This post has been written “live” at the Creative Commons Global Summit 2011, taking place from September 16-18 in Warsaw, Poland. 

Among the seemingly neverending issues connected with Creative Commons licenses is the NonCommercial module. In 2008, Creative Commons even did a large quantitative study entitled “Defining Noncommercial” (see “Standardizing via Polling? Creative Commons’ Study on Its Noncommercial-Clause”).

Reflecting on the results of these study, Creative Commons representative Mike Linksvayer emphasized that licensors say they are somewhat liberal in expectations of what licensees will do, which might explain lack of open disputes with regard to license interpretation in spite of the module’s ambiguity. With regard to license adoption numbers, Linksvayer showed graphs illustrating that NC is still the most popular license module while the license-mix is changing with a very slow downward trend in the use of the NC module.

Describing the upcomming license versioning process as “a once-in-a-deacade-or-more opportunity”, Linksvayer listed a number of issues that could be addressed within a new version 4.0 of the licenses.

First, the continuous discussion about the correct interpretation of the license module might damage Creative Commons as a brand. The flipside of this argument is, however, that Creative Commons as an organization does not really know what freedom means in various communities, which need to discover such for themselves. This was also the case in the realm of software, where Linux was first released under NC terms.

Second and probably more importantly, the flexible definition of the NC module might function as a barrier to conservative use such as the often discussed compatibility of Creative Commons usage with collecting society membership and revenues. Weighing in on that issue, Paul Keller recalled that in his experience as a project lead in the Netherlands, the flexibility of the NC definition was indeed a problem for collecting societies. More generally, a clear-cut definition NC could be valuable because it allows to not persecute fans for sharing but at the same time protecting alternative revenue streams.

Third, the NC module still sounds very appealing to many creaters and is thus probably overused by those without existing revenue streams to a project. This could in turn lead to an under-use of non-NC licenses, which realize far more value since there are projects (e.g. Wikiepdia) that rely on free licenses to exist.

Forth, there are several other arguments against users choosing the NC module that are well known, see for example the list at Among those arguments is the built-in non-interoperatibility with other licenses in the Creative Commons suite.

For addressing these issues in the course of the versioning process, Linksvayer then presented four “provocative alternatives”:

  1. Don’t version NC licenses, eventually hide the option from the license chooser, thereby formally retire the NC module
  2. Drop BY-NC-SA and BY-NC-ND to simplify the license suite, which means to effectively keep just von version (BY-NC)
  3. Support NC licenses, but rebrand as something other than CC.; move to domain would be strongest
  4. Clarify definition of NC (e.g., match conservative user wish; pointed out earlier more thorough definition in license could be useful for global license)

Options (3) and (4), of course, are compatible with one another. In deciding whether to pursue any of these options, Creative Commons faces dilemmas, two of which Linksvayer explicitely mentioned:

  • Any of the options would address the issue of incompatibility but could at the same time dilute the brand of CC.
  • Any of the options would increase certainty but there would be a number of costs and resistance from existing NC users.

Specifically the last point is interesting, since it points to the inherent path dependence of private regulation via (licensing) standards. Once you’ve launched and diffused a standard, fundamental changes are becoming more and more difficult. In this regard, I doubt whether versioning is really this “once-in-a-lifetime opportunity”.

What is more, the main reason for the perceived “flexibility” in the adoption of the NC module is due to ambiguity in legal formulations. I am sceptical as to whether a global license version 4.0 (see  “Making the Case for Global Licenses“) could afford to be less ambigous. I am not even sure, whether version 4.0 should strive to be less ambigous. At least to some degree, the ambiguity of the NC module is a productive one since it allows different communities of license users to agree on (maybe slightly different) interpretations of the NC clause. As mentioned by Linksvayer in his talk, this advantage of ambiguity is at odds with the strategy to win over powerful but more conservative adopters such as collecting societies. This is probably the most important dilemma Creative Commons is facing when trying to tinker with the NC module.

Personally, I think it might be helpful to also – or even mainly – think of non-license-changing measures such as (official) license endorsements for certain areas (e.g. Open Educational Resources, Open Data, etc.) or more selective license promotion such as in Linksvayer’s second suggestion above.