As part of a study of how people understand the term "noncommercial use," Creative Commons CEO Joi Ito is conducting a poll linked to from his blog.
It's certainly a problematic restriction, as things stand. Unfortunately, Creative Commons appears to be going down the path of merely defining it more crisply when, in my view, the better approach would be simply to eliminate it entirely.
First, a little background. Creative Commons licenses are a sort of counterpart to open-source software licenses that is intended to apply to things like books, videos, photographs, and so forth. There are a variety of Creative Commons licenses worldwide (e.g. these are the choices offered on Flickr), but for our purposes here, one important distinction is between the licenses that allow commercial use and those that do not.
A noncommercial license means: "You let others copy, distribute, display, and perform your work--and derivative works based upon it--but for noncommercial purposes only."
The problem Creative Commons is trying to solve is that noncommercial turns out not to be easily defined. I've discussed this issue in more detail previously, but essentially, we operate in a world where opportunities to "microcommercialize" through Google AdSense and self-published books abound. So drawing a line--especially one that the content creator and the content user can agree on without too much thought--is hard.
See this comment from an earlier post, for example. ("Commercial" is a particularly confusing term, with respect to photography, where it refers to uses that aren't primarily editorial or artistic, and involves requirements for model releases and the like--which is only incidentally related to commercial use, as Creative Commons uses the term.)
It's not hard to see how we came to have such a noncommercial-use clause. There's a certain visceral appeal to saying, "I'll share my creative works with the world, and anyone can use them for free, so long as they credit me and don't make money off them. If they do make money, I want my cut or have the right to prohibit use."
As I say, appealing. Also not very workable or useful. A lot of truly personal and noncommercial uses are already either likely covered under Fair Use or are trivial. (Does it really matter which license the photo you downloaded to use as desktop wallpaper for your computer uses?) And prudent companies will ensure that all rights are in order by contacting the content owner directly, no matter what the license says.
I find it notable that no major open-source software license contains restrictions about who may use the software. Different licenses have more or fewer requirements about the circumstances under which you must contribute code enhancements back to the community or on actions you can't take (for example, related to patents) if you wish to retain your license. But they don't differentiate between whether you're a Fortune 500 corporation, a school, or just an individual playing around for fun.
If open-source licenses did routinely have clauses governing who could and couldn't use software, I think that it's fair to say that open-source would have had a much smaller impact on the world than it has.
As I've argued previously, by contrast, Creative Commons licensing offers up a complicated set of options that seem calculated to encourage people to contribute works to the commons while not pushing their envelope to allow any uses that they might consider "unfair" in some way. The result is a system that is far too complicated and that doesn't offer any real benefit beyond a simple license that requires 1.) attribution and 2.) downstream derivatives to maintain the same license.
Complexity, ambiguity, and lack of awareness are the issues with Creative Commons. Tweaking the signage associated with the overly complicated smorgasbord of options doesn't address any of those things.
As readers of this blog know, two of my interests are photography and open source, so I'm naturally particularly interested in the way the two intersect with each other. As a result, I've been doing a fair bit of reading and thinking about the Creative Commons license in the context of photos and, more broadly, how photos are best protected and shared in an online world. I don't claim to have all the answers, but I wanted to share some threads that I've been researching and pondering.
As I first discussed in a post back in November, the Noncommercial condition in some Creative Commons licenses needs to be clarified. The problem is that noncommercial, in the sense of not associated with making money, is such a vague term in an online world where Google AdSense and other forms of advertising are ubiquitous and so many Web sites and blogs represent some ambiguous intersection of the personal and professional. The Creative Commons organization apparently recognizes that there are issues. On their site, they state that: "In early 2008 we will be re-engaging that discussion and will be undertaking a serious study of the NonCommercial term which will result in changes to our licenses and/or explanations around them."
I can't say that the guidelines in process really clear things up a lot. They seem to pay a lot of attention to US-centric technical distinctions related to what constitutes a nonprofit organization (IRS 501(c)(3)). Many very large and well-funded organizations, such as the National Rifle Association and the Sierra Club, are non-profits. On the other hand, the draft guidelines seem to suggest that some money-making uses are OK so long as it's just an "individual."
With respect to photography specifically, "Commercial" and "Noncommercial" are particularly confusing terms because commercial already has a fairly specific meaning in the context of photography. It mostly applies to photographs used for advertising and marketing purposes--as opposed to editorial or artistic uses. It's an important distinction within photography because commercial photographs typically require things like model releases from subjects whereas other types of photographs do not.
Thus, it seems to me that a Creative Commons definition that focused more on the type of use rather than the type of user could help to clarify things. A Noncommercial license could, for example, prohibit uses that relate to marketing, advertising, and other such uses. It might also prohibit the direct resale of the photo (as, for example, stock sites do).
But, you cry, a magazine like The Economist shouldn't be able to use a Noncommercial image either--even for editorial purposes.
That's not an irrational position but I'd argue that if Noncommercial is defined to read "not associated with making money," you're effectively prohibiting the vast bulk of uses that aren't already covered under Fair Use (use in academic environment), are trivial (I make a print to hang on my wall at home), or both. Sure, you can have such a license, but why bother? Some personal blogs and MySpace pages might gain access to some photos under such a license but it's a pretty small slice of the possible uses. If you truly don't want anyone to (legally) profit from your photographs however indirectly, there's a simple option: Don't release them under Creative Commons.
Have I convinced you that the above would be a reasonable approach to a Noncommercial Creative Commons license?
If so, I hope you won't be too upset at me for burying my real lede. Because if the above is a reasonable Noncommercial CC license--and I think it is--then we don't need it. And that's actually a good thing because if you take a good look at the Creative Commons license summary page, it's clearly something that only a license geek could love and is far too complex in its Chinese menu approach to be widely understood and accepted.
Let's start with why we don't need the Noncommercial license. One justification for having a Noncommercial is that you don't want your photos used in some big advertising campaign or in a company's annual report without compensation. However, in fact, photographs licensed under Creative Commons licenses of any sort aren't a good fit for commercial photography anyway.
One problem is that they haven't cleared model and property rights as Virgin Mobile Australia discovered. The attribution requirement would be problematic for many other types of uses. (I can't imagine the typical marketing presentation that I see consistently incorporating appropriate bylines as it passes through dozens of hands and revisions.) Dan Heller discusses even more serious problems in this post. I'm not sure I buy into everything Dan writes, but he raises a lot of good issues that, while not limited to commercial photography, are probably most pertinent there.
As for reselling photos licensed under Creative Commons? That seems far better controlled by limiting access to original high-resolution images than it does license terms.
I could also make a variety of arguments against having separate licenses that allow or prohibit changes to an artistic work.
At the risk of oversimplifying, open-source software licenses are mostly concerned with the degree to which derivative works have to be given to the commons. With rare and narrow exceptions, they don't get into who is using the software or the manner in which the code can be changed or extended. That may seem perfectly normal, but that's only because we're so used to it. One can easily imagine an open-source license that says some piece of software can only be used and modified in an academic setting. That such licenses are rare to nonexistent is a large part of why open-source software has become so commonplace.
By contrast, Creative Commons licensing offers up a complicated set of options that seem calculated to encourage people to contribute works to the commons while not pushing their envelope to allow any uses with which they're uncomfortable. While an understandable approach, it creates a system that's far too complicated and doesn't, in my opinion, have any real benefit beyond a simple license that requires attribution and which requires downstream derivatives to maintain the same license.
No one is forcing anyone to put their work into the public commons. But, once you do, you need to accept that you no longer can wholly control how it is used. The open-source software world understands this to its benefit. Now, open-content needs to do the same. The current regime is far too complex to implement and communicate.
A few days back, I posted about the difficulty of distinguishing commercial from noncommercial usage with respect to the Creative Commons license.
There's an ongoing legal case that concerns another aspect of Creative Commons commerciality. As Josh Wolf describes the original story:
On April 21, 2007, during a church camp, Chang's counselor snapped a photo of her and uploaded it to his Flickr account. He published the photo under a CC-BY-2.0 license, which allows for commercial use of the photo without obtaining permission from the copyright owner.
In less than two months, the photo had been cropped and repurposed to promote Virgin Mobile in Australia.
Upon learning of the ad, Chang wrote on a Flickr page, "hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken." Underneath Chang's comment, there is a note from the original photographer: "where was this? do you think virgin mobile will give me stuff?"
It's unclear whether Virgin coughed up any loot, but Chang's family has taken legal action against the company for not obtaining proper permission for the use of her likeness.
The basic legal problem here is that, although the photographer gave his permission for Virgin Mobile Australia (or anyone else) to use the photograph for commercial purposes (with attribution), that doesn't mean that all the rights were cleared to use the photo in an advertisement. A stock photo--which is essentially how Virgin Mobile Australia was using the image--typically requires model releases from any identifiable person. Releases may also be needed for photographed property under some circumstances. Identifiable trademarks and the like can also be an issue.
It seems a rather fundamental error on Virgin Mobile Australia's (and even more so their ad agency's part). I guess they just assumed that the Creative Commons photo was like an ordinary stock photo where someone had taken care of clearing all the rights.
But as Larry Lessig says--with the dropping of Creative Commons itself from the suit:
As I said when I announced the lawsuit here, the fact that the laws of the United States don't make us liable for the misuse in this context doesn't mean that we're not working extremely hard to make sure misuse doesn't happen. It is always a problem (even if not a legal problem) when someone doesn't understand what our licenses do, or how they work.
The intent of Creative Commons is that the photographer (I'll stick to photography here) can give his permission for commercial, or noncommercial, entities to use his or her work without compensation. It is not, however, intended to be a representation that all the commercial rights to use the photograph in any context have been cleared. In fact, with Creative Commons licenses that permit modification of the final work it's hard to see how it would even be possible to certify in advance that any possible use was permitted under all laws anywhere in the world. And even stock sites place a variety of restrictions on the final use.
This seemed a fairly obvious point to me. But as I read stories and comments in this case, it seems that a lot of people assume that licensing a photo for commercial use under Creative Commons is, in fact, warranting it as unconditionally appropriate for commercial use rather than merely giving a narrower set of permissions strictly from the photographer's perspective.
Back when I was writing software for PCs, it was pretty common to see licenses offering some program free "for noncommercial use" or some similar wording. The basic idea was that if you got people using some application at home, maybe they'd want to use it at work too--and then they'd buy a commercial license. Besides, very few of those home users were about to send you a check anyway. It's a little bit like using an open-source business model to build volume and awareness with free, unsupported software and then make money from support contracts when a company wants to put the software into production.
There's a difference though.
No widely used open-source software license that I know of makes a distinction about how the software is going to be used. Rather, open-source licenses concern themselves with essentially technical details about how code is combined with other code and what the resulting obligations are with respect to making code changes and enhancements available to the community. But none of the major open-source software licenses restrict use to schools or personal PCs or anything like that. ... Read more
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