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Copyright and Commercial Use: the Problem with Creative Commons’ Non-Commercial Use Licenses

Which of the above Creative Commons licensing option conflicts with the entire copyleft and free/libre license ecosystem? (Image by Aharon Varady, licensed CC-BY-SA 3.0 Unported)

This post continues the series of advocacy posts directed at Jewish content creators and aggregators. Other parts of the series discussed the global communal benefit of free primary data resources and issues of copyright license compatibility and the connection between copyright licensing and remixability. While my previous post briefly mentioned the non-free Creative Commons licenses, this post details why you should choose a free culture license. In particular, it urges you to avoid the licenses with the non-commercial-use only (NC) terms. The author, Efraim Feinstein, is lead developer of the Open Siddur Project.

The Jewish digital media community is young. Welcome to it! Those of you who are posting and innovating now are the trend-setters for the near-term. In addition, as long as the material you and your “students” produce remains relevant, the length of the copyright term will ensure that licensing restrictions placed on your data now last well beyond your lifetime, The community will learn, and I hope to convince you that the non-commercial (NC) term of use sets a dangerous precedent going forward.

The community is currently undergoing a transition from resources that are simply “free as in beer” (do not cost money to download and use) but place restrictions on what can be done with their content (examples here) to resources that recognize the educational and cultural value of remixing. The educational arguments in favor of remixability are remarkably similar to the philosophy of free culture, although they differ in focus. Our community, however, has not yet fully embraced the values of user freedom, and is subject to the confusion created by the choice offered in the spectrum of rights that Creative Commons licenses offer. The Creative Commons brand is recognized, but the differences in terms between the various licenses are not, leading to unhelpful suggestions like “use a Creative Commons license,” without specification of which one. While Creative Commons uses a logo to distinguish its free licenses from its non-free licenses, the brand name itself is still more recognizable than this logo.

One argument that I have heard promoting the use of the non-commercial term is the fear of a larger bogeyman. The identity of this bogeyman differs depending on who is making the argument. For content developers, the bogeyman is often a large publishing house. The new media entrepreneur worries that a larger publishing house will either take their free data and undercut their price or sell their free data without returning anything to its source.

This argument does not distinguish between two types of relationships with commercial entities: simple “commercial use” and “exploitation.” The free culture community answers the exploitation argument by proposing copyleft, also known as ShareAlike. Under copyleft licenses, any derived works of the original work must be released under the same terms as the original. What was once free remains free. The large publishing house bogeyman who publishes a copylefted work must allow the person who received the work to copy, modify, sell, and create derivative works of your work, just like any other user. Their intellectual improvements to the work can therefore be reincorporated into the original, diluting any advantage of the large publishing house’s version aside from the unique value added by their version (such as the fact that it’s a physical bound copy). In addition to the optional copyleft, all Creative Commons licenses except for the “Creative Commons Zero” (CC0) public domain declaration have anti-DRM clauses that prohibit adding digital rights/restrictions management that disallow users from exercising their rights under the license, so a third party is prevented from Tivo-izing your material.

Further, publishing houses that make use of your data can become your supporters. If your project provides them with useful data now, you will likely be able to provide them with useful data in the future, forming symbiotic relationships between publishers and content creators and aggregators.

Non-commercial use restrictions are particularly dangerous in combination with the ShareAlike term, as is the case in the Creative Commons Attribution-NonCommercial-ShareAlike (CC-BY-NC-SA) license. The reason is that the ShareAlike term ensures that derivative works are released under the same terms as the original. Overuse of the CC-BY-NC-SA license will result in two copyleft ghettos that cannot be mixed with each other: one that allows commercial use and one that does not. The existence of the non-commercial partially-free ghetto can only lead to duplication of effort and waste, both by commercial and non-commercial entities.

Don't make your copyleft, copywrong. License with a CC-BY-SA license instead of the CC-BY-NC-SA (Image by Aharon Varady, licensed CC-BY-SA 3.0 Unported.)

The interpretation of Creative Commons’ NC term has been the subject of misunderstanding and debate. In 2009, Creative Commons issued a report on the variant interpretations of the NC term between content creators and user/remixers. The study found that users tend to be more conservative in their interpretation of NC than creators, leading to failed sharing.

One proposed resolution to the varying interpretations of the NC term is for the creator to spell out what is expected. MIT OpenCourseWare is one such example of a well thought out model. However, even this liberal interpretation of the NC term blocks innovation and remixability by a large class of users for purposes which provide for the social good but involve an exchange of money beyond at-cost.

The real difference between MIT’s model and the model of many free resources in the Jewish community is that, it seems to me, MIT intends not to limit commercial use, but to reserve rights to commercial use. MIT is acting as a distributor for a collective of a relatively small number of copyright holders (the faculty) who themselves may have outside commercial interests in the material. Because only a few are involved and they are easily found, the NC license invites commercial users to obtain a separate licensing agreement for commercial publication. The NC term is creating a permission culture for commercial use of the work that is separate from the (semi-)free culture of its non-commercial use. Many content creators and aggregators in the Jewish community have no commercial interest in the work, which requires a different thought process from an entity that wants to reserve commercial rights.

A community-driven project that uses an NC term is in an even harder position. Not only is it content-incompatible with truly free resources, including Wikipedia, but it is also limited in what it in itself can do with derivative works of its own creation, once it has accepted a contribution from an outside contributor under the NC terms. For community-created works, there is no single author with whom to negotiate.

Further confusion is generated by the equation in many previous “free” resources of “non-profit” with “non-commercial.” With the advent of new business models, the lines between various entities with social purpose are increasingly blurred. This is the era of the “social enterprise.” While traditional non-profits rely on grants and donations to ensure their continued functioning, many social enterprises prefer to ensure their future sustainability by offering products on the market that help their social mission. A no-commercial use copyright term prevents these enterprises from transacting business with your data unless they negotiate separate terms as described above.

Whatever your form of legal incorporation (if any), it is hard to argue that you have envisioned 100% of the uses of your data from now until 70 years after your death. By blocking commercial use of materials, an entire group of social enterprises has been cut off from any use of your data, no matter how innovative.

For the reasons outlined above, I urge you to avoid licenses that restrict commercial use. If you are worried about exploitation, choose a license with a copyleft (ShareAlike) term.



6 comments to Copyright and Commercial Use: the Problem with Creative Commons’ Non-Commercial Use Licenses

  • Avatar photo Tal Niv

    I really enjoyed reading and I want to offer my support for literally every sentence. Just one minor question, have you thought about the possibility to encourage use of the CC0 in lieu of licensing for free Jewish resources?
    Would be glad to assist in any way and will of course continue reading your posts.

    Tal Niv
    Creative Commons, HQ

  • Avatar photo Aharon

    Thanks for reading, Tal. Content contributors to the Open Siddur Project are offered a choice of the three non-conflicting free/libre licenses from the Creative Commons: CC0, CC-BY 3.0, and CC-BY-SA 3.0 Unported. This ensures that by the time our Open siddur web application is built, all of the content contributed is already available for remixing without needing to return to the content creators. By quantity of text, most of our content currently is licensed CC0. When, Efraim Feinstein, our lead developer (and author of the essay above) converted the text of the Westminster Leningrad Codex to the XML schema we use (JLPTEI), he licensed the output with CC0. Such is our policy when making digital editions of any text or art in the Public Domain. Most contributors of contemporary work under copyright choose to license their work with the CC-BY-SA 3.0 Unported because attribution is important to them, and they would like a chain of attribution preserved in any derivative works.

    Aharon Varady
    Founder & Director
    The Open Siddur Project

  • Tal,

    Thanks for commenting!

    I think there’s a place for both licensing and public domain dedications. If someone does use a public domain dedication for new works, CC0 is definitely the way to go. My philosophy on it can be summed up like this: primary data which derives from the public domain should remain public domain, independent of any insertions that are questionably copyrightable anyway (like markup). For the questionably copyrightable material, CC0 may have some advantage over the new public domain certification, even if the “licensing” backup isn’t required.

    For original material, authors frequently want notoriety for their ideas, and I’ve found that some educators have a particular interest in assuring attribution aside from copyright issues and are leery of even allowing non-attribution. For them, CC-BY is a good choice.

    I found that the most common fears about freeing works are: (1) fear of association with a modified work that the original author doesn’t agree with. In places without moral rights (like the US), the licensing requirement to identify modified works is a potential answer, and (2) the fear of exploitation. It’s the latter that pushes a lot of people into NC licenses and I think ShareAlike/copyleft is a great answer to that concern.

    Also, the anti-TPM (technological protective measures) restrictions may be attractive to some authors who don’t want to see their original works introduced into proprietary works exploitatively.

    The above, though, are only concerns for those who actually think about the issue. The vast majority of Jewish new media sites just copy-paste legal boilerplate into their terms of use agreements that makes their content non-free and sometimes even undermines the entire stated purposes of the sites. Our two goals here are to educate the public about the issue, and help them make the right choices.

  • […] “Efraim” has a new post on why content creators should decline to use the Non-Commercial clause as part of a Creative Commons license. From the post: One argument that I have heard promoting the use of the non-commercial term is the fear of a larger bogeyman. The identity of this bogeyman differs depending on who is making the argument. For content developers, the bogeyman is often a large publishing house. The new media entrepreneur worries that a larger publishing house will either take their free data and undercut their price or sell their free data without returning anything to its source. […]

  • […] non-commercial use licenses • the open Siddur project. Retrieved July 4, 2016, from Advocacy, http://opensiddur.org/concerning/open-source-judaism/advocacy/why-to-choose-a-free-creative-commons-… When we share, everyone wins. Retrieved July 4, 2016, from […]

  • […] The universe, through its physics, applies its own standard. Scientists and engineers apply their standards in order to interoperate. And so too, do linguists, grammarians, and literary stylists. What’s important to me, and I hope so too, for you, is that we honor and respect what is useful to interoperate giving freedom for the evolution of culture and its languages. (And this is why all of the Open Siddur Project content is shared with free-culture attribution licenses.) […]

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