Interesting questions from the CC 4.0 draft discussions

I’ve been following the discussion about Creative Commons BY-NC-SA v4.0d1. This release is an important one for many reasons; one is the sense that v4.0 is expected to remain in place even longer than the 5+ years v3.0 has been final.

Creative Commons has been very straightforward about precisely what’s changed [pdf] and what are the major decision points on which they want input. Those are all interesting and worth reading, but I’ve been most interested by three separate threads that have emerged out of points of contention on the cc-licenses mailing list where discussion is taking place.

One interesting question concerns source requirements in CC licenses, and particularly in ShareAlike licenses. Should freely licensed culture, like free software, come with some sort of “source”? What form does that even take for cultural works? In some software licenses, such as the GPL and Apache license the source code is defined as the “preferred form for making modifications.” By that definition, some sort of source requirement could seem workable for culture. But in practice, the preferred form for modification just varies too much in cultural works based on the sort of modification. That leads to a problem that Christopher Allan Webber has summed up neatly:

as far as I can tell it’s simply too hard to draft legalcode that’s not incredibly hard to comply with for many cases of users, or which ends up being so vague that it ends up being basically useless or completely ignored.

A second question I’ve been following is whether there should be no-DRM clauses in the licenses. At first glance it seems similar to the source requirement argument, in that technically speaking both “object content” (i.e., content presented in a form other than the “source” preferred for modification) and DRM-wrapped content are difficult but not impossible to work with. There’s one major difference between the two, though: anti-circumvention laws in place make DRM breaking illegal in a way that modifying object content isn’t. In effect, that makes the DRM an overriding all-rights-reserved for anybody who wishes to use it as such. As Rob Myers describes the difference:

unlike with DRM one cannot have people fined or imprisoned if they decide they are going to do the work of translating the work to a more useful format. Low-fidelity or non-machine-readable media are a separate issue from legal restrictions. In the absence of copyright or DRM I can scan a hardback book or rip a vinyl record, neither of which are high-fidelity, digital, or read/write media.

Finally, one of the more out-there suggestions that’s sparked a lot of discussion is a proposed re-branding of the NonCommercial license as Commercial Rights Reserved. Changing the name of a license clause seems like a big deal to me, because the different modules are a major part of the CC brand and the way that many people understand them. But I think this proposal is so much closer to the meaning of the license it must be seriously considered. On the mailing list, one participant has objected to this proposal on the grounds that she uses NC licenses to indicate that “a work is meant to be primarily or entirely outside of the commercial realm rather than the creator reserving commercial rights.” I think that she’s unwittingly highlighted the problem: people are attracted to the words “NonCommercial” without a real understanding of what the license text says. The results are not good for anybody, because the works then carry less freedom and aren’t subject to the same conditions the licensor thinks they are.

It’s not the usual way I think of it, but each of the CC modules is about reserving some rights. BY reserves the right to publish a work without attribution, SA reserves the right to choose a license for a work, ND reserves the right to make derivatives. It only stands to reason that NC reserves the commercial rights, but I don’t think that’s how the clause is generally understood.

I’ve really been enjoying these conversations, and I appreciate that CC gives the public an opportunity to engage at this level. I’m looking forward to seeing how this drafting process develops.

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