Button in B&W

I’m able to use this particular image as CDM is itself under a Share Alike license. Photo (CC-BY-SA) Andy Melton.

I have no problem with copyrighting music. So I’ll be blunt: my ongoing impression of Creative Commons licensing is that you should either choose a license that allows for commercial use, or opt for traditional copyright and licensing. The popular “non-commercial” restriction is problematic. It does too little to prevent exploitation, and too much to prevent exactly the kind of use that’s the reason you’d choose CC in the first place. That’s not an effective compromise; it’s more like a lose-lose scenario. If you really want people to ask permission to use your work, you can use a standard copyright. (You don’t even have to do anything, under US law.)

Latest case in point: the CBC.

An off-hand comment on the (excellent, by the way) Spark podcast suggested that management had instructed producers to stop using Creative Commons-licensed music. After a blog post by Michael Geist, the story has spread around an angered blogosphere. Some even interpreted a later comment to mean the whole thing was the work of CC opponents, through licensing deals that explicitly forbade CC. (Don’t get excited yet – it seems clear that’s not what happened, and those organizations wouldn’t be able to do that even if they wanted.)

Let’s skip straight to the point. Techdirt’s Mike Masnick got the bottom line of this one, which is that CBC eventually gave up on CC-licensed works because of the prominence of non-commercial restrictions. They note this comment from CBC’s Chris Boyce:

The issue with our use of Creative Commons music is that a lot of our content is readily available on a multitude of platforms, some of which are deemed to be “commercial” in nature (e.g. streaming with pre-roll ads, or pay for download on iTunes) and currently the vast majority of the music available under a Creative Commons license prohibits commercial use.

In order to ensure that we continue to be in line with current Canadian copyright laws, and given the lack of a wide range of music that has a Creative Commons license allowing for commercial use, we made a decision to use music from our production library in our podcasts as this music has the proper usage rights attached.

That seems to me to sum up the story: whatever the wisdom of CBC’s solution, this is a failure of the non-commercial restriction. And that should hardly come as news to anyone who has followed the problems with “NC.” It’s a Saturday, so consider this a hastily-devised rant rather than a fully-researched story. But I’d like to see a more productive conversation start on this whole issue, so I’ll kick it off by sharing my own thoughts on this.

Here’s the problem. The whole idea of Creative Commons licensing is to provide a blanket license before someone has to ask permission. By streamlining the process in this way, the goal is to get wider distribution and reuse of your work. And as everything from samples to Flickr images can demonstrate, it works. Now, naturally, wide distribution will also raise fears about commercial exploitation, and as with any license, you’re the owner – you can provide whatever restrictions you like. People want to share, but they don’t want that sharing to be abused. I think the impulse to look for some sort of “some rights reserved” is a natural one. Unfortunately, using non-commercial restrictions as the solution can create more problems. The non-commercial rules are vaguely worded, implying a very broad definition. It’s never properly defined, and no one really knows what it means. The net result is that works with the restriction attached aren’t free for use. You have to err on the side of caution; if you think there’s any chance you may be violating the license, you shouldn’t use the work.

That’s the crossroads I reached on this very site. Chris Randall of Audio Damage and Analog Industries, who has released a significant amount of CC-licensed music, pointed out to me that CDM was blatantly violating the intent of the non-commercial restriction. Sure enough, I came to the same conclusion, as a survey undertaken by the CC folks found that many of the people using the non-commercial restriction considered use on a site with advertising revenue to be commercial use. CDM readers and Flickr users protested. But it doesn’t matter: I now almost exclusively use works without it, to be safe.

There is more to this story, though.

CBC ought to be able to use CC music. CBC is clearly overreacting if they’re avoiding all CC-licensed work. There is work out there that lacks the non-commercial use restriction.

…but the onus falls on CC advocates to face the non-commercial problem head-on. It seems to me that it’s the responsibility of the CC-using community here to point to work that lacks this restriction, and to build tools that make those works easier to find. (The checkbox pictured here is a great place to start.) It’s also about time to have a serious discussion of the non-commercial restriction, not just in the definition itself but, holistically, why people do want to reserve “some rights,” and how to define those rights. That conversation should be a frank and open one. Commercial exploitation is a real threat. It’s an issue brought up by CC users, by CC advocates, and CC critics alike. It’s something obviously all of us are thinking about. But we should separate the three dimensions of it:

1. A hypothetical problem — the potential exploitation of work in ways that CC users don’t like. (And that means we have to determine what kind of hypothetical exploitation has people scared.)

2. A real-world problem. (There have certainly been instances of what people might consider exploitation, both of copyrighted and CC-licensed works.)

3. A number of potential remedies — of which adding a “non-commercial” CC license is only one, and possibly not even an ample remedy for the kind of exploitation people want to prevent.

Some of the blame I think does fall on CC the organization. They used the non-commercial clause as a way to say, “hey, you can distribute your work for free and get paid by requiring licensing.” You can have your cake and eat it, too — or you can give away your cake, but also sell it. The realities of making that work are much messier than they admitted, and at the same time the organization sent mixed messages. “Here’s the non-commercial clause, which is a remedy to this problem you’re worried about. Oh, but we don’t think you should use it. And actually, we don’t know what it means, so we’ll have to do a research study.”

It’s time to clean up that mess and remedy the problem.

CC users should consider Share Alike. This is a much, much longer conversation, so let me simply quote the plain-English description of Creative Commons’ Share Alike principle:

If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.

Unlike the description of non-commercial – there’s never actually a detailed description of what constitutes “commercial” use — Share Alike is very clear. Anyone using your work must license whatever work they make.

Yes, this is an issue for open-source hardware, too. I won’t go there today, because hardware incorporates other issues. It’s tangible, and that means legal licensing is different. The problems of interpreting the definition of “commercial,” however, remain, and there’s a threat that open source hardware makers will recreate some of the problems with Creative Commons-licensed media in the hardware domain by modeling their work on the same license. Consider the can of worms opened, but I’ll deal with that in a separate story.

The podcast’s great.

Anyway, go listen to Spark. It’s a fantastic podcast:
Spark October 3-6

And CC or not, speaking as a journalist here: if you want your music shared, send it to media outlets with an explicit license, CC or otherwise, making it clear they can use it however they wish. If publicity is valuable to you, it may be a worthy investment. (I’ve seen what publicists and PR people charge. “Free” publicity isn’t worth zero; that’s for sure.)

Thanks to Myles Ashley Borins for the tip!

Update – for our Canadian readers:
If you’d like to clarify the CBC’s policy, podcaster and producer Lily Mills tells me via Twitter that Canadian citizens and journalists can submit a formal request for information under Canadian law:
Access to Information Act

(CDM, as a US publication, is unable to do so.) If someone would like to volunteer to do so, shout out in comments. I think it would be useful to know the formal policy and reasoning from CBC.

  • TheAlphaNerd

    Thanks for the response… it is truly a tricky situation… but at the very least it is amazing that we are having these discussions. It is only through debate and engagement that a real solution to the problem of independent licensing will be found.

    Also we should find it inspiring how many individuals there are that this issue matters to.

  • The Non-Commercial clause is not about publicity, it is about the film student that wants to be able to have background music without being sued. Everyone else is to use the traditional route.

  • @chunter:
    "You may not use this work for commercial purposes."

    Okay, that's utterly meaningless. It's a restatement of the same thing. So let's look at the legal license:
    "You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works."

    So, great. You can upload it to a torrent site, let THEM run ads against it and make money, but the film student who shops their movie around to some film festivals or the blogger who has Google AdSense (literally, read the survey) is out of luck.

    Oh, and the word "primarily" is incredibly problematic, too. What determines the primary goal?

    Now, of course, that film student could try to license the work from the artist. But that only proves the point — why not simply use traditional copyright, if you're going to have to get a new license anyway?

    And CBC is correct here, by the same reading. They can't run the program against ads, just as, according to the same rules, neither can I. With so much stuff using ads as a revenue source online, CC NC is basically useless. Anyone using it may simply be kidding themselves.

  • TheAlphaNerd

    My original interpretation of the NC was that it stopped people from taking the work and using it directly for commercial gain… like taking a bunch of your tracks from soundcloud, printing cd's, and selling them.

    I never once had a problem with my work being hosted on a site that had advertisements that brought in a profit.

    But of course one has to look at the legalese, and obviously that is the definition that will be taken at face value in court.

    So obviously we need to find the right legal language to say "Hey please use our stuff, but don't publish it without our permission"

  • @TheAlphaNerd: but what you're describing *is* the ShareAlike principle. And if you don't want people to publish your stuff without permission, you really shouldn't use CC – not in the age of the Internet.

    If CC users had spoken out and said, you know, sites with ads are okay, that might have been different. They could have called that out explicitly in the license, the way they do with torrent sites.

    But right now, according to the license, PirateBay is following the rules, and CDM and the CBC would be breaking them. Seriously. That's what it says. And users surveyed in the CC *overwhelmingly* opposed any use on sites with ads.

  • Here's the legalese for ShareAlike:
    "You may Distribute or Publicly Perform an Adaptation only under the terms of: (i) this License; (ii) a later version of this License with the same License Elements as this License; (iii) a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., Attribution-ShareAlike 3.0 US)); (iv) a Creative Commons Compatible License."

    So, Alpha Nerd, it's what you're saying.

    What non-commercial is saying is basically, you can't use it. You can use some narrowly-defined "non-commercial" uses provided there's no income and no advertising, and you can torrent the thing, but that's it.

  • The trouble in cases like the CBC, a share alike clause will be anathema to them as much as a non-commercial clause will be.

    I've had mixed feelings about CC licensing. I recently moved back to using one, only because that's where my core audience is, for the most part. People who listen to/replay my stuff all tend to be involved in CC-licensed ventures. And I like the idea of making it easier for someone to use whatever they like in that cartoon they want to post to Vimeo.

    But really, it's just a feel good clause, accepting that people on the web aren't inclined to get your permission anyway, CC-licenses just absolves them of any guilt as long as they give credit where it's due. I personally don't have problems with commercial use, and allow for it with my licenses. I figure I have no clue how to monetize my work, more power to anyone who does.

    But I think it's the sleazy TV producer scenario that is the kind of commercial use people would have problems with, where for example the local news somewhere uses your music without paying and (usually) without credit. The trouble is, those kinds of people are often inclined to rip you off anyway, and I've heard many such stories from musicians, regardless of any licensing scheme they used.

  • if the film studet isn't being paid by the adsense ad, I would continue to have no objection to the use. Perhaps what is needed is better language for what "non-commercial" means.

    CBC's choice is not a loss to me. I'm not trying to get on CBC, and I don't think they're interested in my work. It would mean a lot to me if someone would torrent my work.

  • In the past, I heard someone raise this issue as, "What if I wanted to play one of your songs at a party that charged cover?" to which my reply was that the BMI license takes care of it, but I think it's safe to say the language in the clause is a bit too strict.

    i just want to reiterate that I think that this is an issue that can be resolved by clarifying the non-commercial clause, and despite the perceived shortcoming, I prefer to continue using it for the time being.

  • Well, correct, even modifying the NC language to make it more explicit would be a step. I'm saying use SA because I think it's clear, it's an issue that's generally easier to understand (either someone uses a compatible license, or they don't), and it's available now. I'm generally in favor of using the best available solution.

    But I'd also like to see a discussion that involves trying to improve NC's language, not just surveying people about it, and that is why I brought this all up.

    Steve H also does raise a point, which is whether CBC could use the SA license. That would require more research, I think.

  • I don't know much about this stuff, at least not more than the average nerd, so thanks Peter for such an intelligent post, and to everyone else for the valuable conversation.

  • EvJ

    Peter, if I can ask about your objection to the use of CC work on this site, how much material do you actually host yourself, and how much is just links to artist's material legitimately hosted elsewhere? I see lots of Soundcloud and Vimeo links here, but very little indication of material on your own servers. Is CC (NC) really preventing you from accessing music, and if so, how hard would it be to obtain permission from the artists?

    On the topic of CBS, it's just a case of them running an office to secure broadcast permission the same way they must to ensure royalty payments of copyright music, which will doubtless happen as soon as CC becomes a significant part of the broadcasting world. The NC stipulation will have to be in place to allow some derivative work, like youtube mashups, but not others, like soundtracking a party political broadcast. Permission is the key.

  • @EvJ: That's a whole other can of worms. Theoretically, though, whether the file is hosted there or not might still count as "use" if the image is embedded. An exception I've made is something like an embedded Flickr gallery. For instance, the CDM image pool appears in the sidebar, and you get images in embedded slideshows of whole galleries or keywords. There, presumably you're covered by Flickr's license of the images themselves.

    How hard is it to obtain permission — often, not very hard. But that returns to the original point. It's no easier to obtain permission for the CC-NC media than copyrighted media. So I question whether what people really want is CC — or, in fact, just traditional copyright. Copyright does not preclude sharing, remixing, etc., with permission.

  • Hi Peter,
    If you remember my comment when the "flickr issue" arised the last time I pointed you that CC is only a "fix-patch" inside broken system.

    The problem is copyright and patent laws preventing technology evolution.

    If you want to share without make money put a GPL license.

    If you want to share taking profit put a OSHW license.

    If you don't want to share, don't share, don't use internet and go into a ghetto for playing saxo inside a smokeroom 😉

    People has a problem trying to adapt "old fashioned elite rules of the material world" into "new virtual emerging conscience net".

    It is jokerish: Imagine two neurones preventing one against other to share thoughts and imagine where we finish as a Human Specie if we put an step forward.

    Revolution? Evolution?

    Time to re-think rules.

  • @Mudo: I don't know what "technology evolution" the current crop of copyright and patent laws is preventing. The problem is that neither do you. We see this a lot in the context of discussions about Creative Commons in particular and copyright in general, and it is pretty much a textbook example of a slippery slope fallacy.

  • Share Alike is powerful for another reason…it's the one that explicitly allows for derivative works and remixes. It is almost odd that the remix and the "I'll let you use it if you'll put your stuff out under the same license" are lumped into one checkbox, but they are.

    I called out Cory Doctorow once for being pro CC, and pro fan fiction, but not allowing for non-commercial derivatives of his own CC released novels.

    So then the question becomes, is Share Alike too broad? Does it need to be split into two parts, one for remixing & derivative works, and one that limits the license that such works are released with?

  • @ChuckEye: I believe that's because *all* CC licenses provide for remixing, unless you explicitly choose No Derivatives. So am I missing something?

  • @Chris

    Planned Obsolance is slowing performance in develops excusing itself in "rentability" but enviorement issues like Mexico's Gulf are not listed in these "finantial gains".


    Of course if you are arguing about "copyright" vaccine's (remember the flu terror?) and so on… ok, I'm lost sure.

    Copyright and patente laws MUST defense creators but how many money is going to them from RIAA and so on?

    Another example:


    All these "contradictions" are caused by controlled knowledge by elite and is this elite who try to maintain these situation.

    Actual globalized world require true (direct) democracy rules and voices are emerging.

    SGAE (like RIAA in Spain)

    This is not separate things, we are in a globalized network world.


  • Whoa, let's not drag patent law into this discussion, before anyone else does… two *very* different issues.

    Look, you're the copyright owner. You, and you alone, decide what to do with your copyright. That's the part of this whole system that I think really *isn't* broken. And those rules were fought for by people who actually make stuff. So if you have an idea what you want done with your work — including if you want people to be free to use it how they wish — you can use your copyright to give whatever rights you like.

  • Tom

    I actually use that clause as it says: You can have my stuff but not make money out of it. Particularly not use it for TV advertisements (which has happened). So if you are a student, you can use it. If you enter a festival, you come back to me, start a conversation where I can see what is up and make you a new license. You know, two people talking.

    That saves my time as most people aren't going on to the next step, and if they are going to use my stuff on an Adsense website well, let's divide their tiny income by the proportion of it earned via my stuff and it would waste my time to come after them.

    So much of finance is acceptable risk. I accept CC as saving my time in writing letters of agreement for everything, and instead just those things that actually make more than a few dollars.

  • J. Phoenix

    The root problem seems to be the vast variety of potentially "commercial" applications…from ad-based revenue on 3rd party websites, to audio/visual synchronization, to outright stealing someone else's work, claiming ownership, and making money from the work.

    Its the latter that's on my mind when I think "non-commercial"–I don't want my work being claimed by someone else without attribution and benefited from monetarily.

    A primary example would be someone making and selling CD's of my work without my knowledge, or someone appropriating my track for the background of a car commercial.

    However, I understand that media relies on advertisement.

    Coverage of my work benefits both myself and (hopefully) the media covering me as well. I might not agree with corporation's ad on the opposite page or the sidebar, but hopefully the level of exploitation is mutual at best.

    Basically what I'm trying to say is that refining the definition to include media/broadcast possibilities while attempting to block work from being benefited from in the physical copies/audio-visual synchronization side.

    Some sort of compromise has to be made along the line. My hope is that CC does not become unappealing to artists because media is forced to restrict their access.

  • I am currently a happy cc-by-nc-sa user; that said, this article is the first thing I've read that has made me reconsider licensing in a serious way–great persuasive work! I'll have to think about all these issues and see what the future brings…

  • Greg

    Anyone who puts artistic material online expecting to receive revenue directly from that material is kidding themselves.

    Public domain it, write it off as promo for performance or tangible products like fancy vinyl LPs.

    Nobody gives a shit about copyrights – on their material or others'.

    I sure don't, nor do the vast majority of artists I work with.

    The problem remains that the amateur artists (especially musicians) are starting to compete with the pros in making worthwhile art, and the amateurs don't give a shit who has or how they modify digital copies of their work.

  • Greg

    *nor do they have any incentive to clear samples or what-have-you.

  • I have used the NC Share-alike license in the past for various art projects/source code, but not to necessarily inhibit the project for purposes of reporting, educating, or even modifying – but just to keep the project in the "free" (as in monetary) domain so people wouldn't charge for derivatives. Admittedly, my understanding of the license wasn't as clear as it should have been. About two months ago though, I was sent this article which enlightened me further on the subject: http://freedomdefined.org/Licenses/NC I think perhaps why NC licensing is so popular is the assumption (as Peter Kirn points out in the article) that it provides some sort of control over what will happen to your work, whereas it obviously complicates matters further – if the results of applying such a license to your work was made clearer, perhaps we might notice a significant drop in projects using it?

  • I've been releasing my music for a couple of years under the CC BY-NC-SA and Peter's flickr article made me switch to By-SA, yet I still deliberately release some stuff under NC clausules. I came from the demoscene background where almost nothing is licensed, everything is frankly some sort of "underground public domain" and people don't seem to care.

    A few weeks ago I discovered here the excellent Making The Noise album in CDM and gladly paid for it (a CC BY-SA piece). I think it's mainly a exposure/abuse thing, and as Steve H pointed, "sleazy" people willing to rip other people's work off will do it regardless of licensing schemes.

    My particular question to the thread is:

    Could CC BY-SA material be used, either hosted or embedded, inside such a deliberately strict site as Facebook? (when I use "strict" I mean Facebook owning any material posted to their servers, even after it's removed)

    Maybe it's far from the thread subject, but I'll appreciate anyone's point of view on the matter

  • "Public domain it, write it off as promo for performance or tangible products like fancy vinyl LPs." (Greg)

    But isn't that the exact fear many artists have? That somebody else with production and advertising muscle sells your stuff in product form (tangible or not) and you don't see a dime? I always had the impression, that that is the main point of the NC-clause. Am I wrong?

    Maybe it would help to make two basic distinctions of "commercial":
    a) creating a product and selling it.
    b) broadcasting, synching, etc, that creates some kind of income.

    In september, three guys presented a basic concept for a CC Collecting Society at the all2gethernow in Berlin. Maybe something like that is the missing link.

    @Peter: let's say you could pay a flat-fee of x% of the revenue of ads to a "CC photo collecting society". The archive of that CCCS is somehow linked to flickr and other platforms, and presents a sub-archive of nc-photos of artists that are members of that society. You mark the photos in that archive that you use on CDM. There are statistics gathered already on how often the page is viewed, which "just" needs to be transmitted to the archive. These statistics are later used for distribution of the money.
    Would you use that? Wouldn't you actually *want* to give something back the artists? Or would you continue to use non-cc photos?

    I'm very aware that all of this is not coded and initiated in a weekend. I just tried to keep the concept as simple as possible. It's imho more a problem of linking relevant parts of data which are collected already…

  • @Fabian: What you're describing is the way that CBC licenses the rest of the music for the podcast — i.e., it's copyrighted works with a blanket license.

    So, I don't understand. What that suggests is this:

    "Let's come up with a system by which the creator of works restricts the use of that work elsewhere, in order to protect their rights to their creation. Those wishing to use the works can do so by paying a license fee to the creator."

    That's conventional copyright with conventional statutory licensing. And like I said, I have no problem with it. It just defeats the purpose of calling it "CC." If it isn't actually broader, then there really isn't a point. CC *is* a form of this idea — it's a statutory license for copyrighted works — but if it's only meaningful and useful if it's clear and broad.

  • aaron

    One of the main issues to me would appear to be the amount of individual contacts that would have to be made to often poorly identified musicians and artists, to use in a commercial manner.

    In this regard it would be nice to see a CC supporting site for NC, to act similarily to a clearing house or register for contacts.

    Use use CC at all if you use a NC version? Simple, aside from the Commercial control… you can control the types of free-usage allowed, which can be just as important.

  • Right… and now, assuming we're talking music, we're describing ASCAP, BMI, et al.

    Seriously, I'd put it another way: what's so wrong with conventional copyright and a blanket license that you'd want to reinvent the wheel in that fashion? What's the advantage of CC in those cases?

    It's not that I don't understand the appeal of NC; I do. But it makes me wonder why people aren't considering just keeping their work copyrighted. For images, for example, there are already marketplaces that allow you to license images cheaply.

  • @ Peter: Thanks, I see your point. @aaron: agreed, and as I understood it, that was were the idea for a cc collecting society came from – besides german GEMA boycotting CC completely.

    I have always seen CC-licenses from a private sharing point of view first. So on the low end, I want people to be able to give my music, photos etc to friends – and "friends" is a pretty broad term on the web. Please correct me if I'm wrong, but traditional copyright does not provide that, right? So CC is broader in that sense.

    Republishing works in an editorial context is something else, because that creates value, which my work in itself does not. Any editor should be compensated for editorial work if he wants to and finds a way, shure. But imho (and I know the opinions are broad on that), that is where the commercial context starts. If my work has its little part in that, it would be nice to see some breadcrumbs.

    CBC is *public* broadcasting, so that would be another special case.

    It's not just about sharing the works "whatever way". If there is value created, *and* that value creates revenue, we should work on a solution to share that money too, instead of cutting that stream completely or putting the whole thing in question. So if CC is the right brick to build a more automated commercial system on top, it makes creating value and being compensated for it easier, which all parties would benefit from.

    But I'm never shure if I even understood the *problem* right, so any input is welcome 🙂

  • No, my understanding is that that's more or less correct. CC is very explicit about allowing sharing and public performance. So, the license first says, yes, you can share and perform under the terms of the license, period. You can copy it, store it, and even sell it.

    Where things change is when you add the non-commercial restriction. CBC is "public" broadcasting, but might well fall under the commercial category, since it's not defined. (Here, I'm totally in the dark on Canadian law. In the US, by way of example, even the museum gift shop you visit is very often incorporated under different, non-public rules, which is presumably the sort of issue CBC raises with some of the new ways they distribute their podcast – as with apps.)

    Creative Commons is pretty clear. CDM — which you say is deriving value from running ads against the content — is considered a commercial use. (That isn't clear in the legal definition, but as since been confirmed by an extensive research survey CC did of their users.)

    File sharing services are explicitly protected by the following clause:

    "The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works."

    In other words, Pirate Bay can run ads against the content and make money, but you can't do the same on your own personal blog.

    But yes, CC-NC would give you the ability to exchange files personally or over file sharing services like torrent, while preserving your right to restrict other usage – remixes, blogs, etc. – that you'd view as commercial. As I've said above, any scrupulous remixer or blogger ought to be disinclined from using your work at all by the restriction, because the definition is vague enough that they won't be sure if they're crossing the line.

    I'm certainly not saying this isn't a useful choice. If you want file sharing, but want to largely restrict other usage, CC-NC is a good choice. I'm expressing caution because what I hear is that people *do* want to allow some forms of usage under NC that are not necessarily provided by the license. And if what you really want to do is cherry-pick who uses your work — which, by the way, is an *absolutely* reasonable choice and your right — I wonder if you shouldn't simply use more conventional means.

  • There's another issue we're obviously not mentioning, enforcement. The open source software community, by which CC was at least partly inspired, has built entire organizations and grassroots lobbying to protect against abuse. CC doesn't appear to have an equivalent, beyond some scattered self-policing by users.

    But that's another reason not to use NC. It's so vague and complex that you really can't assume people will know whether they're abusing your license or not. If Canada's national broadcasting network is confused, that's not a good sign.

  • The Non-Commercial clause in a CC license is hard to use just as you stated in your article, yet it also provides a base on which an artist (I presume artist equals rightsholder, which is not always the case) can define his/her own interpretation of commercial. In other words if you use the NC clause you should define your definition of commercial use in order to clarify your intentions towards those using your work. This might make the situation a bit better and more like the Share Alike clause. Still as someone involved with Creative Commons Netherlands I concur with your sentiment towards Non-Commercial.

    Btw if you do NOT: "alter, transform, or build upon this work" there is no reason for you to offer your work under a similar license. It is therefore my understanding that if you use a work verbatim (e.g. a song used in a film without alteration) the resulting work does not have to adhere to the conditions stated in the share alike clause.

    Note: I am not a lawyer and this is my personal interpretation.

  • @BjornW: right, but derivative works are I believe what concern people regarding commercial usage. If you use a musical soundtrack in your ad for a Toyota, for instance, or grab a picture from Flickr to put into a bus billboard, those are derivative works. You'd need to credit the artist in the ad, and place the ad itself under the same license, as it's a derivative work. The latter is I think what's most unlikely.

    At least that's my understanding. I'm also most definitely not a lawyer. Of course, that is part of responsibility, to do our homework and talk to the lawyers and at least build as good a lay understanding as we can.

  • Vehicle Driver

    I think people are missing the point:

    The CBC is an old-media government-funded dinosaur, who couldn't even compete back in the 80s, let alone in our hyper-media world of the 2010s. Canadians overwhelmingly support government funding of the CBC out of a kind of nostalgic nationalism… it is like a bright red Mountie uniform or the Queen on the money… but Canadians overwhelming don't listen/watch the CBC.

    People build up a following elsewhere, and if you build up enough buzz in the real media, the dinosaurs at the CBC might notice you. The CBC not accepting Creative Commons licensed music is less the CBC hurting CC artists, and more a symbol of the CBC become even more irrelevant. People should be outraged as Canadian taxpayers that the CBC is so backward, but artists shouldn't be forced to adhere to a dinosaur concept of intellectual property in order to appeal to a dinosaur model of media.

  • @Peter: you're definitely right about the enforcement, which is no different to the problem of enforcement of traditional copyright. It needs money – something a collecting society could provide.

    Regarding Pirate Bay: they're not creating any editorial value. The ads are run against "putting up a distribution channel", not specific content in specific context. Different with any blog or podcast.

    Also I have worked for a public broadcaster some years ago and to be frank, I wouldn't give too much about their confusion. They just make sure the're on the safe side, and… they are still filling out paper forms by hand and have them delivered by people to the next floor 😉

    In general:

    I think my problem is this: just because there is no solution about the NC clause *yet*, doesn't mean we cannot build it. Much of the confusion – like with scrupulous remixers or bloggers you mentioned – comes from not too many years of experience with CC and NC in the form it has now. The licences themselves had three main releases in just eight years. So I guess I just find it a little harsh to use the status quo as an argument to discourage people from using NC, or even CC in general if they have NC intentions.

    And building a solution to make NC usable and valuebale for all parties involved, would of course need all of us to make steps towards each other. For example: you have a photo, that is NC and you want to use it on CDM, but the photographer is not a member of that collecting society. Then you ask him to join there, because then you have an easy solution to use his NC picture the next time – or an hour later because he is quick. If he won't join, well, it's his choice. As soon as CC-NC artists see that there is money coming out of that pipeline (and little is more than zero), they will be more inclined to join, which then gives producers and journalists more content to choose from for commercial use.

    And while there could be general solutions for public and private broadcasting, advertising products or services makes only sense on a case-by-case basis in the first place imho and should in no way be automated.

    The guys presenting the concept for a CC collecting society made a very interesting point: predefining what is commercial and what is not, will probably not work anyways. So they won't do it. They are proposing some kind of arbitration board, which will use the cases that come up to build the definition over time. And instead of sucking CC any more into that expensive system of lawyers and lawsuits, we work on the assumption of good will and see where it goes.

    Maybe we can agree, that building a NC solution would be a greater benefit for all than dismissing NC. Time is not an issue given the lifespans of collecting societies. If we need ten years to build them, so what? I would like to see this as an experiment we can all participate in, instead of having regulatory definitions coming out of theory and then work contradictory to the intentions of CC, the artists or producers.

    To sum up: I would prefer CDM to have the choice of NC-pictures too, without more hassle than a few clicks. If it was for me, you could decide yourself if how big the percentage is you share from your ad-revenue.

  • flonk

    With so much stuff using ads as a revenue source online, CC NC is basically useless. Anyone using it may simply be kidding themselves.

    I don't get the anti-NC sentiments at all.
    As a NC user, I don't want other people having ad revenue with posting my music/pictures. I don't see why this is considered as some kind of funamental right here. If you use ads, then licence stuff properly (i.e. conventional copyright). NC means, if you do something just for the love of it, you are free to use it. This is actually very valuabe imho.

  • gbsr

    so whos CBC then?

  • spinner

    Kind of agree with @flonk here….. Although a discussion around this subject is always welcome the onus in this case is on the user and not the originator….
    If you have ads on your blog et al then contact the creator and pay a proper fee for using her material….no?

    One problem here is that there is, as far as i know, no established way of collecting royalties of blogs…..?

  • aaron

    Seems like someone should throw out a reminder that entities like ASCAP, BMI, GEMA, etc. are evils from a relic age that alot of people want nothing to do with anymore.. hence the rise of alternatives like CC itself. In a discussion about the PINTA that CC/NC can be, it seems like the reason for it's existence as a alternative should be part of that conversation.

  • Greg

    "There’s another issue we’re obviously not mentioning, enforcement"

    I just did. You can't enforce CC. The minute something is put online or on the radio it might as well be public domain.
    Expecting these laws to do much besides give grounds to harass small-time DJ/producers is silly.

  • Greg

    "The CBC not accepting Creative Commons licensed music is less the CBC hurting CC artists, and more a symbol of the CBC become even more irrelevant."

    Clear Channel doesn't broadcast CC licensed music.

    Y'know, that irrelevant Clear Channel?

  • @aaron: I googled it, but what do you mean by PINTA? Is that "solution"? So do you consider *any* collecting society evil by design or would you agree that we can make a transition from wood wheels to tyres – or even a flying car? (@Peter: sorry for the little pun here, I missed that comment earlier while typing…).

    @spinner: try doing that for just one podcast with NC material 😉 Then imagine a broadcaster working out clearing with each artist…

    Percentage-based flat-fee collecting works pretty well: the producers are on the safe side, have no hassle except reporting, can access a huge body of work – and the artists (besides not having any negotiating hassle either) are actually participating in any success the broadcaster has moneywise.

    But maybe I'm too focused on pushing that idea. GEMA's CC-boycot is a specific german problem, and german artists could of course "just" choose another European collecting society that allows CC. What you would still be dealing with, is a system based on circumstances which changed completely during the last decade.

    @Greg: aren't we talking about the NC clause?

  • @Greg: Huh? If that were true, anything printed to paper would become public domain. (And, indeed, as music publishing exploded, that's exactly what happened, before the creation of copyright laws intervened.)

    @flonk: I'm certainly not saying I have a "right" to use works. I'm saying quite the opposite. There are creators setting out to use this license with specific expectations in mind, and those expectations aren't often met.

    And from the publisher's point of view, the license is often simply hard to understand. Anyway, I'm obeying in most cases the letter of the law as regards CC. There are sites that advocate CC that aren't obeying non-commercial as you define it. This *is* enforceable — I mean, someone could protest. There's some kind of disconnect. People are protesting and those sites are ignoring them, in practice people who use NC licenses don't care that they're being used on ad-supported blogs, people aren't aware their own NC-licensed images are being used… or some combination.

  • TheAlphaNerd


    I understand your sentiments regarding blogs with ad revenue… but there are bills to be paid (webspace development, hosting fees, hookers + blow).

    It is a nice sentiment to imply that there should be no profit gained through the use of your media, but things do grow over time. I highly doubt that CDM was a business venture for Peter Kirn. In fact I doubt the income of the blog provides him enough money to not have to do anything else (if I'm wrong then Peter is ballllllllin).

    But when you have readers you have bandwidth usage, and with more bandwidth usage comes more expenses, and with more expenses comes a need for an income stream.

    Perhaps a line needs to be drawn in the sand as to the types of businesses that are able to access certain material… perhaps we could have another CC clause stating that the material can only be used by small businesses.

    Or better yet perhaps there needs to be clauses to allow usage for particular media… blogs +podcasts ok! Television NO!

    Anyways the whole rant aside, I think one of the larger obstacles we are going to see dealing with NC is the high horse that a large number of its users are sitting on.

  • aaron

    PINTA: Pain IN The Ass. I suggested something akin to a CC-based collection society earlier, so yes I want to see evolution. What I don't want to see is futher greed, control and power associated with such a entity as is the current situation by all groups. But if it's not monetized, then how can they afford to tear off knee caps when people break the rules?
    ASCAP and GEMA are nothing more than legalized Mafias and even modern ideas for open alternatives are just as equally scary in an Orwellian sense.

    To pose the real question and not a formed opinion: Why deal with them at all? So we can feel "professional"? Protected? Art survived and STRIVED in the periods before any of these exists, why not get rid of them? Who says that they protect your ability to make a living? I bet the opponents were saying the direct opposite when they were in formation.

    TAN: Using CC does not disable your legal right to other license and forms of control. Many of those that use NC, yet deal with commercial licensing have written contracts waiting in the wings to use when needed. At the Netlabel I ran everything was NC, but we still sought out commerical licensing for their use in games/tv/software/movies, etc… and it was quite easy. A netlabel that operates in a manner like this shows the worth of what a real netlabel can be. My primary point however is that you don't have to add more and more devisations and clauses to CC, just have your own liscensing structure in tact already for uses outside of general free public use.

  • aaron

    'To pose the real question (..)' should have read 'to pose a question (..)' … big difference ;]

  • Don't forget another part of "old" copyright that still works fine when people want it to; "fair use" means it's perfectly okay to play a part of a song to show people what you're talking about, and clearance isn't necessary for that. If your work is good, people will find out about it, unless you forgot to share it with anyone at all.

    I think the main point made is that NC is for people that only want to stamp-approve the sort of uses that probably ought to be fair uses anyway, without giving up on the old kind of copyright.

  • Greg

    @Peter and virtually everyone.

    The practical conclusion here is that licenses don't matter.

    I can get ahold of, for free, virtually any recording ever made in minutes or at max a couple hours through equipment that costs less than $500 USD, and millions of people do every single day and don't feel the tiniest bit of guilt about it, regardless of the fame or financial status of the artist, and there are absolutely no consequences for the person downloading.

    At the end of the day, that's all that matters.

  • Vehicle Driver

    Greg: Consolidation happens in a market when expansion is no longer possible. Dying media is essentially being bought up by corporate conglomerates, who generate profits by using efficiencies of scale and government rent-seeking on bandwidth.

    I am sure that in the year 1900, having a monopoly on horseshoes would be pretty damn profitable.

  • Greg

    @Vehicle Driver

    Huh? I'm sure record labels (I mean, if you want to call AOL-Time-Warner, Sony, or Universal "record labels") will find ways to make money for years to come.

    Blacksmiths still exist and make a very good living now, if we're working on the horseshoe analogy.

    I'm mostly laughing at people who think Creative Commons matters. It doesn't, because it mostly is getting slapped on work that nobody wants to listen to anyway.

    I mean, the bookkeeper next door who makes 6 hour microtonal drones by layering and frequency modulating his dog's barks can CC his work. Think of all the losses to commerce and the arts if he chooses the NC option.

  • Naturally, you are free to take any liberties you wish with my published work. However, should I ever be granted the privilege of constraining your liberty then I constrain you thus: the liberties you take may not be withheld from those to whom you give my work (or your combined/derivative work), who you must similarly constrain.

  • @Greg: Well, look, there are billions of dollars in secondary licensing fees, billions continue to made in recording sales (which I think is what you mean, not licensing), countless CC works that aren't microtonal dog barks, and artists like Trent Reznor, all of which you've just thrown out the window. I hear what you're saying, and it's worth responding because you're making very, very common arguments, but the generalizations don't hold up. Piracy coexists with a multibillion-dollar industry, and there's just as much s****y music under CC license as there is s****y copyrighted music. And for that matter, one man's useless microtonal dog drones is another man's favorite album. That's culture for you.

  • Maybe what we need is a minimum: "if you are making more than $50 bucks a year through the use of my music/photo, I want a piece of it." Anything less than that, I don't care.

    I know this is completely unenforceable, but isn't that the essence of the "NC" restriction we're all talking about here?

  • Hmmm

    So someone who makes money from the work of others wants them to continue giving him their work for free. Surprising?

    NC licenses *are* the best of both worlds for creative content, which is why (as the CBC noticed) they're so popular.

    They're non-exclusive, so when you release under NC, traditional copyright still applies. Stop thinking of it as "non-commercial use only" and think of it as "traditional copyright plus". In addition to traditional licensing, you're also enabling people to pass around your work with their friends, use it in educational settings, etc. But nothing prevents you from selling it for use in podcasts which make money for other people.

    There's a word for people who do work for others without receiving any compensation…

  • @Hmmm: No, that's bullshit. You're implying that I or others are trying to somehow profit off others' work, and that's simply not the case.

    I've been very clear, but let me be clearer. One scenario I've seen many times over:
    1. Someone makes something they want to share.
    2. They choose an NC license, thinking it'll get their music on a podcast or get their photo on CDM.
    3. They discover that doesn't happen, because they misunderstood the NC license, or it doesn't do what they think.

    It's not the best of both worlds.
    1. Non-commercial use is so commonly misunderstood, many works are indeed used for commercial purposes, against the wishes of the people who use them. I happen to be more careful.
    2. Publishers and authors alike are currently so confused by where the line is, that neither of them can use the rule the way they want. That doesn't mean there can never be *any* non-commercial restriction — it's common in, for instance, things like game engine licenses — but the CC definition has to be clarified to be useful to many of us.

    I never, ever said I thought people had any obligation to give me stuff for free — never. People are putting words into my mouth. In fact, while I was using CDM as an example, I've struggled with the same questions — and concluded that I will either use traditional copyright for my works, or CC minus the non-commercial restriction.

    I'm also not saying you can't use non-commercial. Not at all. I'm saying that for many — myself included — it has some significant drawbacks. You should at least be aware of those drawbacks before you choose it. If they *aren't* a problem for you, maybe it's a good fit. But I certainly don't feel like I can personally advocate it, for the reasons I keep enumerating.

    "There’s a word for people who do work for others without receiving any compensation…"


  • polly

    I'm not sure if I'm understanding the author of this post correctly, but a lot of the firestorm surrounding the CBC's decision seems to be around some notion that they're not going to play snippets of CC licensed music, which seems to be a misunderstanding of the quote from the CBC, which if I understand it correctly is just saying that they're going to pay to use licensed production music for their production music and honestly that's a good thing isn't it? As an artist the last thing I'd want is for my music to be butchered up in some commercial promo, and not even get paid for it. I actually think they're trying to honor the spirit of CC, which isn't about making work freely available to corporations, it's about letting artists use and re-use each other's work in perpetuity, and stopping corporations from having such control over culture-making.

  • Aaron

    Reviews or features about a NC work, written up and shown on a 'commercial' site that runs ads for 'profit' does not make the usage of the works commercial. Is that some of what you are implying? Editorial and Promotional usage is clearly fair use and desired by the authors. If this is your case against not displaying NC works on CDM I think it could use some revisiting..

  • "The empirical findings suggest that creators and users approach the question of noncommercial use similarly and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising – at least until specific case scenarios are presented that disrupt those generalized views of commerciality – there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial."


    Note that this is a definition after essentially a research survey, not a legal definition. But you can read the results.

    The response from CC users was overwhelming — sites that have ads, period, they considered non-commercial.

    The absence over a year later of any additional clarification in the definition isn't encouraging, either.

  • And no, it's not "fair use" — not in the definition of US law, not in any remotely explicit form of the Creative Commons document, not in the opinion of overwhelming majorities of people surveyed in the study above, not in any description used by Creative Commons the organization, and not in the opinion of the number of commenters above.

  • TheAlphaNerd


    I think that there needs to be a line drawn between actions that are being done for the purpose of sustainability as opposed to those that are clearly profit driven.

    I find it humorous that people are so worried about things being "commercialized" that they would not want their content to be seen by the web masses.

    I could understand people with an NC clause on their work having a problem with their stuff ending up on a large corporations website, or perhaps a blog that is part of a larger conglomerate… but to expect the writers and content distributors to not try and cover their expenses is ridiculous.

    As well, if the material is simply hyperlinked or embedded, rather than actually hosted on the original server needs to read up a bit on copyright/libel laws related to hyper linking.

    If you want a bit of a background check this out


    The internet as a whole works on the foundation of hyperlinks… and if you want to claim that someone is violating a NC license by hyperlinking your content you are essentially supporting internet censorship. While I will admit that is a very harsh statement, the legal ramifications of such an argument create a slippery slope that could end poorly for an open web.

    Whatever the case may be, I think there is a serious need to question who these people were that the CC interviewed… because it seems to me like they were fairly stubborn close minded individuals to me (and I bet they all think they are fairly forward thinking).

    At the end of the day our world runs on dollars and cents, and if you want to be a person who makes stuff in this western world of ours you need to be willing to spend some money. It should not be in any way held against those individuals if they can turn a sustainable entity into a profitable business.

    "Why enter this closed society and make an effort to liberalize it when that's never been its function? Why not just leave it and go somewhere else?"

    Jerry Garcia

  • TheAlphaNerd

    "As well, if the material is simply hyperlinked or embedded, rather than actually hosted on the original server needs to read up a bit on copyright/libel laws related to hyper linking."

    should read

    As well we need to consider the difference between the material being hyperlinked or embedded, rather than hosted on the original server. I highly suggest those having problems with Peter Kirn embedding their NC sound cloud material to read up a bit on copyright/libel laws related to hyper linking

  • Human Plague

    In the 90s people ignored copyright, sampled everything, avoided lawyers and shit heads, had underground music scenes and good times.

    Occasionally, pop music and underground music would cross paths in a court of law, mostly by way of some hip hop artist getting too big and having to pay royalties after the fact.

    Music travelled by vinyl and demo tape. It wasn't uncommon for someone from the west coast to discover a new east cost band months after the fact, when they toured into town and sold out of the trunk of their car. If I reach into a crate of 90s "techno / hip hop / drum and bass / whatever" I'm sure most of what I pull out will chalk full of unlicensed samples.

    Fast forward to now. I'll leave the description bank except for the keyword THE INTERWEBZ, and the reason I use CC, is basically because I believe it says "anyone who's not an asshole (you know who you are), we're good, right? cool…"

    I guess the actual legal wording and my imagination is way off?

  • flonk


    People making awesome music and nice pictures had to pay for their guitars and cameras too. And they spent a lot of time practicing. But somebody posting it should be compensated for bandwidth?

  • Greg

    @Human Plague

    Yes, your imagination is way off.

    The people who created Creative Commons licenses are lawyers trying to legitimize (i.e. make money off) the art I suspect you're proud has a murky legal status.

    You aren't going to get sampled commercially, nor is virtually anyone else who posts here. Make it clear to other people that you want them to use your music however they damn well please.

  • Pete

    The point that isn't being talked about here is that despite 'the vast majority' of CC licensed music having the non commercial clause attached, there is still plenty of CC licensed music that does not have that clause attached, yet the CBC is summarily banning the use of ALL cc licensed music.

    Why can't the CBC just ban the use of all CC licensed music with the non commercial clause? Every single track at http://magnatune.com for example can be licensed for commercial use. The process is no different than using the http://apmmusic.com site that CBC says it will use.

    I still smell a rat here. The CBC did not have to go this far. There is no reason whatsoever to completely ban the use of CC licensed music.

  • I thought I was doing the internet a solid by making my music CC-NC-SA, but then I started getting emails from internet radio stations and such that said they couldn't play my songs because of the NC and SA restrictions. After reading this article and the long thread of comments, I'm reconsidering strongly. My question is, can I take a group of songs that I've had posted for years as CC-NC-SA, and pull the rug out from under them, now calling them all "all rights reserved"? Does the new copyright take effect, or does the CC license somehow grandfather in?

  • @Tyler: You can simply release as CC-SA, minus NC (or CC-NC, minus SA), but you can't revoke rights you've already released. CC licenses are in perpetuity, with good reason — otherwise people couldn't use your work, for fears you'd pull the rug out from under them.

  • Greg

    "Generalizations," are "inductive reasoning" and you're using "anecdotal evidence."
    "CC music sucks" is a conclusion based on a lot of trying very hard to like music for its license.

    "Trent Reznor and Radiohead make CC albums" is implied anecdotal evidence supporting the claim "CC music doesn't suck."
    They also used the NC license.
    Looks like that's not working for them, huh?
    Besides that, a half-dozen marginally interesting albums by artists decades past their prime hardly supports the case that CC works for musicians.
    Would the people paying hundreds to see Nine Inch Nails or Radiohead live nowadays go to see them without the current marketing and distribution? I think that's a pretty easy one.

  • @Tyler: you can always grant these radio stations the right to play your music.
    The CC-NC just means that they need to have your approval for commercial use, just like they would with "all rights reserved".

    You can always release your the most liberal CC license and lose the NC and SA restrictions. Even if you could, changing to "all rights reserved" wouldn't change a thing for the radio station: they need to ask your permission (aka "get a license from you") to use it in their shows.

  • @Kyran
    The problem I ran into recently seemed similar to the problem described in the article. A radio station releases their shows as CC-NC, but not SA, therefore they've just blanket banned all SA licensed stuff to avoid any trouble, not bothering to seek permission.

    So since I can't change the license on stuff I've already released, if I release from now on under a different license, it seems like it would make my site a quagmire of asterisks and legalese. Does anyone have advise on the best way to make a switch?

  • @Tyler: That's not how I read SA. I believe that the program that's CC-NC is still able to include music that's ShareAlike.

    I'm not sure, so I'm going to ask.

  • @Peter
    Thanks, that would be great to know.
    Also, the more I think about it, if I drop SA (or NC for that matter), it only reduces restrictions on use, right? Could I could drop SA from things I've already released without an issue?

  • @Tyler: Yeah, that's an easy one! You can always *remove* restrictions. You just can't add them.