Saturday, 2 May 2009

Creative Commons (CC) "non-commercial" - your views?

If you want to give your views to Creative Commons, you have till 5 May to fill in their questionnaire asking users of creative works about their use of creative content and what they think "noncommercial" means. They say it should take 15-25 minutes to complete, I'd allow for longer.

Their previous survey, aimed at creators rather than users, was meant to ask the same of creators (with focus groups, even) - but the slides reporting on its results seem to have more information about the creators than about their use and views on "non-commercial" licences.

These surveys are all part of a CC study to "explore differences between commercial and noncommercial uses of content... how the definitions of “commercial use” and “noncommercial use” are understood among various communities and in connection with a wide variety of content."

For those not familiar with Creative Commons, the Creative Commons licences are an innovative way of dealing with copyright in creative works in the digital age, enabling artists to share their works and allow others to build on them (e.g. sampling / mixing).

If you want to let others use your work, you can apply a Creative Commons licence to it.

Several flavours of CC licences allow "noncommercial" use only, e.g. require that the work is free for private use only, but anyone who wants to make commercial use of the work must get permission from the creator (which, normally, the author/composer/creator would be prepared to give provided they get paid a fee or cut of the gross or net profits earned by the person who wants to use it commercially - the details of course would be up for negotiation).

However, one big problem is that there's been (and still is) a lot of uncertainty about what exactly is meant by "commercial use" vs "nonc0mmercial use".

For instance, if you sell a magazine that reproduces my blog post in full and my blog has a noncommercial licence (which it does), I think it would clearly be a breach of my CC licence if you didn't get my permission first, and I could sue you for it.

Similarly, if you set up a blog or site that solely consists of blog posts from other people's blogs, and you run ads on your site, I'd say that was clearly for a commercial purpose, and you should get their permission - particularly if you included their posts in full. I've had a few blogs taken down that did that with my posts.

I'm less sure what the position would be if you only included short extracts from other people's posts or websites or other writings, though I still tend to think it would be "commercial" if your site has ads.

(If you just copy a small extract maybe it's not even an issue needing my permission under the licence, because it could be "fair use" or "fair dealing", which is where even though it is strictly a breach of my copyright, the law gives you a let out if it was a particular kind of use e.g. criticism or review, depending on the details of the law of the country you're talking about. But that's a different, though related, minefield.)

What if you have a blog with your own original content reflecting your own original thoughts and original writings, and you quote a bit from one of my posts for the purpose of commenting on my post, but you had ads on your blog? Personally I wouldn't mind you doing that (yes, even if it's a negative comment) - but whether that would be "commercial" use by you, I'm just not sure - you're running ads, so it's probably safest to ask for permission first, just in case. A lot may depend on how much you quote, e.g. if you quote the whole post just for AdSense fodder and that's the real purpose behind it, I wouldn't be happy. It's a grey area, and very unsatisfactory.

There were even Draft Guidelines on noncommercial use posted by CC for discussion purposes only, looking at some of the uncertainties. Sadly, they've been taken down pending the outcome of this study (pity, I thought they were helpful and surely a big disclaimer on them would have been enough), but draft example noncommercial use cases are still up, and those interested can find a version of the original draft guidelines on the Internet Archive plus a great flowchart illustrating the original draft guidelines.

Personally, I think that while the CC people do a great job overall, these surveys could have been run in a much better way (perhaps this was down to Netpop who were hired to run the survey). Call it a personal bugbear about surveys or questionnaires that don't have specific deadline dates and times (and timezone) clearly emblazoned on the front of them from the start, but I think that, generally, putting up surveys without any deadlines will not draw in responses from busy people so the results are going to be skewed - indeed, not spelling out deadlines at the start could even be viewed as disrespectful to the people whose time you are asking to give up in order to help you out for free by completing the survey. Asking for survey responses in the run up to the Christmas holiday period (for the first part of the survey last year) won't have helped either. There were comments too (e.g. this one) on the inordinate length of the first survey, which again would have tended to make respondents self-selecting.

All the same, that doesn't detract from the importance of the survey - so do try to answer it if you have time, it should help the CC folks pin down the issues and hopefully produce clearer guidelines or draft licences that spell out more clearly and practically the "noncommercial use" vs "commercial use" divide.

(Aside: Linking to other people's original posts or webpages without quoting anything from them shouldn't get you into trouble on the copyright front, although it could be risky if you link to a post that itself breaches someone else's copyright, or defames someone else - it's all a bit tricky.)

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