Will CC 4.0 Make NC Clause Problems Worse?

I’ve said a number of times that I wouldn’t engage in discussions about the NC clause in the future. However, during the comment period for the 4.0 licenses I have to give some feedback – not about the NC clause, but about another section of the license that is critically important to the functioning of the NC clause, vague and imperfect as it may be.

The current version of the Creative Commons BY-NC-SA license, Section 8, Subsection e, reads:

This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

This means that the extra “add-ons” organizations try to attach to CC licenses are, according to the license itself, prohibited and meaningless in the context of the license.

The most popular of these add-ons is one in which institutions define “Noncommercial Use.” The way these statements are included on websites next to the link to the CC license would lead you to believe that they are somehow incorporated into the license by reference. Not true, it turns out – in fact, the license explicitly prohibits a Licensor from trying to do that.

Now, why would CC want to prohibit people from providing local definitions of Noncommercial Use? Let’s take a look at two concrete examples of the prohibited add-ons. First up, the relevant language from MIT OCW’s add-on:

Materials may be used by individuals, institutions, governments, corporations, or other business whether for-profit or non-profit so long as the use itself is not a commercialization of the materials or a use that is directly intended to generate sales or profit.

Next up, the MITE add-on:

MITE understands that the Noncommercial (NC) restriction on this Creative Commons license precludes institutional use of the materials, including by governments, corporations, public entities, and businesses, whether for-profit or non-profit.

So here are two almost perfectly contradictory definitions of Noncommercial Use. I’m not passing judgement on which is better – for sake of my argument it doesn’t matter. The salient point is that the definitions contradict each other.

Both these sites (MIT OCW and MITE) use the ShareAlike clause together with the NC clause. The SA clause includes the statement, “You may Distribute or Publicly Perform an Adaptation only under the terms of this License.” This language forcibly relicenses materials remixed into a BY-NC-SA work under the same (BY-NC-SA in this case) license as the original work IF the work is to be distributed or publicly performed. For this reason, BY-NC-SA works (like MIT OCW) and BY-SA works (like Wikipedia) cannot be remixed – the SA clauses of the BY-NC-SA and the BY-SA license conflict, both trying to relicense the other under its own terms. (If this is confusing, please play my CC licensing remix game which will help you master the the underlying concepts.)

Consequently, if CC licenses were to allow local definitions of NC to be incorporated into a BY-NC-SA license by reference, we would frequently – but not always – find ourselves in a situation where two BY-NC-SA licensed materials could not be remixed because they would actually be licensed under different licenses due to the language of the add-on. To be more concrete, if add-ons were legal you could not remix MIT and MITE content because they would be licensed under two different licenses, even though on the surface they appear to be the same license. And you thought NC was confusing before!

In the current draft of the 4.0 licenses the Section 8 Subsection e language has been removed (see this handy comparison chart.) If something similar is not put back in its place in the proposed new Additional Terms section, CC will not have six licenses – it will have infinitely many licenses. Talk about license proliferation! Consequently, I believe the 4.0 licenses MUST INCLUDE language similar in function to the current Section 8 Subsection e.

Frankly, the whole situation is reminiscent of the entangled problems of immigration reform in the US. Since the Feds refuse to act on the issue, individual states are acting in ways that are not entirely harmonious (or necessarily sensible). Similarly, if CC continues to refuse to define the NC term, individual Licensors are each going to want to provide their own definition. However, under no circumstances should they be allowed to do that.

People sometimes wonder why I talk about 4R permissions, asking if “revise” and “remix” are really that different. Revise is something you do to the inside of a resource. Remix is combining two or more resources together into a new work. If MIT and MITE were allowed to define NC locally, remix with other BY-NC-SA works would cease to be permitted for their works, but revise would continue to be permitted. License incompatibilities are the primary reason why there are 4 Rs instead of just 3.

UPDATE: Diane just sent an email saying that language like that in Section 8 Subsection e will definitely be part of the 4.0 licenses, and pointing out that I just missed it in my review of the docs available on the wiki. This is excellent news. I hope that, going forward, we can do better education / outreach to the CC community to make sure that (1) Licensors know that they can’t “redefine” Noncommercial with little “clarifying” add-ons, and (2) users know they can safely ignore the Licensors who still choose to write these add-ons anyway.