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cc-licenses - Re: [cc-licenses] Yet more on NC

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Subject: Development of Creative Commons licenses

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  • From: Henri Sivonen <hsivonen AT iki.fi>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Yet more on NC
  • Date: Tue, 17 Oct 2006 11:57:25 +0300

On Oct 12, 2006, at 18:57, Discussion on the Creative Commons license drafts wrote:

Henri wrote:

I don't really know the details, but my understanding has been that
the KJV is in the Public Domain outside the U.K. (at least outside

Pre-WIPO, that would have been the case. Post-WIPO, there is an
obligation on the part of each signatory to honour the copyright on
publications in the other signatories. Whether or not the Crown will
seek to enforce its copyright outside of the British Commonwealth is a
currently unanswerable question.

I had thought that WIPO requires members to grant the same level of copyright monopoly to foreign copyright holders as they grant to domestic ones (Berne Convention article 5 paragraph 1). That is, if a country has a life plus 70 rule, it has to apply at least life plus 70 to the KJV (but life plus 70 puts the KJV in the Public Domain).

To me, it seems that NC is such a lost opportunity for Free Culture (as in Free Software)
that it is a shame if CC-by-sa isn't even tried first.

CC-BY-NC-SA is perceptually less scarier that CC-BY-SA.

In knee-jerk perception, yes. However, people who understand the domain through experience with Free Software tend to view CC-by-nc-sa as scarier than CC-by-sa.

The Red Cross can use it in a course, but the Salvation Army can not use it, even if teaching the
same course, using the same instructor.]
This should ring major alarm bells that NC is a bug in CC!

People are learning what a commons is.

By creating NC, CC itself is making the learning phase hard. Besides, we might not get out of the learning phase unless CC has the guts to say to its NC "institutional partners" that NC was a mistake and needs to be deprecated and rebranded so that it doesn't enjoy the same brand image as the licenses without NC.

I find it strange that MIT is pushing NC and all the ambiguity it
For MIT, NC makes perfect sense.
It doesn't. They don't get the network benefits from combining their
works and Free as in Free Software copylefted works produced by others.

I didn't think of it yesterday, but "Moral Rights" is probably more of
an issue with them, that Collaborative Rights. ND covers Moral Rights
better than NC, though. OTOH, brand name/image isn't covered by ND, but
is by NC.

MIT is itself in Massachusetts, U.S.--not in France or somesuch Moral Rights place. They may want to implement Moral Rights to please their author without a statutory obligation to do so, though.

Moral Rights is never a proper argument in favor of NC. (It is an argument in favor of ND, though.) In jurisdictions that recognize Moral Rights, the whole point having something called "Moral Rights" is that it is something other than the "economic rights". Therefore, by definition, NC doesn't deal with the moral axis of copyright but with the economic axis.

(Of course, the whole concept of Moral Rights turns out to be largely bunk if you can demonstrate that authors are willing to bend their artistic integrity in exchange for money. For example, in Finland the leadership of a collective music licensing organization has said that they "sell music like sausage": money talks and artistic integrity walks. Also, all the Finnish Supreme Court cases that my Moral Rights- related search terms turned up were really about the money and had Moral Rights violation thrown in an extra accusation.)

How does ND not cover brand/image but NC does? With ND, you can't change the work, so whatever brand image the work conveys stays that way. The only thing you can do is to put the work in an unfavorable context. With NC, there's a greater risk to the reputation of the original author, because others can distort the work itself even if they don't do it commercially.

I am aware of three Moral Rights:
1) The right to be known as the author of the work.
2) The right of not having one's work distorted or put in a context so that the artistic integrity of the work is violated.
3) The right of the author to visit unique works of art (paintings or sculptures) (s)he has created to study them later.

#3 is obviously inapplicable to literary works or any kind of digital works.

Personally, I think in #2 the artistic integrity of the *works* is mostly bunk (see above). However, I do think that harming the reputation of the *author* (as opposed to defiling the work) is a real issue. Paradoxically, #1 is about making it possible for the author to gain positive reputation, but the easiest way to avoid bad reputation for the author would be to publish anonymously and to forbid the revelation of the identity of the author.

So the question that remains is can modification of the work be allowed at all (commercially or not) without everyone whose input the result contains reviewing the result to see if they think it is harmful to their reputation. If the answer is "No", NC does not help. However, I believe the answer can be "Yes" if the derivative works are marked as derivative versions that weren't published by the original author. The problem there is that CC wants to keep CC-by-sa relatively simple and if you look at the GSFDL draft for the measures of protecting the reputation of the original author while still allowing derivative works without case-by-case permissions, the choreography is rather detailed. But that's still not an argument for NC, because NC doesn't protect reputation any more than the CC licenses without NC.

Something that addresses the specific needs and concerns of those
organizations.
That would make the situation only worse by putting CC deeper into
the non-free boutique license quagmire instead of repositioning CC as

CC is trying to offer licences that are:
* gratis ( NC-SA / NC-ND )

They aren't gratis for everyone.

* libre ( SA )
* gratis and libre ( BY-SA / BY-NC-SA / Developing Nations )

BY-NC-SA and Developing Nations are not libre and BY-SA does not need to be gratis.

I'm not sure how the Sampling licence fits into that mix. [This is a
licence selected by default, and not because it is the best for the
proposed use.]

By "selected by default" do you mean "selected because of its name without reading it"?

--
Henri Sivonen
hsivonen AT iki.fi
http://hsivonen.iki.fi/






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