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cc-nz - [Cc-nz] Stallman on the orphan-multiplier effect of NC licenses

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  • From: Danyl Strype <strypey AT disintermedia.net.nz>
  • To: Creative Commons Aotearoa New Zealand discussion <cc-nz AT lists.ibiblio.org>
  • Subject: [Cc-nz] Stallman on the orphan-multiplier effect of NC licenses
  • Date: Sun, 27 Jan 2013 04:11:13 +1300

Kia ora koutou

Just stumbled across an interesting claim by Richard Stallman about
the use of CC licenses which include the NonCommercial clause
(CC-BY-NC and CC-BY-NC-SA).

>> The problem arises because, with the Internet, people can easily (and
>> lawfully) pile one noncommercial modification on another. Over decades
>> this will result in works with contributions from hundreds or even
>> thousands of people.

What happens if you would like to use one of those works commercially?
How could you get permission? You'd have to ask all the substantial
copyright holders. Some of them might have contributed years before
and be impossible to find. Some might have contributed decades before,
and might well be dead, but their copyrights won't have died with
them. You'd have to find and ask their heirs, supposing it is possible
to identify those. In general, it will be impossible to clear
copyright on the works that these licenses invite people to make.

This is a form of the well-known "orphan works" problem, except
exponentially worse; when combining works that had many contributors,
the resulting work can be orphaned many times over before it is born.
<<
http://stallman.org/articles/online-education.html

If this is true, it's definitely an issue which needs addressing
because of the popularity of the NC clause with many people who
contribute to Open Educational Resources (OER). Either creators of OER
need to stop using the NC clause (even though some are very attached
to it), or this aspect of NC licensing needs fixing.

My first thought was that one way to fix this could be to give the
creator of the original the right to give permission for commercial
use of all downstream remixes, as well as the right to be acknowledged
as the originator, which would be necessary for this to be useful.
Then it occurred to me to wonder if the creator of a remix of an NC
work has any commercial rights to their remix in the first place?
Obviously they have no commercial rights to any part of the original.
But do they hold the commercial rights to any novel parts they have
added (or any re-ordering of parts of the original), or does the
effect of the NC clause propagate to derivative work, reserving
commercial rights to them in the hands of the original creator anyway?
Is Stallman wrong that this is a problem? It would be good to get some
clarification on this.

In the bigger picture, I think the best way to manage the copyright of
large bodies of CC-licensed OER is the same way they are managed in
large free code projects like LibreOffice and Mozilla, through
Copyright Assignment Agreements which make a non-profit institution
the steward (and where necessary, enforcer, or granter of extra
permissions) of the conditions of the license used. Since most
teachers work for or with an educational institution anyway, one
option is for those institutions to become the copyright steward of
any OER projects their staff initiate. The status and reputation they
gain from this could be seen as a way of offsetting any perceived loss
of monopoly opportunities. Another option is for the copyright to be
vested in an independent body like the OER Foundation.

Another potential benefit of this is that the steward could be charged
with standardizing a process to make sure that improvements made to
their OER suites propagate successfully to all derivative works (where
these are allowed), or even just to those using the suite in active
teaching. I'd be interested to know what people think of this idea.

Ma te wā
Strypey

--
Danyl Strype
Community Developer
Disintermedia.net.nz/strype

"Geeks are those who partake in our culture."
- .ISOcrates

"Uncomfortable alliances are not just necessary; they reflect and
speak to the tremendous possibility of our political moment."
- Harmony Goldberg and Joshua Kahn Russell
http://www.nationofchange.org/new-radical-alliances-new-era-1337004193

"Both Marxists and Chicago-school libertarian economists can agree
that free software is the best model."
- Keith C Curtis
http://keithcu.com/wordpress/?page_id=407




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