The Silent Number

Posted: 2012-08-27

 This is crossposted from the Students for Free Culture blog: http://freeculture.org/blog/2012/08/27/stop-the-inclusion-of-proprietary-licenses-in-creative-commons-4-0/
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” 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 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 or taken any ethical position 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. 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 (NC) and NoDerivatives (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 are either permitted by fair use anyway or already protected by free licenses. The NC clause is vague 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 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 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 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 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 (such as OpenCourseWare) and Open Access to research. With the percentage of CC-licensed works that permit remixing and commercial use having doubled 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 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 to Attribution-NonCommercial). 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", which was another great step in the right direction. In July of this year, Creative Commons released a completely redesigned license chooser 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 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
• Contribute to the CC 4.0 wiki pages: http://wiki.creativecommons.org/4.0