Development of Creative Commons licenses

[James Grimmelmann <james.grimmelmann AT yale.edu>]

At 06:03 PM 8/16/2004, Greg London wrote:
> The question is whether or not "many" CC licenses is an issue or not.
>
> the main argument is that "many" licenses creates incompatibility
> problems, or at the very least, questions of how to combine works
> of different licenses such that all license requirements are still met.
>
> This is a problem only if the original work is intended to become
> derived many, many times beyond the original. I don't think this
> is the Creative Commons model.

I would disagree that Creative Commons has "a" model.  Creative Commons 
licenses are designed to work with a great many business models and a great 
many cultural models.  The hope is that a simple _legal_ model can suffice 
to help many of these business and cultural models to flourish in a happy 
and symbiotic coexistence with each other.

I would strongly disagree with the idea that the creation of derivative 
works (and long chains of derivative works) is not really part of the 
Creative Commons model (even if we're only allowed to have one).  From the 
outset, Creative Commons has pointed out the importance of creators having 
large bodies of shared content that they can rework, reimagine, and 
reinterpret as they develop derivative works of their own.  And I think 
Creative Commons has been quite up front about these values: the Reticulum 
Rex video (http://mirrors.creativecommons.org/reticulum_rex/), for example, 
is very much about derivation and rederivation.

> CC's "niche" is to offer Market-Economy
> licenses that are more liberal that "All Rights Reserved", that leverage
> some of its liberal rules in an attempt to offer free-distribution and
> free-samples and free-word-of-mouth about some really cool work that
> might not otherwise get noticed.

Your categories of Market Economy and Gift Economy provide one way of 
looking at models of creation.  I don't know that things are so neatly 
categorized: in my summer at Creative Commons, I've talked to an awful lot 
of creators whom I'd be hard-pressed to put in one of those boxes or the 
other.

Many of them have content with one well-defined money-making channel, and 
they want to release that content into other channels, not from a desire to 
increase revenues, but from a sincere belief that they're giving something 
to the community at large (even in cases where doing so cuts into their 
money-making channel).

Others choose Attribution only, because they want their work picked up and 
transformed and available even to people who can't use ShareAlike for their 
derivative works.

Still others want to participate in what you'd call a "Gift Economy" but 
want to keep the corporations out entirely: they pick 
Attribution-NonCommercial-ShareAlike so that their work is part of a 
cultural commons that can never turned into a source of revenue at all.

Personally, I think that taking all of these people's wishes seriously is 
the right thing to do, even though I often don't understand their 
particular motivations.  I treasure that bafflement, actually, because it 
means they may have something important to teach me about creativity and 
making creativity work in our society.  The person whom I think 
misunderstands a CC license may in fact understand something deeper and 
more important: they may be showing us a new and exciting way to use that 
license, or they may be showing us an opportunity for a new license to do 
some good.

All of this is a long-winded way of saying that "getting noticed" is not 
the only goal of CC licensors who choose something other than CC-SA, and 
that these other goals are valuable.

> CC's "twist" on licensing is to offer NonCommercial with a bunch of options.

I like to think that CC has something more to offer the world than this.

It may be helpful also to point out that there are three possible kinds of 
rules involved in CC licenses (indeed, in any similar license).
* Procedural requirements: What steps must someone take to use the licensed 
work?  Must they pay a set fee?  Must they give credit to the original 
author?  Must they attach a copy of the license?
* Use restrictions:  Can someone sell copies of the work?  Can they use it 
in advertising?  Can they use it contrary to the artistic intent of the 
original author?
* Derivative restrictions: Can they make derivative works?  How 
transformative must derivative works be?  Must derivative works be 
relicensed on particular terms?

Attribution is a procedural requirement.  It doesn't much affect what you 
can do with the work, just  what side tasks you need to carry out if you 
choose to do something with it.  Paragraph 1 of the GPL is also a 
procedural requirement: it requires copyright notices, disclaimer of 
warranty, and redistribution of the license itself.

NonCommercial is a use restriction.  It tells you a specific context in 
which you _cannot_ place the work.  The Hacktivismo license's prohibitions 
on using the work to violate human rights are also use  restrictions.  So 
is the prohibition in the CC Sampling/Recombo license on using the work in 
advertising.

NoDerivs and ShareAlike are both derivative restrictions.  They govern your 
ability to make derivative works.  The "transformative" requirement in the 
Sampling/Recombo license is also a derivative restriction: only certain 
derivatives are allowed.


These categories are obviously not pure: it's easy to blur the lines with a 
little effort.  But they really are independent axes along which one might 
impose rules, and Attribution-type procedural _requirements_ really 
shouldn't be completely conflated with NonCommercial-type use 
_restrictions_.  NonCommercial tells you that no, you can't go to the beach 
(though you can go to the park), even if you jump up and down and hold your 
breath.  Attribution tells you to go ahead and have fun at the beach, but 
to close the door behind you when you leave.


> Since the Derivatives of a CC-NC document "peter out", incompatibility
> issues are not a real issue. The issues never accumulate to the point
> where some massive, multi-author, multi-generational, work would ever
> get THIS >< close to being created, if it weren't for those pesky
> alphabet-soup incompatibility problems.

This argument depends on the assumption that the form of creativity 
involved is the sort for which some monetary compensation is eventually 
required as an incentive to create.  But if the _original_ author is 
creating for non-monetary reasons, then that's a strong indication that the 
type of creativity involved in downstream works may not be of the sort that 
requires monetary compensation either.  Indeed, such an author who chooses 
a CC-NC license isn't really reserving to herself anything "more" than she 
gives to downstream creators, since no one anywhere along the chain cares 
about the money.  With Creative Commons licenses there to eliminate the 
friction of licensing transaction costs, why couldn't such chains go on 
indefinitely?

Remember, also, that without a ShareAlike attribute in there, these chains 
can also eventually "escape" from the NonCommercial restriction.  When the 
chain has modified the work enough that it no longer counts as a copy of 
the original, the original author has no copyright claim against it, and so 
compliance with the original CC-NC license is no longer necessary for 
someone who wants to use the profoundly-modified downstream work.

Now, people along the way might choose to license _their_ modifications 
also under CC-NC.  Or they might not.  But that's their choice.

> The BSD advertising clause showed people in the open-source community
> how such "overhead" can accumulate to the point where it becomes
> almost as much work to derive a work with advertising clauses as it
> does to create a new work from scratch with no advertising restrictions.

"Appropriate to the medium" is a powerful phrase; it incorporates a 
sensitivity to the degree of onerousness of compliance with the attribution 
overhead.


> Yes, for gift economy licenses, incompatibility is a killer.
> but as soon as you slap NonCommercial on a work, you are no
> longer talking about a gift-economy license. you are talking
> about a market economy license.

I don't think you can separate licenses, or creators, into two camps quite 
that easily.  If these are the right categories for thinking about creative 
economies, then almost all creation, I think, draws on both models and is 
something of a mixture.


I am NOT a lawyer.  I do NOT speak for Creative Commons.

James