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  • From: Paul Keller <pk AT kl.nl>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Will CC 4.0 Make NC Clause Problems Worse?
  • Date: Sun, 13 May 2012 10:45:46 +0200

hi all,
i would like to contribute another perspective to this (and the other NC
related) discussion(s) which i have been following on this list but also as
being Public Lead for CC Netherlands since 2005 where the question of how to
define NC uses is one of the most frequently encountered ones. Over the years
these questions and the discussions on this and other list have actually
brought me to the conclusion that the current definition of NC use in the
licenses it the best possible definition that we can have and as a result it
should not be changed or modified at all (never fix a running system as they
say).

I am saying this from the perspective of someone reprseneting CC
(Netherlands) and not from the perspective of a user. This is an important
distinction because almost all the arguments on this list and elsewhere
involve users who argue to make their specific interpretation the default
one. What does seem to make sense from a number of specific perspectives
would be a very dangerous and foolish move from the perspective of the
overall system. It will make some specific groups of users more comfortable
but it will certainly alienate others. The one thing that we know for sure
(from the NC study from a couple of years back) is that there is no agreement
among users of the CC licenses as to what constitutes commercial use of a
licensed work.

The beauty of the current definition of non-commercial is that it is
acceptable for a very large number of users. It is sufficiently vague to
accommodate users with diverging views on what constitutes non-commercial use
(as illustrated by David and many others on the lists) while functioning
reasonably well. Yes, it creates a lot of questions by first time users
(which in my experience is a good thing since that gets them into discussions
about what they want to achieve and quite frequently lets them arrive at the
conclusion that they should not use NC) and yes, it creates a lot of
discussion on this list (which let's face it is not a good representation of
the users base).

On the other hand the current NC provision has not created any major problems
in the wild. Given the intensity of the discussions here one would expect
that there are frequent conflicts between licensors and licensees of NC
licensed material but that is simply not the case. Yes, there may be some who
decide against licensing something under NC because they do not like the
definition, and there are some who refrain from using NC material because
they believe that the definition insufficiently covers the intended use, but
this will always be the case. Changing the NC definition carries the risk
that we will alienate substantial existing user groups which is something
that we should absolutely avoid. It is also worth noting that where there
have been actual conflicts (like in the Adam Curry case the NC provision has
worked as intended (see: http://creativecommons.org/weblog/entry/5823)

Given this i have come to the conclusion that the definition of commercial
use as it exists today is remarkably robust and probably very close to the
best possible definition (and as such the original drafters of the licenses
must be complimented with their wise choice of language). Given this i think
that the best thing that we can do is to leave the current wording intact.
Given that it has been around for 10 years and has not created any real world
problems we should conclude that the definition is not broken and that there
is no need to fix it (or even tinker with it).

Or to answer Davids question. we can be pretty sure that 4.0 will not make NC
clause problems worse as long as we do not change the definition (and yes we
should also keep language similar in function to the current Section 8
Subsection e) /paul



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