Tuesday, December 20, 2011

Creative Commons and Noncommercial: CC Version 4.0 discussion

As posted to the cc-licenses list December 20, 2011

A few thoughts towards the version 4.0 discussions, focusing on noncommercial:

Noncommercial, to me, is NOT the most restrictive of the CC license elements, except in a technical sense. This is because noncommercial - the public sphere - is the very essence of the commons. As a long-term open access advocate, my considered opinion is that the strongest license for open access to scholarly works is CC-BY-NC-SA, as this is the license that most protects open access downstream.  As we move towards the development of a global commons, we need to keep in mind the society that we live in at present. The kind of license that may be ideal in the society many of us are striving for can be a danger to the commons in the interim. For that matter, in a society where sharing is the default, we should question whether licenses will still be necessary. Even at present, while CC licenses are most helpful in an open access context, I would argue that licensing should not be necessary; what is more important for the longer term is developing and articulating a culture of

 sharing. CC licenses is only one of many approaches.

I understand that there is some genuine confusion about what constitutes commercial use, and that this may differ by region. For this reason, it may be helpful to further refine the license terms, and perhaps include two different types of noncommercial. Some thoughts towards this end:

-    Is selling the actual conten the common element understood by anyone who uses noncommercial? If so, is this clearly spelled out in the NC license?

-    Education - learning and teaching - should not be considered commercial. Here is a post with my attempt to articulate this:

-    Providing commercial services that support education is a genuine gray area, and one where there may be good reason to have two different licenses. Organizations that rely to some extent on print-on-demand services should be able to say no to this, while many creators who have no interest in bothering with this might want to say sure, go ahead. I strongly advocate for understanding the need for creators to make a living, and including those who share as much as they can while reserving some rights so that they can make a living in the commons. For this reason, I do not support efforts to remove those who choose noncommercial from CC.

-    Advertising is another gray area. Here, I am wondering whether a key issue is not so much advertising per se, as the extent, and whether reciprocal services are offered. For example, an internet search service that leads users to CC licensed content and in the process uses very limited amounts of content is a very different situation from a commercial outfit creating a mirror site of a whole journal, publishers' offerings, or scholar's blog, and selling advertising on the mirror site, or a pharmaceutical company printing off thousands of reprints for their salespeople to take to doctors' offices. In the former case, I wonder if there are fair use / fair dealing arguments, at least in some jurisdictions. If not, would this give the corporate sector reason to argue for fair use / fair dealing exemptions? In the latter case, I think many creators do actually wish to prevent such commercial use, which may impact the moral integrity of the creator as well as potential economic impact.

Many thanks to CC for great work advancing the commons over the past few years, and for the opportunity to participate in discussions towards the next round.

Heather Morrison, MLIS
Doctoral Candidate, Simon Fraser University School of Communication
The Imaginary Journal of Poetic Economics