I have just chosen to allow commercial use of my photos through an appropriate Creative Commons license. This was a rather significant change in my thinking. My gut reaction has always been “I don’t want others to exploit my work and make money off it”. But while this is a valid sentiment with the best of intentions, it utterly fails to capture the complexities of the problem. I did some research and, as often is the case, my new-found knowledge required me to completely change my mind and my conduct. Here is an overview of the problem and why you should allow commercial uses of your creative works.
(Disclaimer: I am not a lawyer. This post is written to the best of my understanding of the concepts.)
It may come as no surprise that I am a stout believer in freedom. I believe knowledge should be freely available to all. I believe software should be freely available to all. And I believe art should be freely available to all.
Don’t take this the wrong way – I don’t mean all art and software. I’m not against proprietary software (though I prefer free software, even though it may lack some features of its commercial counterparts). Neither am I against paying for music, movies, and other art, nor the very idea that artists should be able to make money off their works. It’s possible to pay for software and art and still be a proponent of free (freedom and gratis) software and art.
The thing is, the freedom to use knowledge, art, and software however you see fit, to adapt code and photos and music for any purpose, represents something fundamentally good about the way humans interact.
In Norway, we have a law called Friluftsloven (Outdoor Recreations Act), which safeguard’s the public right of access to the countryside. Many other countries have similar acts. While I’m not the most outdoorsy type, I can’t envision living without a fundamental freedom to experience the nature in my own country on my own terms (within reason, of course).
This is related to a concept called the commons. According to Wikipedia, “the commons is the cultural and natural resources accessible to all members of a society.” A bit further down it adds, “Today, the commons are also understood within a cultural sphere. These commons include literature, music, arts, design, film, video, television, radio, information, software and sites of heritage.”
When you create something – anything – you automatically have an “all rights reserved” copyright on it. But what if you want others to use, share, and adapt your work?
Enter Creative Commons. Creative Commons is a nonprofit organization which have created a set of “some rights reserved” copyright licenses that “encourage the creation of a thriving commons through sharing knowledge.” By using their licenses you’re not giving up your copyright (though you can do that too), you’re merely refining the copyright rules so it works better for you.
Simply put, using a Creative Commons license enables all the people around the world to use your work, without the hassle of coming to you for permission. Because, let’s face it, that will almost never happen. People looking for images to use as illustrations in posts, for songs to remix, for anything to use freely – if they respect your copyright, they’re not going to ask you. They’re going to take the path of least resistance and confrontation and use something else, because your work is almost never invaluable to them.
Not all Creative Commons licenses are created equal
Creative Commons have multiple licenses. Basically, you have two choices: You can allow or disallow modifications of your work, optionally requiring the new work to be released under a similar license, and you can choose whether or not to allow commercial uses on your work.
For allowing commercial uses, you have the following three licenses, with highly simplified summaries:
- CC-BY (Attribution): Do whatever you want as long as you credit me.
- CC-BY-SA (Attribution-ShareAlike): Do whatever you want as long as you credit me and release your derivative work under a similar license.
- CC-BY-ND (Attribution-NoDerivatives): You can share the work however you want, but don’t modify it in any way.
Additionally, you can add ‑NC (NonCommercial) to each of these, which means they cannot be used for commercial purposes. And herein lies a world of difference.
When choosing a license, Creative Commons operates with the concept of whether or not you’ve chosen a “free culture license”. A Free Cultural Work is defined by Freedom Defined as a work having these four essential freedoms:
- Freedom to use the work itself for any purpose, be it personal, commercial, political, religious, or otherwise.
- Freedom to use the information in the work for any purpose. Research papers is a good example here, as are hardware designs, which you should be able to reverse-engineer.
- Freedom to share copies of the work for any purpose, whether you put it on a website, include it in a book, sell it, give it away on CDs, and whether you earn money on it or not.
- Freedom to make changes for any purpose, be it translations, mashups, fanfiction, cropping an image, or anything else, and freedom to distribute your copies.
If you do not allow commercial uses of your work, it can still be shared and used under some conditions, but it is not a Free Cultural Work because it places significant restrictions on several of the essential freedoms. Allowing commercial use is essential for reasons we’ll look at next.
Why you should skip Non-Commercial (and use Share-Alike instead)
In the following I’ll be using these abbreviations:
- CC: Creative Commons
- BY: Attribution (common to all CC licenses)
- SA: Share-Alike
- NC: Non-Commercial
CC-BY-SA is the closest thing that lives up to the name “Creative Commons”. It allows sharing and modifying your work for any purpose, and requires any modification of your work to be licensed under similar terms. This means that others have to release their derivative works back into the commons, contributing to a large and ever growing body of free cultural work.
SA takes care of much of the “evil corporations want to exploit my work” argument, because “evil corporations” probably wouldn’t accept sharing their derivative work under similar conditions. No matter how they’re using your work – from advertising materials to music and music videos – everything has to be shared back freely.
The NC clause is perhaps the most misunderstood and misused of all CC clauses. I will now detail why this is and why you should choose a Free Culture license such as CC-BY-SA. There’s a lot of overlap between the sections, but such is the nature of the topic. I may or may not have succeeded in dividing it into logical sections.
NC makes your work incompatible
NC licenses make your work incompatible with a growing body of free content. Free content isn’t a fringe movement – millions of people use it everyday.
Wikipedia is licensed under CC-BY-SA, and actively encourages commercial use. With an NC clause in there, we’d have to wave goodbye to features like search engine integration and off-line distribution in the form of printed books, e‑books, DVDs, etc. Such ventures will be doomed to fail, because mass distribution costs money and you have to recuperate those costs (unless you rely on donors).
Wikipedia’s SA license means that if you license your work with an NC clause, it can’t be used on Wikipedia. If it was, they couldn’t license the article (the derivative work) under CC-BY-SA (which allows commercial uses). This means they can’t and won’t use your work. More on the SA incompatibility a bit further down.
Wikimedia Commons (which hosts tens of millions of photos, videos and illustrations, many of which are used in Wikipedia articles) doesn’t allow uploads under restrictive licenses such as the NC variants. As a result, it’s truly a powerful archive – any file uploaded to the Commons is instantly usable in all Wikipedia projects.
…with free software
Another example of incompatibility is the inclusion of photos as background images in Linux distros, audio as sample music, or any other creative work used in any way in any free software project. Free software (free as in freedom, not gratis, although it is often both) is built on four fundamental freedoms. As with the Free Cultural Work freedoms (which were modelled on the software freedoms), you are free to use free software for any purpose, even commercially. In general, commercial entities bring resources and sustainability to open content. Large companies have been instrumental in supporting free software such as operating systems and web services. Where would the Linux world be if corporations like Canonical (Ubuntu) and Google (Android) weren’t allowed to meddle? Instead, the license of the Linux kernel requires all changes and improvements to be made freely available, and certainly vast improvements have been made by commercial entities. Everyone wins!
Also, consider this argument from Freedom Defined’s explanation of NC licenses:
Communities like Wikimedia, Debian, or the scientific Open Access movement do not exist for their own gain – they provide free knowledge and free software to the world. Putting your own content under a license recognized by these communities will keep it alive, and will encourage people to make active use of it in many different contexts.
…with non-NC licensed work
In general, if you want to combine (remix/mashup) CC-licensed works, you cannot combine NC-SA with SA because they are mutually exclusive (each one requires you to share the work under similar terms, and the terms are incompatible due to the NC clause). This is true regardless of whether or not you actually intend to use it commercially – you simply can’t combine those works in the first place. In this way, NC-SA licenses are like viruses: Any derivative works also has to use the NC clause, so it spreads and perpetuates the whole problem. And in a culture where everyone uses NC licenses, if you make a derivative work and someone actually wants to pay you for it, you can’t accept the money because at least one of the works you built on was surely NC.
Let’s explicitly view this from your perspective as a creator of original works: If you license your works under an NC clause, others have the aforementioned problems when wanting to use your works. NC limits sharing and creativity not only of your own work, but also of derivatives of your work. You are setting the stage for an avalanche of works with non-free licenses, that each again are doing the same.
…with science (maybe)
Many open-access scientific articles are licensed under CC licenses that don’t restrict commercial uses. It would be a catastrophe if they did have such restrictions – you’d be allowed to use the knowledge in the paper for noncommercial purposes only. All research projects require funding – would you then be allowed to use the knowledge you gained from the “open” paper? I don’t know, but I’m guessing “no”.
NC rules out beneficial uses
In addition to use on Wikipedia and in free software, NC-licensed content may prohibit other basic and beneficial uses which you want to allow. For example, NC would effectively stop ad-supported blogs from using your content, no matter how little revenue they generate – I won’t say it’s definitely illegal, but the uncertainty alone would make them skip your content and use something else. And it gets worse.
…like educational contexts
Your content could not be used in many educational contexts, because many educational institutions are dependent on some revenue to survive. This puts educational institutions, often already in a difficult situation due to insufficient public funding, at an even greater disadvantage since they can’t use NC-licensed content. If pupils and students use your NC-SA content in a publicly funded educational context and create a free exhibition of their derivative works, the local newspaper (being commercial and supported by ads) can’t show pictures where the derivative works appear. Furthermore, using NC-licensed work in public schools may give students a false sense of security when bringing the work outside of school, where infringements on the NC clause can happen more easily due to the muddy waters around the concept of “commercial use”.
…and everything involving expenses
We touched on this earlier, but let’s spell it out: As long as some expenses are involved, almost all users who are not fully supported by public funding or private donations would be unable recoup their costs and thus unable to use your NC-licensed content.
…and helping the developing world
Consider this clever argument from Freedom Defined’s explanation of NC licenses on the effects on people in the developing world:
Worse still are the effects that ‑NC licenses can have on people in the developing world, where entrepreneurship represents an opportunity to overcome poverty and the digital divide. People with basic access to freely licensed materials can redistribute them at a small profit using more traditional means such as photocopying or CD burning. In the absence of large scale government programs to broaden Internet access or distribute free content, market forces can play a clearly beneficial role in spreading free knowledge and free culture. Given cultural, language and access barriers, the common argument of ‑NC proponents that permitting commercial use on request is sufficient to allow for desirable uses, is at odds with reality.
NC is unlikely to increase potential profit over other CC licenses
The moment you’re licensing your work under a CC license, you’re giving it away for free (gratis, not necessarily freedom, as you probably understand by now). There’s not much money to be made in purely distributing it. Any market built purely around distribution of freely available content relies either on users’ goodwill or their ignorance.1 It doesn’t seem that interesting to large corporations, who have better ways of earning money – instead, you’re hurting smaller publications like ad-funded blogs, radio stations, local newspapers, etc. In order to make a substantial profit from your work, a company will have to provide added value. By using SA instead of NC you can make sure that added value is freely available to everyone. Whereas NC restricts the commons, SA expands it. Large corporations intent on unethically exploiting your work and making a significant profit from it would most likely find it unattractive to freely release their product.
“Commercial” doesn’t mean “unethically ripping you off”
Simply put, there are tons of business models around free content. That doesn’t mean that someone is ripping you off. Non-profit initiatives often rely on commercial use to succeed. The German DVD version of Wikipedia made many articles much better and greatly increased Wikipedia’s popularity. Additionally, the organization behind it donated substantial amounts of the profits back to Wikipedia (though of course they were not required to). We’ve touched on this point already, so I’ll leave it at that.
NC doesn’t protect you from everything
In fact it doesn’t protect you at all; you have to defend any copyright yourself. Many corporations view breaches of copyright law as mere financial risks. If such corporations want to use your NC-licensed content (or all-rights-reserved content for that matter), they will. Unless you are prepared to protect your rights in court, the only ones you hinder using NC are the companies and institutions that respect your copyright the most. In that manner, NC clauses are most heeded where their consequences are least intended (as described in previous sections).
Also, if you truly don’t want others to use your work commercially, you might find it disconcerting that a charitable nonprofit fund is classified as non-commercial and may use NC-licensed work, even though they have considerable means and would pay for the content if they had to. (I expect that in reality many nonprofit institutions lack adequate funding to survive without any commercial activity, and would not be allowed to use your NC work at all.)
And if a scientist wants to publish a study or book on extremists through a publishing house, he would not be allowed to use your NC content. The extremists however, being political and not commercial, would be allowed to use it. While this particular example may be a bit contrived, it clearly shows that NC doesn’t protect you from all unethical uses of your work.
“Commercial” is a vague concept
Can you use a photo in an internal company presentation? What about using photos as illustrative content in a paid presentation? How about on a poster requesting monetary donations to a charity? What about a poster requesting donations of time (volunteering)? Here’s more conundrums (I recommend you at least take a brief look at that list).
You support existing copyright terms
When you create anything, you automatically have all rights reserved. Your copyright doesn’t expire until 70 years after your death, when it’s classified as public domain (barring any future extensions by your descendants or companies or record labels). If you use an NC license, the license will be restricting commercial usage long after you’re gone.
Potential benefits of NC
The NC clause can have benefits, but less commonly than you might think (before reading the above sections). For private individuals, there’s usually no good reason for choosing NC. In most cases there would be little chance that a commercial user is willing to pay you for using your content. The only good point I’ve come across is that NC clauses can make sense for publishers and other commercial entities who want to control commercial distribution of their content. In that case, an NC-type license is a vast improvement over “all rights reserved”, which is the default.
Why I chose CC-BY-SA: Letting go of the illusion of control
For me to allow commercial use of my works (most importantly my photos, but also my Zelda guides and possibly other types of works in the future), all the above arguments need to match up with my personal plans for my works. So here’s a bit about why I choose Creative Commons generally and Share-Alike particularly (foregoing Non-Commercial).2
I like freedom (well duh), for myself and other people. I like to easily be able to use other’s photos as banner images in my posts, and if I so wanted, to download a nice photo I found and send it to some company for printing big and hanging on my wall. Similarly, the thought of my photos being able to be shared and easily used is enticing. While some part of me would prefer everyone just viewing my photos on Flickr and commenting on them there so I can track views and respond to comments, I realize and have to accept that people generally don’t and never will, and that I have much to lose on forcing other people to view my photos on my terms. My main motivation is for others to enjoy my work, and I don’t want to dictate how people do that. For unknown photographers like me, that’s a shortcut to obscurity. If my works can be of use and inspiration to others, I want others to make use of them however they see fit.
The control of my online photos is, let’s face it, just an illusion. I mean, my photos are on the web, and they’re not watermarked (because nothing distracts from the appreciation of art like watermarks). If someone really wants to use my photos, they’re going to use them whether I’d allow it or not, so I might just as well employ a system which encourages people to do it in a proper manner.
Letting go of this illusion of control is a step I had to overcome, but in the end it’s just that – a switch in my mind I had to flick.
Now, choosing Creative Commons wouldn’t make as much sense if I had a website where I was selling prints of my photos. Why should people pay a middleman (me) for a print if they could just download it and print it directly at their local print shop? Of course, I could CC-license low-resolution versions of my photos and keep the high-res one for myself. But it’s a moot point. I currently have no plans on earning money on my photos. No-one has ever approached me wanting to purchase a print, and although I have made prints available through deviantArt (first as an experiment, later out of habit), I have never actually intended to earn money on my photos. If I want to earn money on future photos, I can always reconsider the licensing of my photos from that point going forward. (And even for making money, CC can be used wisely.)
I want my photos to be enjoyed and bring happiness to others. I want publicity and widespread use (and remember, properly attributing the work to me is always a requirement). Using a NC clause would be shooting myself in the foot.
As you can see from this post, going for CC-BY-SA is not just a whim on my part. Creative Commons actively encourages people to choose a Free Culture license (i.e., not NC). Wikipedia, a rather big hitter, uses BY-SA, which places no restrictions on commercial use. Indeed, avoiding NC licenses seem to be the general consensus (see “Further Reading” below).
Yes, skipping NC means that it is possible for people to sell prints of my photos. But the photos are freely available and users could just do an image search, download the original, and print the image themselves using their favorite printing service. I wouldn’t see a penny this way either. And the guys selling my image would have to attribute me with at least my name and a link to my original work, giving increased exposure to me and my other works. (If they didn’t attribute me, they could just as well breach any NC clause or “all rights reserved”, so it’s not relevant to the NC discussion.)
And if someone has a photo of mine on the wall, even if I never see a penny from it, I’ll be honored and happy. Someone thought my photo was nice enough to decorate their home with, and most likely they would never have purchased it anyway.
In the end though, it’s not about me. It’s about creating a global, thriving commons of creativity and knowledge. Why? Let me paraphrase the Creative Commons mission and vision (and this is a mouthful you should chew on):
Through maximizing digital creativity, sharing, and innovation, we can realize the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.
By allowing commercial use of my works, I’m doing my part of that.
Sources and further reading, in my recommended order (though all are recommended):
- Paul Klimpel’s brochure on Consequences, risks and side-effects of the licence module “non-commercial use only – NC” (PDF)
- Creative Commons: Understanding Free Cultural Works
- Creative Commons Wiki: NonCommercial interpretation
- Creative Commons Wiki: NonCommercial (lots of links to arguments “for and against” NC, though I think all of them are against)
- Freedom Defined: The case for Free use: reasons not to use a Creative Commons ‑NC license