Tuesday, August 28, 2012

Crazy Idea Creative Commons NC Fee

Crazy Idea Creative Commons NC Fee
 Copyright 2012 drew Robert

Creative Commons License
Crazy Idea Creative Commons NC Fee by drew Roberts is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

So there is quite the debate going on right now on the Creative Commons mailing lists and on identi.ca as to the possibility of CC dropping or deprecating BY-NC and BY-ND variants as a part of the upcoming license version refresh.

I have asked for years that if CC does not drop the NC and ND stuff, they at least create a FreeCC brand / logo / etc. that those who use CC licenses but are only interested in the Free side of things can use and promote.

Dropping them would be OK with me too,

So this morning I had this crazy idea.

Since the people who use the NC license on their works reserve the right to make commercial use (make money from / profit from?) of their works for themselves and seek to restrict others from doing so, might it be fair to ask them to pay Creative Commons a small fee for the use of the NC license for each work that they release under such a license? Would it also be fair for CC to demand a small ongoing rate tied to revenue from the work on a yearly basis?

I can hear the howls now. Sorry.

If you are an NC user and are howling, consider this:

Those who use a Free BY or BY-SA license for their works allow others to earn revenue and possibly make a profit from their works. CC can do so if it chooses. The people who comprise CC can too. You, on the other hand want to reserve all of the revenue and profit for yourself. Why should you not pay a small fee to protect your works with such a finely crafted license? Why not pay a small percentage of the revenue you earn from your work thus protected? (Don't forget that a small percentage of $0.00 revenue is $0.00.)

If you don't want to pay with money, pay by sharing.

Hah! Ouch? I just had an even crazier idea to add to this:

CC could begin charging web sites etc for the right to offer the NC licenses for use in their site. If the sites need to, they could pass this on the the users as well. Nice way to double dip a bit there...

all the best,

(who may try and improve on this bit of crazy. Help doing so appreciated.)


Carlos Solís said...

There's a problem with this plan: the earlier licensees would be played an illegal bait-and-switch, and the fee would be nearly unenforceable anyway.

zotz said...

Well, I rather they dropped NC. But people not wanting to pay the fee could just stick with the old versions. No bait and switch.

Since the licenses are likely copyright Creative Commons, they can charge a fee and could collect about like people charge for use of copyright works now.

Or am I being dense?

Mike Linksvayer said...

It's not that crazy, or at least similar has been suggested before. I recall a friend suggesting charging per license to address provenance and funding issues during Q&A at http://conferences.oreillynet.com/cs/et2002/view/e_sess/2376 back when CC was pre-announced. An entity suggested a "Revenue Share" license, with CC getting a cut (of ad revenue) IIRC a few years ago (I don't remember the response if any).

Copyright on the licenses themselves isn't an issue http://wiki.creativecommons.org/FAQ#Can_I_change_the_license_terms_or_conditions.3F and isn't relevant anyway.

The mechanism for NC-but-you-have-to-pay-CC would have to be different from the current pure public license one. CC isn't a party to the license, and the same license can be used, should be used, by everyone.

An option would be to not version the NC licenses, and instead offer some kind of a commercial licensing service that users of would have to grant the public some rights. This would be complicated, and frankly there's a long list of projects to do something along those lines (not directly involving CC) that you haven't heard of because they've gotten zero traction. Commercial licensing in various fields is very competitive and there's little to no value in accompanying a pay-for-commercial-license with a public NC offer, and considerable disadvantage -- you can't offer exclusivity.

That's not to say some variation of the idea and excellent execution and lucky timing is impossible.

Also would need to be considered how such a project would impact CC's mission.

Mike Linksvayer said...

"(I don't remember the response if any)" was supposed to be regarding question asked during CC-pre-announce-Q&A, typed in wrong place.

Mike Linksvayer said...

By the way, although this is no doubt to some extent just confirmation of my biases, observing would-be NC+commercial licensing projects fail is another reason I find NC suboptimal and overused. There just isn't much profit realizable (almost always none or negative) from commercial exploitation-that-requires-copyright-permission of NC licensed works, yet the non-free license also destroys most of the works value for the commons.

zotz said...

Mike, nothing would stop CC from asserting copyright in the NC licenses if that was needed to make this work and they wanted to do this. I doubt it would be needed though.


Because they could instead charge for the use of the CC name in relation to the CC NC licenses. Sine the name is in the license text, the only way to avoid it would be to change the license and thus not be able to call it a CC license anymore.

CC would not need to be a party to the license to charge for the use of the license. CC can charge for the use of its brand, logo, license or amny other things to enable this plan to work. Right?

The fee should be small enough to be affordable but large enough to make people think if they really need to reserve commercial usage for themselves.

The royalty payments if included in the plan would vary based on the revenue the work generates and would thus be self adjusting.

CC could use the funds to fund the creation of larger Free works such as movies for one.

Mike Linksvayer said...

Regarding charging for use of a name or mark, I suppose that might be possible, but again the license mechanism would have to change significantly unless CC is going to advance the retrograde position that simply identifying a document requires permission from an "owner".

Regarding royalty payments to fund the creation and administration of the mechanism, let alone to fund free works -- very low probability. I'd have very low revenue and negative profitability expectations. Realistically, it would probably require subsidy from donors just like the rest of CC.


Continuing from above comments, since I mentioned the failure of many NC+commercial licensing projects, I may as well mention two that are ongoing and thus could prove me wrong. Jamendo now seems to be very focused on commercial licensing, but this hasn't really pleased the community, and if they succeed long term I suspect it will be because they were acquired (not sure if that is the most accurate description, but effect similar) by an entity that has a bigger business in commercial licensing, ie they know the business they are in. And rightclearing.com launched earlier this year. I guess it is way too early to say how they're doing.


Only somewhat relatedly, I'm much more interested in businesses and other projects that EXPLOIT free works. Obscurity, not enclosure, funding, piracy, etc etc, is the biggest challenge for free works to become culturally relevant.


Finally for this comment, since we're discussing possibly crazy ideas for making ~NC useful, two others that come up occasionally:

* Make the term itself more narrow such that it is more appealing to conservative entities, and more differentiated from free licenses (this has been rejected, but we're talking crazy)

* Build in a drop-NC (and ND) after n-years; works licensed as such would eventually join commons, and license (well, NC, but not ND) would more fully model a set of typical copyright policy reform requests -- allow noncommercial filesharing and remixing, and shorten monopoly duration.

zotz said...

I don't know that much would have to change. Just license the use of the BY-NC* trademarks perhaps.

Imagine if Flickr for instance could use any CC trademarks not containing NC gratis but had to pay a per work fee for each NC work hosted that used an NC trademark.

Would they be willing to eat the fee?
Would they set up a business to help the NC folks monetize their images and thus pay the fees?
Would they just pass the fees on to the photographers?
Something else?

Imagine further that each actual copyright holder had to pay a fee to use the NC trademarks. Add to this a document where the fee is explained saying that the purpose of the fee was to recoup some of the costs from copyright holders seeking to reserve commercial uses of the work for themselves. This might go a log way to getting the message through to people who choose NC because they have no commercial plans in mind for their work.

Re Jamendo, yes they do seem to be making it harder to see the Free aspects of the works they host under a Free license. In my mind, this is misguided even if they want to pursue the pay to stream commercially model. They can easily offer an alternate license stream of works also available under Free licenses.

In other words, I don't see why an alternate to Jamendo that only hosted Free works could not pursue the exact same business model with the right agreements from the artists. Jamendo must be signing these sorts of agreements with the NC using artists now at least and are probably doing so with all of them to at least avoid the BY technicalities.

Kompoz offers commercial uses for works published there, but I see things going in the wrong direction there to my mind. Used to be only private projects could be ARR. Now public projects can be ARR and I have seen people I used to see using mostly Free licenses switch to ARR.

Even the order they list the license choices has always been a fail to my mind:


(c) All Rights Reserved Upgrade to PLUS!
Creative Commons Attribution
Creative Commons Attribution-No Derivative Works
Creative Commons Attribution-Noncommercial
Creative Commons Attribution-Noncommercial-No Derivative Works
Creative Commons Attribution-Noncommercial-Share Alike
Creative Commons Attribution-Share Alike
Public Domain

and before the recent additions the order was, iirc:

Creative Commons Attribution
Creative Commons Attribution-Noncommercial
Creative Commons Attribution-Noncommercial-Share Alike
Creative Commons Attribution-Share Alike

Companies seem to hate the protected Freedom of copyleft.

Consider google code not accepting GPL code in the beginning.

Consider YouTube only offering BY and no BY-SA.

I for one would love to see some business figure out a way to, without lock in foolishness, to earn money off of copyleft, Free works at a decent scale.

Re obscurity vs enclosure, I really need to make some time to pushthe overnight million seller idea I have been kicking around for a good while now.

What do you mean when you say narrow he term commercial?

Crazy follow on to your lsat suggestion, have the NC and ND works to to BY-SA rather than public domain. More attractive to licensors, less attractive to those wanting to get their hands one what would have been locked up long term on PD or BY terms.