Removing the nc: why license restrictions on commercial use are problematic and (frequently) unnecessary

I was very interested to hear about the project from Adnan Hadzi when he spoke about it at the Free Culture UK meetup. However given’s focus on remix and reuse I was surprised to see that they use a by-nc-sa (Attribution-NonCommercial-ShareAlike) licence which explicitly prohibits commercial usage (and therefore incompatible with the GPL-type by-sa). I asked Adnan why this decision had been taken and he explained that: ‘the important reason was that many film-makers refused to allow their work being possibly used for profit’.

While appreciating this concern, for reasons I elaborate below, I think the adoption of the ‘non-commercial’ restriction is a big mistake. Removing the restriction would deliver significant gains in terms of greater freedom for reuse and it would demonstrate a commitment to full ‘openness’ helping to prevent fragmentation of the ‘commons’. At the same time the downside of doing this would be minimal.

First, a by-sa license is clearly ‘freer’ than a by-sa-nc in that it places fewer restrictions on the use of the work. In general this is a good thing since it means fewer occassions on which people have to /ask permission/.

The Open Knowledge Definition following the approach of the F/OSS community prohibits discrimination against fields of endeavour (article eight) including restrictions on commercial use. Just as for open source I think it is important to have commercial users join the community. Furthermore this kind of restriction not only adds further complexity (what exactly counts as ‘commercial’ use?) but also is the basis for the introduction of a whole panopoly of further cases of ‘special treatment’ (for developing nations, against military use, etc etc) leading rapidly to a fragmenting of the ‘commons’. I’d therefore go as far as to say that a license which incorporates ‘nc’ type provisions should not be described as ‘open’ and should be avoided wherever possible.

Second is all commercial usage bad? I know someone who made a documentary about Chavez and distributes it for free. At the same time he has received payments when it has aired by commercial tv stations (they often pay even when they don’t need to). This would make his work ‘commercial’ but it seems a far cry from, say, use in a coca-cola advert. Do you really want to prevent that kind of usage? If you do you’ve just cut out most of the main avenues for ’serious’ reuse of your work — ultimately most documentary makers would like to see their stuff get out to as wide an audience as possible and that means broadcast on a commercial network.

Third for the types commercial usage that I imagine you would most object to (e.g. adverts) the share-alike clause should be a sufficient obstacle — the makers of a major ‘brand’ advert probably do not want to have ‘reshare’ their work. They would need to come and relicense from you and at that point you are in the same position as with an nc license.

Further Reading

I am by no means the first to consider this issue. See e.g. Erik Moller’s essay:

And Lessig’s response:

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