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.