Development of Creative Commons licenses

[Heather Morrison <hgmorris AT sfu.ca>]

A few thoughts towards the version 4.0 discussions, focusing on noncommercial:

Noncommercial, to me, is NOT the most restrictive of the CC license elements, 
except in a technical sense. This is because noncommercial - the public 
sphere - is the very essence of the commons. As a long-term open access 
advocate, my considered opinion is that the strongest license for open access 
to scholarly works is CC-BY-NC-SA, as this is the license that most protects 
open access downstream.  As we move towards the development of a global 
commons, we need to keep in mind the society that we live in at present. The 
kind of license that may be ideal in the society many of us are striving for 
can be a danger to the commons in the interim. For that matter, in a society 
where sharing is the default, we should question whether licenses will still 
be necessary. Even at present, while CC licenses are most helpful in an open 
access context, I would argue that licensing should not be necessary; what is 
more important for the longer term is developing and articulating a culture 
of sharing. CC licenses is only one of many approaches.

I understand that there is some genuine confusion about what constitutes 
commercial use, and that this may differ by region. For this reason, it may 
be helpful to further refine the license terms, and perhaps include two 
different types of noncommercial. Some thoughts towards this end:

-       Is selling the actual contenthe common element understood by anyone 
who uses noncommercial? If so, is this clearly spelled out in the NC license? 

-       Education - learning and teaching - should not be considered 
commercial. Here is a post with my attempt to articulate this:
http://poeticeconomics.blogspot.com/2011/12/education-is-public-good-not-commercial.html

-       Providing commercial services that support education is a genuine 
gray area, and one where there may be good reason to have two different 
licenses. Organizations that rely to some extent on print-on-demand services 
should be able to say no to this, while many creators who have no interest in 
bothering with this might want to say sure, go ahead. I strongly advocate for 
understanding the need for creators to make a living, and including those who 
share as much as they can while reserving some rights so that they can make a 
living in the commons. For this reason, I do not support efforts to remove 
those who choose noncommercial from CC.

-       Advertising is another gray area. Here, I am wondering whether a key 
issue is not so much advertising per se, as the extent, and whether 
reciprocal services are offered. For example, an internet search service that 
leads users to CC licensed content and in the process uses very limited 
amounts of content is a very different situation from a commercial outfit 
creating a mirror site of a whole journal, publishers' offerings, or 
scholar's blog, and selling advertising on the mirror site, or a 
pharmaceutical company printing off thousands of reprints for their 
salespeople to take to doctors' offices. In the former case, I wonder if 
there are fair use / fair dealing arguments, at least in some jurisdictions. 
If not, would this give the corporate sector reason to argue for fair use / 
fair dealing exemptions? In the latter case, I think many creators do 
actually wish to prevent such commercial use, which may impact the moral 
integrity of the creator as well as potential economic impact.

Many thanks to CC for great work advancing the commons over the past few 
years, and for the opportunity to participate in discussions towards the next 
round.

Heather Morrison, MLIS
Doctoral Candidate, Simon Fraser University School of Communication
http://pages.cmns.sfu.ca/heather-morrison/
The Imaginary Journal of Poetic Economics
http://poeticeconomics.blogspot.com