I want to take a moment to discuss Creative Commons, and their licenses.  First, an abbreviated explanation of the licenses in layman’s terms.

The Licenses

A Creative Commons License or Deed is designed to supplement, and not replace, Copyright.  The idea is that by choosing a Creative Commons License you (the author) assign certain rights and/or conditions to the “Domain” or society at large.  Those rights / conditions are generally listed as follows:

• BY: an attribution clause.  The means that any use of the work that is being published must be attributed to the original author of the piece.  This is one of the items I have specified for all the items published on the Cerebral Rift.
• SA: Share alike.  You can copy and creative derivative works based on the original, but you must share those works under a similar license.
• NC: Non-commercial.  You can use, perform, creative derivative works, etc. as long as you do it for non-commercial purposes.
• ND: No derivatives.  You can use, and perform this work, but you are not allowed to create derivatives (new works that incorporate portions of the original work) of the work.

While authors electing to publish their works under a Creative Commons license can chose any of the above licenses, they are not restricted to the single licenses above.  They can chose to combine the licenses to create a compound license that modifies the terms in an appropriate  manner.  For example, a common deed is BY-SA which stipulates that the original author must be maintained, and any derivative works must be published under a similar license.

These explanations are greatly simplified.  I’ve linked to the Deeds for the licenses above so you can get a bit more detail.  of course, if you want, you can go to Creative Commons and read all the legal-ease and nitty-gritty for yourself.  However, the amount of information is sufficient for the talking points that make up the remainder of this article.

Non-Commercial Issue

There is an underly issue that comes about when considering the usage of the NC (Non-Commercial) clause.  It appears (although I am not a lawyer) that by choosing this clause, the definition of  “Non-Commercial” has been left undefined.  If I understand how things would work in this situation, it would fall to the underlying Copyright code to define what “Non-Commercial” usage is.

While this is appropriate for maintaining compatibility with global Copyright laws, this opens up a problem for adoption in the community.  I don’t think I can understand the Copyright code, and I don’t expect that many authors could understand it either.  The problem with this is: there are some uses that an author might not object to, but since this clause doesn’t help clarify these types of uses it ends up restricting how the material is used.

For example: I think many authors would be fine with a piece of their music being used in a podcast.  For example, I know several music podcasts that routinely look specifically for Creative Commons licensed works because they want to avoid conflicts with copyright issues.  Wether or not a podcast decides to use a piece that has this Deed applied to it seems to vary wildly.

Another case is public performance. I can see where the author might want to restrict their pieces from being performed publicly say on a radio station, where there is advertising money involved, and thus a form of commercial profiteering based on the performance building an audience.

However, consider this: is it a non-commercial performance to play the material in a restaurant, cafe or coffee house?  Typically the owners of this type of establishment have background music to keep the mood of the establishment pleasant.  Does this directly affect their sales?  Does this fit into the commercial use that this Deed is designed to protect against?

I highly doubt it, and I would suggest that many authors feel the same… Especially if they believe that they will get greater exposure for their works.  Yet, if you ask BMI or a similar institution, they do feel that it is.  (I’ve known of cases, first hand, where BMI has told establishments that they cannot play CD’s or other recordings without paying them for the privilege.)

And now, a new industry, riding on the back of the Creative Commons Deeds seems to be arising where a couple of the larger sites are trying to build a profit scheme based on selling commercialized service based on this situation (ie, selling streaming music to coffee houses, restaurants, etc.)  While I applaud these companies for providing a service that will monetarily benefit the artists that become part of the service, I do question how the decisions are being made for the materials to be included, and if this kind of service is going to influence the choice of  license adopted by the authors.

No Derivatives Issue

The original basis for the Copyright law was based in resolving the issue of a work being literally copied.  It was not unusual for a book that was successful under one publisher, to suddenly have other editions published by a different company (typically from a different country).  This practice dissolved the revenue stream that the artist derived from the original publisher.

As a result, a term of 14 years, with one 7 year extension was granted to make the publication rights exclusive to the original publisher.  This gauranteed that the author was able to derive a revenue stream as specified between the author and publisher.  This was also seen as a reasonable limit to encourage the author to keep inventing.  By having a fairly narrow time frame, the author knew, within reason, they had to come up with something new to replace the revenue stream that would eventually dissolve.

The “No Derivatives” Deed would seem to fill a similar role in the Creative Commons license scheme.  Protect the integrity of the authors work by not allowing new works to be built on their work.

However, there are two problems with this clause:

1. Most of the creative invention throughout time has been based on building works on the work of others.  Consider Bach’s Goldberg Variations.  The initial theme (Aria) in that work is by a different composer, which Bach then takes through a series of inversions, extensions, rephrasings, and re-shapings to come up with something that stands alone, uniquely in the pantheon of musical expression.  This isn’t the only example of this kind re-use or derivative building: Handel, Vivaldi, Mozart, Beethoven, Shakespeare, and others have done this.  And, while the practice still goes on today (see the recent explosion of mashups), this clause would seem to negate some of these possibilities.
2. Many works that are coming out today under this very license are themselves being built on the work of others.  They are, in fact, derivatives of other peoples works.  I recently lsitened to a work that took numerous lines from popular films, modified one word to create a “new” work, or at least a derivative.  However, the work(s) that were borrowed from were copyrighted works.  And, while I am certain no single instance as a whole would have been considered outside of “fair use” the collective usage might have tripped over that limit.  This same group almost every piece on another work with samples that could have been considered transformational.  And yet, in all of this, they chose to license their work under a No Derivatives license.

Doesn’t there seem to be a level of hypocrisy in these examples?  Doesn’t it seem a little strange for an author to build a work on the back of other works, but then want to restrict it’s usage by assigning a “No Derivatives” deed to their work?

I think there needs to be some level of thought put into the choice of this deed when assigning a Creative Commons license to a work.  As authors, we need to be careful about the choices we make, and how they are reflect on the Creative Commons community, and Free/Libre Culture as a whole.  While it is important to protect the authors rights so that they can be recognized for their work, it is encumbant upon the authors to be judicious in their choice of license / deed.

Summary

I hope my statements above are clearly understood by all.  I don’t have a problem with the Creative Commons, or even their Deed system as a whole.  I think it is one of the most beneficial systems that has been created to date, and I apreciate it daily.

However, that being said, I would like to see something done to expand on the “Non-Commercial” Deed to allow the authors greater flexibility in selecting what they deem to be commercial usage.  I think the benefit of this goes both ways: it allows the authors greate control over what they are trying to tell the end user of their pieces.  And, it allows the user to understand the authors intentions better, and allows greater flexibility in usage which will (hopefully) be beneficial to the author.

To authors: I would be more judicious in use of the No Derivatives clause.  Many of the works being released are built upone other sources, either found through the Creative Commons, or building on pulbic domain works, or other sources altogether.  When you are assigning the No Derivatives clause, I would like to see authors apply a measure of uniqueness to their works.  If the work is made of more than, say, fifty percent transformative pieces, then it shouldn’t really be under the No Derivatives deed.

The A Word About CC Licenses by The CerebralRift, unless otherwise expressly stated, is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.