyleft/>
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enforcing outdated business models and the restrictions they depend on.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<http://www.techdirt.com/articles/20110704/15235514961/shouldnt-free-mean-same-thing-whether-followed-culture-software.shtml>
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<https://commons.wikimedia.org/wiki/Commons:Licensing/Justifications>
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.
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