[cc-community] Simplifying Licenses
Gisle Hannemyr
gisle at ifi.uio.no
Thu Mar 5 09:12:47 EST 2009
On 05.03.2009 13:35, mp wrote:
> I have not followed this discussion closely this time around, but I did
> years ago and have recently, in connection with an embryonic project,
> been in touch with Diane Peters, CC' General Counsel, about similar
> issues and she noted that it has been recognised that the NC clause
> requires what we can call an analytical "breakdown" based on empirical
> evidence (and that is apparently part of the current NC review process):
>
> The non-commercial clause is misleading/ambiguous/virtually useless
No, it has many uses (read on).
But a fairly simple use is to uphold basic author's rights by
preventing companies from using work released with a NC
condition for advertising (or at least it allows the author to
collect for damages if they violate this condition).
This is perfectly enforcable.
A friend of mine got US $ 2150 when a retail chain used one of his
Flickr photos (published under CC BY-NC) for advertising.
Full story: http://heim.ifi.uio.no/~gisle/blog/?p=92
> because it is presumably intended for use by independent creators who
> want to prevent big players from using their creation to make money, but
> the very same people who want to prevent, say, Rupert Murdoch from
> cashing in on their work, might very well want the local social centre,
> NGO or community group to be able to generate a little but of income by
> selling copies of that work.
I don't understand this argument (which I often hear as an argument
against NC).
Nothing stops the people you speak of from granting the local social
centre, NGO or community group the rights they need to generate
income by selling copies of that work.
Every commons deed contain the following phrase:
"Any of the above conditions can be waived if you get permission
from the copyright holder."
and this exemption goes for the NC condition as well.
The NC condition is not there to prevent commercial use of a work.
It is there to let the author /control/ commercial use of the work.
This control is (IMHO) what makes the NC condition most useful.
> What is needed is a clause that prevents corporations with only profit
> motivations, but allow community building initiatives.
No. You can only regulate so much through licensing, and trying to make
this sort of distinctions through license clauses will be utterly
confusing to both authors and users.
"Motivation" is a very elusive thing, because some people
lie about what motivates them.
For instance there are some NGOs in my neighbourhood that
claim to work for the public good, but basically operate to
create profit for their officers - (usually by buying services
from the officers private companies at inflated prices). I
don't want the officers of these NGOs to profit from my work,
any more than I want Rupert Murdoch to profit from my work.
In short: Having a clause that makes some sort of distinction
based upon the "motivations" would mean that we would need to
hire a psychologist to interview the users to decide the
real motivations of the user. This is not practical.
Even if we leave the confusing issue of "motivation" out of
the equation - there are examples of users with a non-profit
motivation that I do not want to support.
For instance a neo-nazi/white supremacist activist group may
be made up of honest, hard-working, unpaid, dedicated people.
I still do not want such an activist group to use my work for
fundraising.
So - I'm very much in favour of an expansive interpretetation of the
NC-clause, along the following lines: If there is any doubt, consider
it commercial use and let the author decide whether he/she will still
grant permission.
> Such community building actions as performed by social centres, activist
> groups etc. are clearly commercial and they are also clearly for profit
> (that's the whole point: to generate cash), but they are very, very
> different from AOL/Time Warner's ideas of commercial, profit oriented
> activities.
>
> CC does not provide a solution for that.
I don't see why CC /should/ provide a solution for that.
I release most of my work with an NC claise (contributions to Wikipedia
being the sole exception).
This leaves me with enough control to grant (for instance) Ammnesty
International the rights to use my photos and texts for fundraising,
and to refuse a neo-nazi/white supremacist activist group the same
rights.
The solution already in place for the NC clause - that they have to ask
so the author can decide what to do on a case-by-case basis - is in my
opinion the only acceptable solution.
If the NC clause was removed or weakened so that I as an author
no longer have this option, I would simply stop releasing material
under a Creative Commons license.
--
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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"Don't follow leaders // Watch the parkin' meters" - Bob Dylan
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