Creative Commons Non-Commercial Licences

During and after the kick-off meeting for ViBRANT there was much discussion on the “non-commercial” (NC) limitation, which is part of the default licence scheme added to content created within the ViBRANT infrastructure. A strict definition of NC makes this content incompatible with a growing body of other free material (e.g. Wikipedia) and potentially rules out other beneficial uses that a content creator might have intended to allow. Much of the post conference discussion occurred on Twitter, and its 140-character limit left a number of issues open to misinterpretation and conflation. This post is intended to clear up some of these issues and outline some next steps.

Background to the problem

As a condition of use any content added to a Scratchpad (some software that is part of the EU funded ViBRANT project) must carry a Creative Commons licence. By default this is minimally the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported licence (CC BY-NC-SA 3.0) and at present this encompasses some 300k pages of content, mostly about biodiversity (e.g. taxonomic name metadata, specimen records, literature, species descriptions etc). The notable exception to this is multimedia, where we currently allow users to choose any licence. The non-commercial limitation (and the flexibility with multimedia) was originally chosen to incentivise engagement by contributors (mainly taxonomists) who might be concerned about the possible commercial exploitation of their work. Without such protection we were concerned that the taxonomic community would not engage with the project, and that the projects primary goal (making taxonomic content more accessible) would not be met. The question now is whether this assertion holds true, and whether we have sufficient critical mass to drop the non-commercial limitation to facilitate the projects secondary goal (making taxonomic data more reusable).

What does non-commercial mean?

Officially non-commercial precludes use of rights granted for commercial purposes “… in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation”. In practice this means different things to different people and there is disagreement about where the boundary between commercial and non-commercial lies (see the “Defining Non-commercial” report published by Creative Commons). Within the Scratchpad project (and subsequent to this in ViBRANT) we have interpreted non-commercial to permit uses that are not-for-profit (i.e. tax exempt in the US sense or charitable in the UK sense). Thus for example, uses by natural history societies and not-for-profit educational groups WOULD be permitted under the terms of non-commercial, even if these groups charged for their services. This interpretation is broadly inline with findings from the Creative Commons non-commercial survey, where both creators and users rated uses by not-for-profit organisations as a means of cost recovery, as significantly more non-commercial than commercial activities. However, our interpretation is not formalised, and open to dispute.

Who is concerned about the non-commercial limitations?

Within ViBRANT, and almost without exception, concern has come from potential users and re-mixers of context, not from the original content creators. This is understandable, given that users are typically more conservative in their interpretation of what is non-commercial than creators, and that in some cases, creators who earn money from their work (i.e., have more reason to dispute questionable uses) are more liberal in their interpretation of what is non-commercial than are those who don’t (see the “Defining Non-commercial” CC report). Of course, creators of content should be concerned about these issues, especially if the licence were to preclude uses that they might have intended to permit. However, experience of the Scratchpad team is that contributors when asked, are mostly unaware or confused about copyright and licensing, including Creative Commons, and that this is not a major area of their concern. On the rare occasion that queries arise, these issues almost exclusively concern contributors desire to strengthen protection on their content, rather than making it more re-usable.

Is unauthorised "commercial" exploitation a real concern for taxonomists?

Within the Scratchpad project breaches to the Creative Commons licence have been reported to us, but these are rare and have only concerned issues of attribution where substantial amounts of content have been involved. In the two cases where we intervened both were resolved on satisfactory terms mutually beneficial to both parties. However, we are unaware of any illegitimate commercial exploitation and this is not surprising, given that we would not necessarily be contacted and do not have specific mandate to intervene [content on a Scratchpads is owned by the creator and many creators are unaware of the Scratchpad infrastructure they are using]. Outside ViBRANT activities we are aware of commercial exploitation of taxonomic material, both authorised and occasionally unauthorised. In most cases the amounts of money are small and insufficient to support the full economic costs of production. Furthermore, in virtually every presentation on the Scratchpad project, the issue of copyright is raised by potential contributors, and the non-commercial limitation is given as a reassurance as part of their incentive to engage with the system.

We are the makers of manners…

One view is that the Scratchpads and ViBRANT are big enough and have enough credibility to drop the NC provision without disincentivising contributors to engage. It has been argued that doing this would act as a benchmark for other initiatives to follow. Beyond a few anecdotes we have no data on how important the NC provision is to contributors, or how it incentivises engagement. ViBRANT’s success metrics are based on user engagement; therefore it would be risky to drop the NC provision without a better understanding of how this impacts user perceptions. At the very least ViBRANT needs some credible response to contributor's widely held concerns in this area. Furthermore, the perception that NC does permit a wider range of activities than a strict definition of NC might otherwise allow does seem to predominate, as is born out by practical evidence of how Scratchpad content is being used. Indeed, many of the most vocal advocates for dropping the NC provisions are often breaking much stricter copyright and databases laws in their own projects, with full knowledge and tacit permission of the rights holder. This is because what they are doing is in the spirit of why the data was created, event if it is not strictly permitted by the letter of the law.

Next Steps

An underlying goal of the Scratchpad project was to move the taxonomic community to a position where they feel more comfortable to share. This requires a series of technical and social interventions that firstly made taxonomic content more accessible and secondly made taxonomic data more reusable. One view expressed by Rod Page was that EDIT/Scratchpads helped achieve this first goal, and that the ViBRANT project is about moving the community closer to the second, i.e. ViBRANT is about sharing for explicit reuse. To this end there are several things the ViBRANT project and other interested parties might do to mover the agenda forward:

1. Studying attitudes and perceptions: Our sociological workpackage within ViBRANT could gather data on the perceived role of the Non-Commercial provision in incentivising engagement by taxonomists and institutions. If the attitudes to NC suggest the provision can be dropped, this would pave the way to a more open system that would (for example) facilitate the free flow of information into systems such as Wikipedia.
2. Making the case for being open: The informatics community have done a good job of making the case for being more open, but the case for dropping controls like NC has yet to be made to the content creators and their employers whose business models are wrapped up in the values surrounding the content they generate. Much of the Twitter discussion felt like the potential users and re-mixers were shooting the messenger for conveying a message from the taxonomic community that the re-mixers didn’t want to hear. At a project level those in the Scratchpad team understand the merits of dropping NC. But likewise we also believe the wider community is unconvinced, and if we push that community too far, and too soon in pursuit of this secondary goal, we will jeopardise our primary goal of making taxonomy and taxonomists more accessible. Given that the status quo (or the perception of the status quo) permits the kinds of re-mixing that the re-mix community want, we are all going to have to do a much better job of making the case for dropping provisions like NC. In this case it's not just about a strict definition of the law regarding NC, it is actually about what we do since this eventually because our interpretation of the law. Right now the NC provision is in 67.5% of all Creative Commons licences issued (http://wiki.creativecommons.org/License_statistics). This suggests we have a long way to go.
3. Making it easier to choose other licences: At a practical level, within the Scratchpads and associated ViBRANT projects we could do a better job of allowing users to choose different licences for their content, and explaining the implications of these licences to contributors. As part of the redevelopment of the Scratchpads within ViBRANT we will do this. Depending on the results of the sociological research we might also drop the NC provision as the default choice. However, giving people more of a choice also means we have to live with the consequences, and that might mean users impose (should we let them) even more restrictive licences on content that would have otherwise been the case.

We welcome further comment…