Thursday, December 29, 2011

Let's raise the floor: a proposal for Creative Commons - fair copyright, CC-free to use, rewrite noncommercial and add public domain perpetual

This post is intended as a contribution to the Creative Commons (CC) 4.0 public discussion. Please submit any comments to the appropriate CC discussion list.


This post suggests raising the floor by creating a new CC-fair copyright for works that are not freely available. This will be counter-intuitive to many a commonser, but note that this would give consumers a great way to exert pressure for fair copyright. A new CC-free to use / all rights reserves licenses is suggested, reflecting CC Version 4.0 discussions suggesting the possibility of breaking noncommercial into a stronger and a weaker license - this would be the more restricted version. Wording is suggested for noncommercial per se to clarify that educational use is not commercial, therefore permitted, and asks whether public domain should be redefined as CC-Sharelike (preferably in perpetuity). A question is raised about advertising - is this really a commercial issue, or in part a matter of creators' moral rights?


Creative Commons - fair copyright
The idea is to create a new license for use with works that are not free at all, to indicate that the licensor supports and agrees to what we would like to see with copyright, including a broad set of fair use / fair dealing guidelines and a commitment to place works in the public domain in a reasonable time frame. By this I mean not current national or international law, but rather the best practices for fair use / fair dealing that we would all like to see as a minimum. Suggestions as to what this would be would be most welcome - perhaps an advocacy group for fair copyright has guidelines that would suit?


Strengths of this approach include:
  • This would give consumers - from individuals to large organizations like school districts - an opportunity to apply market pressure towards more fair copyright practices. As a librarian involved in coordinating purchase of information resources, I can see this being high on the list of desirable (or even required) criteria for purchase.
  • This more inclusive approach would broaden the commons, and help to bridge what I see as an "us versus them" divide. My understanding is that the experiences with free / open source software and creative commons to date have shown that people tend to start with more restrictive licensing, then move to less restrictive licensing over time. It would be psychologically a smaller leap, as a reader, listener, etc., to move from cc-fair copyright to cc-sharealike than to move from outside to inside the commons.
Weakness: proponents of a strong commons may not like this idea.

Creative Commons - free to read / all rights reserved
This is very similar to CC-fair copyright, except that the work is free to read online. With robust fair use / fair dealing, of course such uses as downloading, format-shifting, etc., for personal research and that sort of thing would be included.
Rationale: The "all rights reserved" is meant to address one suggestion that has come up in the CC Version 4.0 discussion, of dividing noncommercial into a two licenses, one with stronger and one with weaker restrictions. This would be the strong version. Sharelike might be an option with this license.

Creative Commons Noncommercial - suggested wording change
The current wording under Section 4 b - restrictions reads:
You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.
 Suggested change to:
You may not sell the content of the work for private gain. For the avoidance of doubt, educational use is not considered commercial for the purposes of this license, and is therefore permitted. Including the work in a package designed for sales to educational institutions for the purpose of private gain is commercial use and is prohibited. Providing services that facilitate uses of the work included in this license, such as copying services, are permitted provided that any fees charged are for the copying service alone and not for content provision. 
 Question about advertising: 
Would it make sense to include: use of the work or parts thereof in advertising products or services sold primarily for public gain is considered a commercial use, and hence prohibited. The reason for why question is, I wonder if advertising conducted in such a way as to imply that the creator endorsed a product is a violation of creators' moral rights which should be reflected in all CC licenses (for those jurisdictions where this is not already covered by copyright law, and to educate those who use CC-licensed work).
Rationale: I think that this may be close to what most ordinary creators mean by noncommercial, that is, don't sell my work or create a new version and sell that. It's pretty close to why I use noncommercial. Clarifying that educational uses are allowed would be a huge benefit to everyone, everywhere. Knowledge benefits us all!

Creative Commons - public domain suggestion
Based on a recent commons on the cc-licenses list that public domain is problematic, I wonder if it makes sense to redefine public as CC-Sharealike? Ideally, this should be perpetual, or at least give the creator an opportunity to say that they think this license should be perpetual.

My four bits for today, for what they are worth! Many thanks to Creative Commons and all of the cc-licenses and cc-community participants who have helped to shape my thinking about these matters. Apologies for any conceptual errors, real or imagined. This post is part of the Articulating the Commons series