[cc-licenses] Will CC 4.0 Make NC Clause Problems Worse?
diane at creativecommons.org
Fri May 4 19:32:45 EDT 2012
We may not have been clear enough in our notation contained in the first
draft of 4.0. Apologies if not, and thanks for pointing this out on list.
It's not the case that CC is proposing to eliminate the provision currently
found in 8(d)/(e) in 3.0 (subsection depends on license). In draft 1, we
pulled two similarly-spirited provisions from different places in the 3.0
license and indicated our intention to place them together a new Section
6(c), probably to be called Additional Terms. Both provisions deal with
added terms: the first (found in 4(a) in 3.0), prohibits licensees from
placing restrictions on the work that restrict the license or the ability
of a recipient of the work to exercise rights under the license; and the
other, commonly called an integration clause, which you reference below.
We hope to make a proposal for that new section soon -- suggestions for
both those provisions as well as our plans for co-locating them are always
On Wed, May 2, 2012 at 5:45 PM, David Wiley <david.wiley at gmail.com> wrote:
> A nicer version of this message, with formatting and links to sources,
> is available at http://opencontent.org/blog/archives/2301. You
> probably want to read it there.
> I’ve said a number of times that I wouldn’t engage in discussions
> about the NC clause in the future. However, during the comment period
> for the 4.0 licenses I have to give some feedback – not about the NC
> clause, but about another section of the license that is critically
> important to the functioning of the NC clause, vague and imperfect as
> it may be.
> The current version of the Creative Commons BY-NC-SA license, Section
> 8, Subsection e, reads:
> This License constitutes the entire agreement between the parties with
> respect to the Work licensed here. There are no understandings,
> agreements or representations with respect to the Work not specified
> here. Licensor shall not be bound by any additional provisions that
> may appear in any communication from You. This License may not be
> modified without the mutual written agreement of the Licensor and You.
> This means that the extra “add-ons” organizations try to attach to CC
> licenses are, according to the license itself, prohibited and
> meaningless in the context of the license.
> The most popular of these add-ons is one in which institutions define
> “Noncommercial Use.” The way these statements are included on websites
> next to the link to the CC license would lead you to believe that they
> are somehow incorporated into the license by reference. Not true, it
> turns out – in fact, the license explicitly prohibits a Licensor from
> trying to do that.
> Now, why would CC want to prohibit people from providing local
> definitions of Noncommercial Use? Let’s take a look at two concrete
> examples of the prohibited add-ons. First up, the relevant language
> from MIT OCW’s add-on:
> Materials may be used by individuals, institutions, governments,
> corporations, or other business whether for-profit or non-profit so
> long as the use itself is not a commercialization of the materials or
> a use that is directly intended to generate sales or profit.
> Next up, the MITE add-on:
> MITE understands that the Noncommercial (NC) restriction on this
> Creative Commons license precludes institutional use of the materials,
> including by governments, corporations, public entities, and
> businesses, whether for-profit or non-profit.
> So here are two almost perfectly contradictory definitions of
> Noncommercial Use. I’m not passing judgement on which is better – for
> sake of my argument it doesn’t matter. The salient point is that the
> definitions contradict each other.
> Both these sites (MIT OCW and MITE) use the ShareAlike clause together
> with the NC clause. The SA clause includes the statement, “You may
> Distribute or Publicly Perform an Adaptation only under the terms of
> this License.” This language forcibly relicenses materials remixed
> into a BY-NC-SA work under the same (BY-NC-SA in this case) license as
> the original work IF the work is to be distributed or publicly
> performed. For this reason, BY-NC-SA works (like MIT OCW) and BY-SA
> works (like Wikipedia) cannot be remixed – the SA clauses of the
> BY-NC-SA and the BY-SA license conflict, both trying to relicense the
> other under its own terms. (If this is confusing, please play my CC
> licensing remix gamewhich will help you master the the underlying
> Consequently, if CC licenses were to allow local definitions of NC to
> be incorporated into a BY-NC-SA license by reference, we would
> frequently – but not always – find ourselves in a situation where two
> BY-NC-SA licensed materials could not be remixed because they would
> actually be licensed under different licenses due to the language of
> the add-on. To be more concrete, if add-ons were legal you could not
> remix MIT and MITE content because they would be licensed under two
> different licenses, even though on the surface they appear to be the
> same license. And you thought NC was confusing before!
> In the current draft of the 4.0 licenses the Section 8 Subsection e
> language has been removed (see this handy comparison chart.) If
> something similar is not put back in its place in the proposed new
> Additional Terms section, CC will not have six licenses – it will have
> infinitely many licenses. Talk about license proliferation!
> Consequently, I believe the 4.0 licenses MUST INCLUDE language similar
> in function to the current Section 8 Subsection e.
> Frankly, the whole situation is reminiscent of the entangled problems
> of immigration reform in the US. Since the Feds refuse to act on the
> issue, individual states are acting in ways that are not entirely
> harmonious (or necessarily sensible). Similarly, if CC continues to
> refuse to define the NC term, individual Licensors are each going to
> want to provide their own definition. However, under no circumstances
> should they be allowed to do that.
> People sometimes wonder why I talk about 4R permissions, asking if
> “revise” and “remix” are really that different. Revise is something
> you do to the inside of a resource. Remix is combining two or more
> resources together into a new work. If MIT and MITE were allowed to
> define NC locally, remix with other BY-NC-SA works would cease to be
> permitted for their works, but revise would continue to be permitted.
> License incompatibilities are the primary reason why there are 4 Rs
> instead of just 3.
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> in the CC licenses http://wiki.creativecommons.org/4.0 development
> process, please direct unrelated discussions to the cc-community list
Diane M. Peters, General Counsel
cell: +1 503-803-8338
email:diane at creativecommons.org
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