Development of Creative Commons licenses

[Kuno Woudt <kuno AT frob.nl>]

Hello Heather,

On 12/11/2012 06:56 PM, Heather Morrison wrote:
> Noncommercial is not optimal either. However, from a language
> perspective it is better than "commercial rights reserved" because it
> gives the creator an opportunity to say that "this is outside of the
> commercial realm". Things that are outside of the commercial realm
> can be brought into it - however for some of us, expanding the
> portion of the world that is outside of commerce is a very important
> statement, and it's fine if it is vague.

But choosing the "NonCommercial" license is NOT an effective statement 
of something being "outside the commercial realm".

Some examples:

Music on Jamendo commonly published under a Creative Commons 
NonCommercial license, take a look at aXXo [1] for example.  When you 
click "Download", you see this music is published under "Creative 
Commons : Attribution-Noncommercial-No Derivative Works 3.0" -- but this 
is obviously inside the commercial realm because Jamendo has "License 
this music" and "For professional use, get a license at Jamendo PRO" 
buttons all over the site.

Similarly, music published on magnatune.com is licensed [2] under 
by-nc-sa 1.0, but you can pay a monthly fee to magnatune.com for 
commercial usage.

There are even examples where you have to pay money just to get the 
work, the author does not offer free downloads.  Though when you 
purchase a copy and download it, the copy you've received is licensed to 
you under CC BY-NC-ND.  [3] [4].

[1] http://www.jamendo.com/en/track/661414/axxo
[2] http://magnatune.com/info/licensing (see bottom of page)
[3] http://theenigmatng.bandcamp.com/album/galactronic
[4] http://dvsrecords.bandcamp.com/album/some-wasted-years


Looking at it from the other direction -- As a software developer I am 
familiar with a lot of free and open source software.  A lot of that 
software is created and used "outside of the commercial realm", but none 
of the commonly used free software licenses have a NonCommercial label 
or clause, or anything equivalent.


So, in summary:

1.  The current NC licenses are often used for commercial reasons, to be 
able to sell separate licenses for commercial use.  The creative works 
licensed in such a way seem to be clearly "inside the commercial realm".

2. There is a large collection of creative works out there, which is 
"outside the commercial realm", but uses free culture or free software 
licenses without an NC clause or label.


From that I conclude that using a "NonCommercial" license is NOT an 
effective way to make a statement that the work is "outside the 
commercial realm".  It also does not seem necessary to use an NC license 
to foster a large commons of creative works which are created and 
enjoyed "outside the commercial realm".

If you want to make the statement that a creative work is or should be 
outside the commercial realm, I think you should do so separately from 
the copyright license.  The copyright license is not an effective way to 
make such a statement.

-- Kuno.