A few weeks ago, Students for Free Culture published a detailed and thoroughly cited post calling for the retirement of proprietary license options in Creative Commons 4.0. Already the story has been picked up by Techdirt and Slashdot and it has spurred lots of heated debate around the value of the NonCommercial (NC) and NoDerivatives (ND) licenses to Creative Commons and to rightsholders, but not a lot of discussion has been framed around the official mission and vision of Creative Commons.
Creative Commons has responded to the post stating that adopters of NC and ND licenses "may eventually migrate to more open licenses once exposed to the benefits that accompany sharing," maintaining that these licenses have been a strategic measure to approach that goal. The name Creative Commons itself highlights the aim of enabling a network of ideas and expressions that are commonly shared and owned or, as we usually call it, the commons. To be very explicit, one need not look any further than Creative Commons' mission statement (added emphasis) to see that this is what they work for:
Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.The NC and ND clauses are non-free/proprietary because they retain a commercial and/or creative monopoly on the work. Legally protected monopolies by any other name are still incompatible with the commons and undermine commonality. There is no question as to the purpose of Creative Commons or the definition of free cultural works. What Students for Free Culture has offered is not primarily a critique of proprietary licenses, but a critique of Creative Commons' tactics in providing them. The idea that the non-free licenses "may eventually migrate to more open licenses once exposed to the benefits that accompany sharing" is a reasonable one, but one that deserves careful reflection after a decade of taking that approach.
Our vision is nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.
This line of reasoning is intuitive in a permission culture: that license options which sound good to rightsholders will lure them into giving up some restrictions licenses and becoming more comfortable with the idea of fully liberating their works. Encouraging the use of free culture licenses then becomes a problem of education and communication of values, and the question then becomes whether or not the proprietary licenses make that task easier or more difficult.
Some argue that rightsholders are not ready for free culture and that they need to be eased into it. Anecdotal arguments supporting this idea say that people switch to free licenses from the non-free ones once they learn about how problematic NC and NC are, but there is no evidence to support this claim. We have no idea how strong Creative Commons' campaign for free licenses would be if they only provided free culture licenses from the start, and Students for Free Culture suggest that in the current climate of copyright and intellectual property maximalism, what we need is to stretch what is accepted as reasonable position to take, not sit comfortably within it.
It may be counter-intuitive that only offering free culture licenses would bring more rightsholders to liberate their works over time, but if we consider that this would allow Creative Commons to have a cohesive message behind the licenses they do offer, we can imagine their educational materials could be much more powerful. More importantly, they would be expanding the perceived realm of possibility. Students for Free Culture argue that the proprietary licenses are mainly used because they are misunderstood and function to reinforce those misconceptions rather than move rightsholders towards free culture. It is analogous to telling people to vote for the lesser of two evils to ease them out of supporting a two-party political system. It may seem practical and appear to bring more steady and reliable change, but it only serves to reinforce the status quo.
The popular criticisms of the post are actually very revealing of this very idea.
All of the defenses of proprietary clauses which have been raised in the recent debate boil down to these types of arguments: that everything should be CC-licensed because it is better than "all rights reserved"; that Creative Commons needs to support all the options that rightsholders want; that not providing more license options is restricting freedom; and that the non-free clauses do serve worthwhile purposes even if they are oppose free culture. These arguments are all problematic in ways either explicitly mentioned or linked to from the original post, and underscore how much extra work this makes for Creative Commons.
The everything-should-be-CC-licensed argument:
- "Big media could adopt NC or ND, but not free culture licenses"
- "So much is already similarly available, it should all be CC"
- "The purpose of Creative Commons is to provide a diversity of options"
- "Creative Commons isn't an ideological organization about free culture"
The freedom of choice argument:
- "Everyone's freedom should be respected"
- "This is an effort to dictate our license choices"
- "Promoting freedom by taking away choices is hypocritical"
- "This is just one definition of freedom"
The NC-and-ND-clauses-are-useful argument:
- "They serve a purpose even though they aren't free"
- "A vague protection is better than nothing"
- "These protect us from big media stealing our work"
- "Not everyone wants to use a free culture license"
These three types of arguments exclude those that have been made purely concerned with the interests of rightsholders and the many many interesting and creative misunderstandings of the license terms and enforceability. This all serves to indicate that Creative Commons' current strategy is working against all of the great work they do promoting a freer culture. People don't need to be convinced that copyright is a broken system. Instead, Creative Commons should be focusing on affecting what people believe is an acceptable position, showing the world that much more is possible, and proving that we can and are building a free culture.