Einar's blog
07 juli 2020

The Non-commercial clause

A month or something ago, I wrote a blog post about changing the license of every cultural product I make. I went with the Creative Commons Attribution Non-Commercial ShareAlike 4.0 International. After writing the blog post, I changed the license of all my pictures on Flickr and the copyright notice on the bottom of this blog.

I have since seen some videos from LibrePlanet, the Free Software foundation's conference and through that been introduced to some new and interresting people and projects that I have checked out online. I don't remember exactly where, but through checking out one of these websites, I came across a a page discussing the Creative Commons Non-Commercial clause. The site states that any Creative Commons license with the Non-Commercial part is non-free and is problematic in a number of ways. The main problems are that it makes the work incompatible with other free works and therefore derivatives and combinations are not possible, it may rule out other basic and beneficial uses (say a charity using the work to earn money), it supports the near-infinite copyright terms (one of the things I want to avoid by using a free culture license on my works) and it is unlikely to increase the potential profit. A share-alike license serves the goal to protect the work from unethical exploitation just as well. There is a long discussion about each of these points.

I had opted to use a ShareAlike license precisely to make certain that my work could not be modified and redistributed as copyrighted by someone else that did the modifications. It also ensure that I am also attributed in any derivative work. It is this ShareAlike part of the license that makes it copylefted, ie, once released under a free license, it cannot be copyrighted again by anyone.

My reasoning for choosing a Non-Commercial License was that I do not want others to reap commercial benefit from my work without having to come to me for a commercial license and thereby making me some money. I then discussed different business models people use to earn money even if their work is licensed as free culture. The implication is that for me to earn money off of my work, I would have to set up some business model around my work. This would be the case even if the work was released to the public with full copyrights without any free culture license.

For most of the business models I can think of, the license for the work does not actually matter. If I were to sell (limited edition) prints of my photographs, the license of the digital file it was printed off of would not matter. Other people could print from that file, but only I can sign my pictures. If I were to set up a patreon or paypal tip button or some other business model where people who appreciate the things I make (whatever the medium) pay me for continuing to make them, it doesn't really matter whether my works are licensed only for non-commercial use or not. If I were to sell a(n) (e)book, it would not matter that the content was also available under a fully free license without the non-commercial part. If I were to make a video course, a workshop, … it would't limit my income from that work if I made the content available under a free license without a non-commercial clause.

The only time the non-commercial part of the license really matters is if my business model is to sue people for using my work commercially to extract some compensation for their use of my work. I would rather spend my time creating things than suing people and companies, and I would rather trust people to get in touch and pay me something if they value what I make, as good people in the free culture community do, instead of spending my time and my money going after people that use my work commercially without contributing back. Maybe I am naive, but I do think that releasing the work for possible sharing and cooperation has a value in itself and makes the work more valuable for the world, not less, even if I might loose a bit of money by not going after people "stealing" my work. If I am able to make a business model that actually works, I would not have to go after people for using my content commercially to earn enough off of my work to make it worth my time.

There is a parrallel between free culture and free software in that many large companies are using and contributing to free software these days, but Amazon and probably many more, are relying on free software projects for their cloud without contributing anything back. Recently, one of the non-SQL-database projects (I cannot remember which) changed their license from a free software license to something restricting commercial use to combat this exploitation by Amazon's Web Services. The result is that their work is now incompatible with Free Software and is either forked or removed from the GNU/Linux distributions and repos where only free software may reside. In effect, the project has made itself less valuable to the community they want to be valuable for, ie. people using free software, for the sake of limiting the commercial exploitation of their work. They have become less relevant and receives less funding from the community as a result of this. Over time, it will definitely harm their brand and Amazon has switched to offering other free software Non-SQL-databases, thereby limiting the project's reach further.

From the example above, it is clear that by licensing work as non-free, one is limiting one's reach within the free software/culture movement, and thereby limiting one's abillity to reach new users willing to fund further work. As Microsoft, IBM, Google, Facebook and Amazon has discovered, the power of collaboration and community is worth more than proprietary products they make by themselves. Not being willing to contribute back to the projects you benefit from when you are one of the largest companies in the world is extremely short-sighted and morally questionable (which many other aspects of these companies' practices also are). Companies and people that want to exploit others for their own benefit will always be here, but for every such company, there are many others that do contribute back to the community.

As a baroque cellist, most of the music I played were made by people making a living creating music in a time long before copyright existed. Most of these great composers did not starve (Monteverdi is the exception) and their work was available for people, less than 70 years after their death, to use, study, modify and distribute, like for instance Mozart's version of Händel's Messiah. Mozart would not be allowed to make that during his lifetime since he died less than 70 years after Händel and the world would have been robbed of a great work of art had Mozart lived under our present copyright laws. Even if the work was licensed as CC BY NC SA, Mozart could not have made his derivative work since it was used commercially.

I am currently not working as an artist, designer, photographer, musician, video maker etc, but when I were, I relied on playing live for (parts of) my income. If I am ever to get back to work as an artist, I will find a businees model that works and continue to use a free culture license so my work can be more valuable to the world since people can modify, share, study and distribute it as they like. Profit can be a motivation factor, but in reality, in most circumstances, there is little to gain except if the business model is to sue people, by using a non-commercial license. I do think it is important to use a ShareAlike license which makes it illegal to change the license of modified versions of the work to ensure that the work and its derivatives stays free cultured. By using a license which demands attribution and is ShareAlike, people also get the chance to find the original creator and possible contribute back if they enjoyed the work or used it for something or simply are curious about who made it in the first place.

To sum up, I am changing my licensing again for my cultural and artistic work from Creative Commons Attribution Non-Commercial ShareAlike 4.0 International (CC BY NC SA) to the fully free culture license Creative Commons Attribution ShareAlike 4.0 Internationl (CC BY SA). It is more in line with my original reasons for licensing my work under a Creative Commons license and it doesn't make it any harder for me, should I ever pursue a carreer in the artst or in culture again, to survive economically. It will make my work relevant and more valuable for the free culture community than if I continued to use a non-commercial license. When it comes to software, my ideal licenses are still the GPL and the AGPL (for server-side software).

All blog content is licensed under the Creative Commons Attribution-ShareAlike 4.0.