Development of Creative Commons licenses

[Kat Walsh <kat AT creativecommons.org>]

During the 4.0 versioning process, we pledged to honor a long-standing
commitment to provide more information about the NC licenses.[1] The
legal team has written an information page:

https://wiki.creativecommons.org/NonCommercial_interpretation

While this page is currently public, it is open to additional revision and comment, particularly if there are important points missing or considerations we should address.

(If you are short on time, you have now read the most important part of
this email! If you would like more explanation and rationale, read on.)

1. About this document

We had published a first draft to staff only, which included examples
of NC and non-NC use cases--but after extensive feedback, we removed
them, because they created more questions than they resolved. Rather
than revising the examples to be indisputable, which is difficult when
individual situations may vary widely, we've emphasized principles and
considerations instead. (Some comments from our affiliates and others we asked for initial feedback led to additional clarifications.)

The considerations section is intended to be a practical guide to
points that potential licensors should be aware of before choosing the
NC license.

And though we know many people hoped for additional clarity here, we
are still steering clear of anything that appears to be clarifying the
definition. We've stated that the definition of NC is remaining
consistent across versions, with all of its gray areas, and are
avoiding additional text that would appear to change it; this document
is intended only to clarify the points on which consensus already
exists, not to change it.

2. Why this page now?

We chose to steward these licenses, not deprecate them, as a result of
a community and internal decision process made in parallel with the
4.0 process. General consensus is that we ought as steward provide
some support and education for how these licenses work even if we
recommend against their use for educational resources, scientific
publications, and similar.

We're aware of the discussions around the implementation of the
Collecting Society Directive in Europe, which mandates member states
implement legislation requiring collecting societies to allow their
members to license their works under "non commercial" terms.  We would
like to be sure national implementations are written broadly enough to
allow members to use our NC licenses as they stand.  In support of
that, it will be useful to be as clear as possible about what NC
allows and doesn't allow.

There are some principles enshrined in the definition and how the
licenses operate that are clear and not open for discussion--we need
to better articulate those lest misunderstandings fuel FUD or manifest
themselves adversely in court decisions and similar.  (E.g., the case
in Germany where a trial court concluded NC wasn't defined by our
licenses, resulting in a judge-made definition that is generally
considered a bad decision--currently on appeal.)

Our goals with this page are to alert would-be NC licensors about key
adoption considerations, in particular what NC doesn't enable, and
provide clarity on the fundamentals including how the licenses
operate. We'll be developing pages like this for the other license
elements subsequently (BY, SA, ND).

Thanks,
CC Legal

[1] See http://wiki.creativecommons.org/4.0/NonCommercial#Draft_2

--

Kat Walsh, Counsel, Creative Commons
IM/IRC/@/etc: mindspillage * phone: please email first
Help us support the commons: https://creativecommons.net/donate/
California Registered In-House Counsel #801759
CC does not and cannot give legal advice. If you need legal advice, please consult your attorney.