[cc-licenses] Will CC 4.0 Make NC Clause Problems Worse?

Heather Morrison hgmorris at sfu.ca
Fri May 4 19:05:15 EDT 2012

David Wiley's points about the "entire agreement" clause make sense. May I suggest that this clause would cover (legally prevent) additional restrictions, and so should be retained. I have argued that NC make explicit that educational use is not considered commercial.

"Add-ons" - links to further information - still makes sense to me. If adds cannot add effective new restrictions, they can include further waivers. For example, when NC is used, it may be in some cases that the licensor wishes to reserve specific commercial use rights, but is willing to grant others, in which case an add-on can be helpful.

Another example of how an add-on can be helpful is to provide further clarification, e.g. to link to a Frequently Asked Questions that apply to some circumstances or types of material but not others and hence don't make sense to include on the CC site per se.

Regarding remix, one thought is why note have combined works where different licenses apply to different elements? This is already happening. For example, if I create a powerpoint and use my preferred CC license, but include a photo with a different CC license, I note that CC license of the photo along with link to the original. 

Even on my own blog, I have one license that applies to the blog as a whole, but separate licenses for some of the individual blogposts. This may be awkward for now, but perhaps in time technological solutions will make this easier - or, if this is difficult, then perhaps this will help drive expanded fair use / fair dealing rights to diminish the need for micro-level permissions clearance.


Heather Morrison

On 2012-05-02, at 5:45 PM, David Wiley 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
> concepts.)
> 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.
> David
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