Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

there were some comments posted back around the time the NC  
guidelines were first posted to the list. i wanted to respond to some  
of those comments now that we are all refocusing on the guidelines in  
the hope that we can continue to fruitful discussion & develop a  
better & more robust version of the guidelines (hopeful that that is  
possible, of course).

below i've cited the poster, the date & given a link to their  
original post. then i've copied the relevant part of their message  
that i am responding to & at -> i've included my comments.

let me know your thoughts.

***

#Drew Roberts - Jan. 10, 2006
https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-January/003126.html

Could you point out language in the legal code which explains the  
restrictions
on the nature of the user?

-> there isn't any - this is what the guidelines are for....

Also, under A. I would like to see some mention of an otherwise  
commercial who
agrees to be a "host" at the request of a non-commercial user.

For instance, I want to spread CC works and aks local business to  
allow me to
place a computer with CC works on it and a CD burner in it in their
establishment along with posters promoting the CC. Can they host it  
for me?

-> isn't this taken care of by C?

In C. (2) could you explain a course pack and how that would differ from
charging for the cost of media?

->  it differs because it is only permitted for educational  
institutions or service providers who are charging for the service,
not for the value of the NC-licensed content.

Could you supply some real word examples of  D. (1) (c) to clarify this?

-> in my mind, a good example of this is where there is an NC- 
licensed image is included in a coffee table book where the image is  
used on one page of a multiple page book where that image is not the  
essence of the book (eg. the cover or back image or otherwise  
prominent) and the book is sold in bookstores

I would have thought that D. (1) (d) would have been considered  
commercial and
I find it interesting that it is not. Does this mean NC works are not a
problem for buskers?

-> based on our internal survey results, it was considered that the  
optional nature of the contribution meant that it was not commercial.  
Also the consensus was that sites like the Internet Archive and blogs  
that do have tip jars should be allowed to use NC-licensed works.  
After all, CC is about spreading the use & dissemination of works.

Just for clarity in E. (1) (a), is the SA condition mentioned one on the
original work, or one put un the derivative by the maker of the  
derivative?

-> this SA condition is the one that applies to derivative works, see  
"E. Conditions on Use: Derivative Works"

So, in E. (1) (b) (ii), if I were to include a verse from an NC song  
in my
BY-SA novel and sell my novel on lulu.com, I would be OK?

-> provided that the entire novel was not based on the NC song & the  
song was not a prominent theme of the book, yes.

And again, E. (1) (b) (iii) I find surprising as a non-commercial  
use. Not
that I am complaining, I am just surprised.

-> see above re: consensus on voluntary contributions.

#Jonathan Blake Jan 11, 2006
https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-January/003134.html

Is there a discussion somewhere on why "religious organizations" would
not qualify s legitimate NC users?

-> no. given the US definition of a not for profit org excludes  
political organizations, the thinking was that there are three things  
one should
not talk about in polite society - politics & religion being two of  
them. if the community believes that either or both political nonprofits
& religious nonprofits should be able to use NC-licensed works, then  
let's change the guidelines to reflect this.

Somewhere in that document should be a mention of when it is
acceptable for a business entity to use an NC work.

Two examples from the wiki demonstrate why I think that should be  
included:
    *  Company Y makes 200 paper copies of a by-nc 2.0 programming
language manual and distributes it to all engineers in the company.
[no? Is this distribution?]
    * Company Y keeps one copy of a by-nc 2.0 programming language
manual in its company library. Engineers can use the manual for
reference. [yes? Is this distribution?]

-> under the guidelines a for profit company would not be able to  
make use of an NC-licensed work
although in the second instance they may be able to by virtue of the  
first sale doctrine (which means they
could buy a second hand copy) & by virtue of the fact that reading a  
book does not exercise a copyright right.

I suspect that a licence that out-right prohibits organizations other
than non-profits from using covered material, will be ruled invalid.

-> why?

Under the current interpretation, any government usage of material
with a NC licence is prohibited.

-> good point. how should we deal with this?

Likewise, a corporation sole is prohibited from using the material. [
They have one or two alternatives to  501 3 (c) registration with the
IRS. (And yes, I know that the number of entities that incorporated as
corporation sole is minuscule. It is legitimately used by religious
organizations, and government agencies.)]

-> ok, should we include corporations sole in the list of allowable  
NC users?

I think that covers the range of potential users.

> However, we have attempted to craft these guidelines to resolve  
some of the more common and pressing questions about what is and what  
is not a noncommercial use in the CC world.

E. (1) (b) (iii)
The escape clause here would permit an organization to "sell" the NC
material, by offering it as a premium for contributing a certain
amount. The question is "at what point does offering a premium
constitute selling?"

-> no it wouldn't. it has to be optional. optional does not mean  
optional unless you want to obtain
the next class of service - then it becomes conditional.

##

Something else not addressed is when a commercial entity creates, and
then distributes material that has an NC licence.

-> as a licensor, a commercial entity is free to choose the license  
it wishes.

# Stefan Tiedje Jan 29, 2006
https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-January/003164.html

There is no waterproof way to find out what the copyright holder
intended to prevent unless you ask her if you are in doubt!

-> this is why we are planning to implement these by taking surveys  
of the community
of licensor adopters (so the guidelines properly reflect their  
understanding) and why we
are planning to include these as part of the licensing framework

The nc license does not cover the commercial use. But
anybody could point to that document regarding what commercial use could
include or exclude.
The draft is very much aimed at the U.S. (For Germany it would look
different)

-> why would the draft for Germany look different? we circulated  
these on the
icommons list (which consists of the CC international collaboration  
partners
and no one indicated that there would be differences based on  
countries but if you
think there would be, it would be useful to understand why.

I would encourage any nc user to explain by simple words what kind of
use is allowed and what the copyright holder thinks is a violation.
Either by just taking that draft or modifying it or writing an own one.
But always just ask if you are in doubt! Because thats I think anyway
the main point in choosing nc.

-> this makes CC's objective of encouraging and enabling reuse very  
complicated
if not impossible because then NC becomes what the individual  
licensor thinks it is.
then nothing NC-licensed may be capable of being mixed together.