15 September 2009

Nonplussed by Non-Commercial

One of the vexed issues in the world of Creative Commons licensing is what, exactly, is meant by "non-commercial" use. In an attempt to clarify things, the Creative Commons people have commissioned a study, which has now appeared. Here are some of the highlights according to the press release:

Creative Commons noncommercial licenses preclude use of a work “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” The majority of respondents (87% of creators, 85% of users) replied that the definition was “essentially the same as” (43% of creators, 42% of users) or “different from but still compatible with” (44% of creators, 43% of users) theirs. Only 7% of creators and 11% of users replied that the term was “different from and incompatible with” their definition.

Other highlights from the study include the rating by content creators and users of different uses of online content as either “commercial” or “noncommercial” on a scale of 1-100, where 1 is “definitely noncommercial” and 100 is “definitely commercial.” On this scale, creators and users (84.6 and 82.6, respectively) both rate uses in connection with online advertising generally as “commercial.” However, more specific use cases revealed that many interpretations are fact-specific. For example, creators and users gave the specific use case “not-for-profit organization uses work on its site, organization makes enough money from ads to cover hosting costs” ratings of 59.2 and 71.7, respectively.

On the same scale, creators and users (89.4 and 91.7, respectively) both rate uses in which money is made as being commercial, yet again those ratings are lower in use cases specifying cost recovery or use by not-for-profits. Finally, both groups rate “personal or private” use as noncommercial, though creators did so less strongly than users (24.3 and 16.0, respectively, on the same scale).

In open access polls, CC’s global network of “friends and family” rate some uses differently from the U.S. online population—although direct empirical comparisons may not be drawn from these data. For example, creators and users in these polls rate uses by not-for-profit organizations with advertisements as a means of cost recovery at 35.7 and 40.3, respectively—somewhat more noncommercial. They also rate “personal or private” use as strongly noncommercial—8.2 and 7.8, respectively—again on a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial.”

I hope you got all that, for I certainly didn't. All that comes across to me from these figures is that "non-commercial" is so fluid a concept as to be useless.

The Creative Commons people rather created a rod for their own backs when they allowed this particular licence, which was bound to problematic. Indeed, it's striking that the GNU GPL, which doesn't allow this restriction, avoids all these issues entirely. Probably too late now to do anything about it...other than commissioning surveys, of course.

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Crosbie Fitch said...

Given that Lawrence Lessig started from a basis of what copyright holders might or might not mind the recipients of their work doing, it shouldn't be too surprising.

CC is the copyright holder saying:

ND) I don't mind people copying my work as long as they don't build upon it.

NC) I don't mind people copying my work as long as they don't make any money out of it (if they can, see me).

SA) I don't mind people building upon my work as long as they also let others build on theirs.

A) I don't mind what people do as long as they make sure my name appears in the credits.

And combinations thereof. All standardised PERMISSIONS of the copyright holder.

There's no hint of any nod to the natural rights that would resurface if the idea that a copyright holder was in a position to give permission was instead thrown completely out of the window in the first place.

Copyright is like Sauron's ring. Aside from throwing it into Mount Doom, the best you can do with it in the interim is to neutralise it completely (GPL). To instead allow the copyright holder to pick and choose some standardised constraints is still copyright, still unnatural and unethical - the temptation that corrupted Saruman...

and the temptation currently seducing some toward the AGPL.

Glyn Moody said...

Interesting framing - thanks.

Peter said...

I think as Creative Commons gets stronger over the years, the NC option becomes less relevant. But I do think it was a huge selling point when we first started out. "What's to stop someone from simply making copies of my work and selling them?" - That seems to be a common fear I've heard expressed and "NC" can calm that particular fear.

I think some sort of "you can't sell copies" option needs to be in the CC for now but it's true that the broad "any sort of commercial use" restriction often complicates matters more than clarifies them.

The GPL is an interesting example though I agree with Stallman that it is tolerable that cultural works be commercially restricted for some time. The GPL didn't leave out commercial restrictions to simplify matters, they were left out because such restrictions can really put the brakes on development and distribution. Linus Torvalds didn't understand this when he first licensed Linux. Finally (and fortunately) he realized it was counter-productive to put commercial restrictions on the kernel and adopted the GPL.

Glyn Moody said...

@Peter: well, phasing out NC option would be good, but I don't see how that might happen. And while it's available, I'm sure many people will opt for it "just in case"...

Sure, it would have been hard at the start, but it would certainly have been cleaner...

Peter said...

If it is phased out, how do you get artists who say,

"I don't mind people sharing my works but I don't want them making copies for sale"

on board? Where would they fit in?

Glyn Moody said...

They fit as programmers fit in with the GNU GPL: that is, they come to accept it as a form of marketing that gets their work more widely known. The "loss" of revenue can be interiorised as marketing costs...

Peter said...

I see where you are coming from though money from the direct sale of Free software is negligible - and becoming more so the more the Internet spreads.

On the other hand, a novel is a different story (pun intended) because unlike software, the demand for tangible copies is there even if digital copies are circulated. If a restriction on selling hard copies enables an author to gain leverage with a publishing company (who sees buying the monopoly rights on selling tangible copies as profitable) then it may be hard to convince authors to not only allow sharing but also give up an opportunity to do business with publishers.

If one publishes tangible books, it could be advantageous to claim that no other publisher can sell hard copies but me. Others can print them, but you know their business couldn't last because they would be forced to give the copies away for free if they wish to distribute.

Glyn Moody said...

I don't pretend this is easy - otherwise people would have sorted it all out...

As far as physical books are concerned, how about this. If anyone can publish your work, you come out with the authorised version - hand signed by you. No one else can do that, and I'd bet that most people would buy it. Those that couldn't afford it would buy the cheapo one...which would be fine, too, since they wouldn't buy the authorised version anyway.

Well, it's a start.

Peter said...

Personally, I think that's a great idea though it may drive publishers away who might be interested in making an offer. After all, that strategy shaves off a fair chunk of the potential monopoly the publishing company was eyeballing. Now only signed copies can be monopolized.

Or maybe not. I have to think about this some more. Damn you Glyn, always making me think. :)

I wonder if there is room for a specific *not-for-resale* license but all other commercial use is OK. That would at least simplify things a bit.

David Gerard said...

This is why Wikimedia doesn't allow -NC - it's so unpredictably restricting as to be actively harmful.

Glyn Moody said...

It changes publishing, certainly. But since we're busy disrupting computing, the newspaper industry, the music business et al. why not add one more?

Crosbie Fitch said...

If someone can sell digital copies despite the fact that they cost nothing to make, they MUST be adding value. That added value is the value THEY add, not the monopoly holder, therefore it is the person who adds value who deserves whatever they can exchange it for (in a free market).

If anyone can make money by selling copies of this comment of mine (without violating any natural rights), then they deserve EVERY penny.

Of course, if you believe in copyright you say "Well, now, hang on. This is my commercial monopoly, and if anyone's making any money out of my work whether it's entirely down to them or not, then it's my privilege to demand a piece of the action - ethics be damned".