Development of Creative Commons licenses

[Gregor Hagedorn <g.m.hagedorn AT gmail.com>]

> that is being resisted but strong commercialism. So the use of a photo
> by a local community group in a publication from which they hope to
> raise a few quid is NOT the same as the use of the image by WALMART made
> into posters or greetings cards. Similarly a band playing a song in a
> club from which they get a cut of the door money is not the same as
> Toyota using the song in an advertisement.

Under CC BY-NC(-SA) it is.

There is no mentioning of profits, there is no quantification of
commercial advantage which may not be sought. Furthermore, commercial
advantages result from many uses where no money is gained (such as
free advertising brochures handed out by your legally organized local
community society). That is not alien to the license, it is intended
to protect the commercial interests of the copyright owner and
licensor.

The license does qualify the above with the concept of "primarily". So
a possible defense to use an NC-licensed work is that it is the only
fitting one (the best or absolutely no commercial alternative can be
bought). This does work in a few occasions (but the determination of
"best" would have to be obtained by a usually costly objective and
well documented method that can be upheld in court). Both the local
band and WALMART could otherwise claim that the music simply appeared
them to be most fitting for the occasion (the local club or the
supermarket) and that this is their primary intention in using the
NC-licensed work. But both WALMART and the local band can pay for
"expert judges" in a music competition, supervised by a lawyer, and
enter commercial and CC NC licensed music. Should the NC licensed
music win, they both can play it with impunity under the CC NC license
(oh yes, which one is more likely to do this?)

The present CC NC license is NOT what many on this list would like it to be.

> The NC
> license, however, gives an indication as to what the rules are, what is
> acceptable and what is not. It might not be precise, it might be a bit
> woolly in places and it may be a bit vague at times, but we have the
> ability to clear up such issues pretty quickly, and in doing so create
> new connections.

The license is neither wooly nor vague, it is a good and clear legal
text. What is wooly is that the Creative Commons labels and explains
the license with quite different words, such as "Non-commercial" and
"You may not use this work for commercial purposes" in the deed, while
at the same time being explicit that "This Deed itself has no legal
value".


> Commercial Rights is not what the NC Commons is about at all.

Such misconceptions about the legal functioning of the license are an
excellent argument to change the labeling of the present CC NC
licenses. And yes, if possible add a new license that fits these
conceptions and which legally works as expected for a sufficiently
free non-commercial commons. But that does not mean that artists
should not also have the option to license under the present NC->CRR
terms: they do allow a (very limited) re-use by private individuals.

Gregor