Development of Creative Commons licenses

[David Wiley <david.wiley AT gmail.com>]

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