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I’ve been asked (putting it mildly) why we’d choose to make data available with a CC-BY-NC license – especially the NC bit and how this has the potential to introduce uncertainty with future reuse. There are discussions going on about why the NC is a bad clause, and all I hear are the advocates against. This doesn’t really fit on a company blog, so here’s my personal view.

Actually, Mike Linksvayer of CC has saved me a whole pot of writing, with his comment on PMR’s original NC rant. And by his pdf on the CC deliberations and discussion on the future of NC (http://wiki.creativecommons.org/images/c/c2/20110917-noncommercial.pdf). I think it’s an admirable summary of both sides of the for- and against-NC argument – and I have great respect for the work of Creative Commons and resources they’ve provided.

I’ll certainly acknowledge the perception gap between licensors – and we absolutely fit the mould that we think we’d take a liberal view of requests and to what ‘commercial’ means – and the licensees who think they’re prevented.

The only additions I can give (which may be commonly understood, but I’ll make them anyway) are:

Making organisation-owned content available by CC is a great opportunity, but organisations need to take a big leap of faith to drop the NC element. It’s a risk - an unquantifiable risk which may be low, but one which I think many organisations have difficulty with ignoring. It’s the same for individuals as well, but the leap of faith to drop NC is a decision easier made by individuals than organisations.

The leap of faith? It’s not about preventing re-users making a few bucks here and there, but if it’s work with real intellectual effort involved, it is really difficult for many to exclude any possibility of getting a cut if a bright spark makes a million off it. It may not be realistic, but there’s a real human instinct to protect. It’s one of the reasons data isn’t shared more - and I’m involved in efforts to promote open sharing of data as well, through ChemSpider and Open PHACTS - but there are real social and organisational issues before you just ascribe motives to worries about immediate revenue loss.

RSC will shortly be making some educational resources available as NC. It’s great that we have a standard licence to offer them under. We paid for them, we’re making them available to academics for use and reuse for free. Here the intention of NC is not to protect revenue, but to prevent others taking this and charging others for it. Doesn’t sound unreasonable to me, no doubt others will differ.

So that’s my summary really – discouraging, or marginalising, NC will make that gap for organisations to leap into CC greater than it is already. NC provides a safe part of the bridge. My concern is that without it, the safe option would then be not to release. I also suspect that (as acknowledged in Mike’s pdf) that the same applies for individuals.
I would much prefer that available content ends up as CC in some form, as the alternative is likely to be no content or content with no license.
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Richard Kidd's profile photoMike Linksvayer's profile photoAdrian Pohl's profile photoRoss Mounce's profile photo
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the whole point about explicit licences IMO is that they take away all ambiguity
"we think we’d take a liberal view of requests and to what ‘commercial’ means" (my emphasis), frankly isn't a good enough assurance. I don't think I'd sue anyone for re-using my (hypothetical) CC-BY-NC content... but if a lawyer approached me and said someone was 'making millions off this' content and I could potentially win a lawsuit... what do you think would happen?

BTW, the points I take from Mike Linksvayer's presentation are (and apologies if I'm being too harsh on it, it almost certainly wasn't designed for use in this argument, or any academic setting[?]):

1.) "...a study..." where is this study?
2.) "...licensors say they are somewhat liberal..." yes, they might well tell a survey that.
But will they actually be so 'liberal' if someone does something rather good and popular that could be (legally at least, if not morally) construed as 'commercial'.
3.) "...maybe NC does work as gateway to more substantial openness" speculative, lack of evidence.

I do however appreciate your point on lack of NC making 'the gap' between Open Content and 'closed content' wider, I agree this makes it clearer as to what is Open (http://opendefinition.org/) and what is not Open... not necessarily a bad thing(?)


In short, I don't think those who dislike NC (e.g. PMR) are being paranoid, or making things difficult. There's a lot of content out there that should be Open but isn't because of NC's existence and its false but common perception as 'open' due to it's association with Creative Commons who are well known for other Open licences.
 
+Richard Kidd thanks for the kind words.

For conext, my comment referred to is at http://blogs.ch.cam.ac.uk/pmr/2011/11/29/scientists-should-never-use-cc-nc-this-explains-why/#comment-101229

+Ross Mounce I welcome all harshness, but don't sense any. :-)

The study referred to is http://wiki.creativecommons.org/Defining_Noncommercial ... it didn't resolve anything.

Richard's post and Ross's comment form the basic questions we ought be evaluating:

* Attractive/prominent NC licensing options probably do encourage some people/entities to offer some permissions they wouldn't have otherwise. (Richard)
* Attractive/prominent NC licensing options probably do encourage some people/entities to offer fewer permissions than they otherwise would have. (Ross)
* Which makes the greater positive contribution to social welfare? Over the long term?
* Can changes be made in the CC licenses suite (this is timely, given that over the next year we'll be developing version 4.0) or in explanations and recommendations around it that improve the overall social welfare impact of the suite? (Some obvious options are sketched in the PDF linked.)

My bias is skepticism about the value of NC licensed works. Merely putting works online without granting permissions is valuable, NC permissions a small increment, fully free permissions a large increment. At the same time, I don't think NC is as bad in most non-software domains as it is in software (where it has been thoroughly rejected) -- some brief thoughts on that within http://p2pfoundation.net/Free_Culture_in_Relation_to_Software_Freedom -- and perhaps more pertinent to this conversation, I appreciate how hard it is in many contexts to grant any permissions to the public at all.

The CC 4.0 wiki will be launched soon, with a page dedicated to gathering evidence and assessing various options for the future of NC. I hope all concerned make time to add their thoughts!
 
In our CC NC paper we largely agree that NC has a role and should stay. For example, it perfectly fits fanzine use, or students sharing course materials with each other. However, I very much agree with +Ross Mounce's point about licenses and ambiguity: the purpose of standardized license is to enable re-use in scenarios where the granularity of licensed content does not justify individual negotiations. I am sure RSC, in individual negotiations, would encourage and support worthwhile projects to their best ability. But while commercial re-users may have the funds to negotiate, e.g. many images individually, typical non-commercial projects lack these funds. Creative Commons is a wonderful way of avoiding this overhead cost, except that from a re-users perspective, this does not work for the NC license. In a strict but still reasonable interpretation, only private and governmental use of NC licensed material may be safe. If non-profit societies/charities participate in commerce, they can gain commercial advantages (e.g. recruiting new members) in almost any activity. How do you prove what is the primary intent in a way that would also apply to for-profit? So, in my view, too much requires the kind of negotiations you mention, or risking copyright law suites.

New idea: what RSC and other may be seeking could be a "non-profit supportive mark", indicating that an association is willing to be supportive in granting licenses. This might in fact be useful for discovery, and it seems RSC is using the NC license in such a way.

+Richard Kidd : What do you think of the rebranding idea? Our biggest motivation in writing the paper is that in our experiences many view NC licenses less as a means to protect much and give only a little, but as being on par with truly open content licenses, or even as a cause worth supporting. Given the ambiguity of the "non-commercial" phrase, can you think of a name for a license that would be less misleading, be positive as a supportive contribution, but indicates the big gap between an Open Commons created by CC BY or CC BY-SA (and CC0) and this "renamed" license set?
 
For me the NC clause introduces confusion. If, as a teacher, I copy/print NC material and charge my students for that copy, is that commercial or not? This is risk too. I am taking the risk that I might be violating the license here. What if I was not a teacher, but started a small spin off company on consultancy. Could I share this material? How large should me SME be? Are SMEs not supposed to be educational? What if I decided to take the material and create an enhanced version out of it (CC after all), let's say for Bioclipse, and sell that on CD? I would not even start it, because the risk would be too high, I'd invest in something where the RSC decides later I was not allowed too... the very example +Ross Mounce suggests...

+Richard Kidd, it is about risk indeed. And that is exactly why the NC is so good at inhibiting... users will think a second time before using it at all.

Now, regarding the risk for RSC. I would not dare marginalizing that, and fully respect that risk. Some questions, instead. Is the goal of RSC to make money, or to be a scholarly society that should not make loss? What is the current core business of RSC? How often have the papers from the Oscar3 corpus been cited so far, and how much more does the RSC it to be cited in the future? That is, what is the current RSC estimate on the cost-benefit ratio for this corpus (as whole text, rather than sentences)? (I have the corpus still around, I think, so over the x-mas holidays able to determine the citation counts). What would the RSC estimate the reward to be of the extra citations these papers would get from being text mined and likely cited, when being made Open Acccess (the gold version)? Would that indeed be zero. How much earnings does currently come from these 40-ish(?) papers? Did the RSC consider the risk that even with the sentences released as CC, people could reconstruct the paper? (Yes, that would be considerable work, but not impossible... in fact, it would make a nice text-mining exercise :)

Personally, I have a strong feeling that making the papers just Open Access will cost the RSC at most 64.000 pounds. That's 40 times the author fee for an Open Access paper in a RSC journal. In fact, these costs have already been made, and the actual new cost will be much, much lower. So, the real question seems indeed to be, will someone make millions of this corpus. I seriously doubt that, and seriously doubt that anyone in RSC actually thinks someone will make millions out of that corpus.

And I also seriously doubt that anyone would prefer some less-known organisation over the RSC as provider of material, they can get for free with the RSC in the first place. The BY clause ensures that people know that it comes from the RSC already.

Or, and I think the RSC should seriously wonder if they should not just try to take a leap of faith and see what happens.
 
Wish I could respond individually to the comments in G+, but I really appreciate the engagement.

+Ross Mounce I don't disagree, really, I just wanted to get over that it's really difficult for organisations (any organisations) to give over ownership. Was talking about this earlier tonight, and it has similarities in the archive world. I have no problem with PMR making his point on NC, and making it forcefully - but draw the line at misreporting discussions to fit an argument, and smearing the motives of me and my employer.

+Mike Linksvayer Yes, thanks - again, I don't disagree at all. It's a problem, and can see why CC might wish to err on the side of Open. I'm happy to engage in discussions when the wiki's up

+Gregor Hagedorn Really interesting points. And yes, I live in a world where I think people can talk to a human if they want to check things out. Works if you have one or a couple of sources, falls a part a bit if you want to cover 100+ sources (cf pharma and text mining). Though generally from our organisation looking out, it's pretty clear what's commercial and what's not - so another avenue is clarifying what is and isn't commercial. Doesn't necessarily cover the future, but I do find these arguments can err too much on the theoretical problems (and similarly recognise that I only have the view from a learned soc publisher, others may differ, esp those with a legal inclination)
I think the 'non-profit supportive mark' actually hits the nail on the head, for us at least. Might also cover the majority of the concerns where publishers put NC onto OA articles, and is certainly worth further exploration.

+Egon Willighagen Egon, I would really like to keep this general in terms of NC and in trying to bridge the gap between reasons why people choose it and the problems thereof. The specifics of OSCAR training set is missing the point, I'm talking about why it is difficult to choose a more open CC license in general. I think the general discussion on NC is helpful and positive and hopefully productive for the future; the OSCAR discussion is just toxic for me now, I'm afraid. Please stop linking this issue to the RSC's mission; it's not about the money, and how many times do I have to say that? Let's have the discussion over the next Open PHACTS beer.
 
+Richard Kidd, I am just trying to understand what that leap of faith is about. I have had that leap too, but in almost 15 years never been able to give a good argument what I should be afraid of. If it is not about money, not about missions, I am really lost what it is about. In your reply to +Ross Mounce you talk about "to give over ownership" which is not even part of this discussion, making it even more confusing to me. I really love to talk over bear and here if the organisation is just afraid, or whether they have arguments why NC is bad for them, and if so, what they are. To me, the NC clause is effectively hardly stepping onto the bridge, and hardly closing the gap. But as long as I understand why organizations are afraid of NC (if they are not protecting money or mission), I won't be able to understand how we can ever cross that bridge...

Coming from an Open Source world, where a NC clause is rarely used (and for most a violation of basic Open Source rights), and yet, there are many very successful Open Source businesses, I would love to learn why some organisations think they are or their situation is special.
 
+Cameron Neylon well said, and a wholeheartedly agree with your point about having no interest at all in fighting publishers. We're in a free world, and like you say, not everyone makes the choices I would have done, but that's their choice, their freedom.
 
+Egon Willighagen I think there's a missing "don't" in front of "understand" in your "But as long as I understand why organizations are afraid of NC (if they are not protecting money or mission), I won't be able to understand how we can ever cross that bridge..." In many cases it may not be something that can be understood instrumentally. I find +Richard Kidd's "It may not be realistic, but there’s a real human instinct to protect" describes well why lots of people and entities, in many domains, aren't willing to be fully open (or much worse in some domains, eg reticence to publish without DRM).

I don't know that there's much evidence that berating entities with this "instinct to protect" is a successful strategy for getting them to flip, so I also agree with +Cameron Neylon that changing the market via all the ways that can be done is mostly the right thing to do.

Creative Commons is one small player with a fairly unique role in the market, with a limited ability to nudge and set norms. This could suggest that CC ought help make it is easy as possible for "instinct to protect" entities to open up just a bit -- one doesn't have to do much to join the cool club -- just use a CC NC license and you don't even have to give up your lottery ticket (or insurance against feeling envy if someone else wins?). Alternatively could suggest CC ought give stronger signals to market shapers (eg customers, funders, governments) that only fully open is acceptable. CC has been doing a bit of both to this point. The two scenarios aren't independent at all though -- people are friends across intermediaries and funders, entities don't fit neatly in one category, new entities and projects start, and if they don't start fully open, quickly gain an "instinct to protect", fully open entities hire people pushing old school copyright permission revenue streams as new "models", individual authors need to make quick decisions... Hopefully the CC licenses 4.0 process will allow CC to make some well considered optimizations, and again I hope anyone with interest helps us figure out what those ought be.

Finally I want to point out the irony in +Egon Willighagen's last sentence: "We're in a free world, and like you say, not everyone makes the choices I would have done, but that's their choice, their freedom." It is not clear that in a free world one would have the freedom to suppress speech in as pervasive a manner as current copyright policy enables. Overall copyright policy may not be feasible to change in a beneficial direction at this juncture, but while quibbling over specific licenses and organizational decisions, one ought to keep in the back of one's mind what's underlying those quibbles, and what society ought do about it.
 
+Egon Willighagen Ok, I'll try again. I'm not using organisation in the sense of "RSC but anonymised". I'm talking about any organisations. Academic institutions aren't noticeably better at it than publishers or most other mature organisations. The leap of faith, as I said, is an unquantifiable risk, which is what makes it tricky. All good businesses make calculated risks, but this one is probably small but, on the balance, one that organisations tend not to take. Please continue to advocate, but it's easier for you to make that choice as an individual than it is for any organisation. Your sums on value of these papers was never an issue, and this issue frankly doesn't even scratch our mission. We've done more than any other learned soc/publisher to provide public resources for chemistry - we're not perfect but jeez, you cannot judge our motives on these handful of papers. Appreciate your later comment by the way, just want to register again my dismay at the initial jump to judgement.

+Cameron Neylon Yep - we're a reflection of our community. One thing though about your 'two issues' split, which I would like to be absolutely clear - PMR's inaccurate rant about the OSCAR training set was not involving open access material. It was a set of articles we contributed to a research project (SciBorg) several years earlier. I'm not sure if your line about 'moral right' refers to this. The rest of the comment I think points the way forward for advocates of change.

And thanks again to +Mike Linksvayer for another great summary (i.e one which I entirely agree with)
 
Thanks for this great discussion. Generally, I am in line with PMR and Egon and find it really important to go for real openness and build one (instead of many) creative commons. It's a pity, the Open Access movement doesn't follow it's own statements and declarations about OA (Budapest, Berlin) by agreeing on a set of licenses (BY, SA, Public Domain) as necessary conditions for talking about Open Access. As already said, this rather was a failure of the scientists themselves and the funders than of the publishers.

I strongly recommend removing NC-licenses from the creative commons license suite (and I think it was a mistake to imply NC in the license suite in the first place). I believe this would make the greater positive contribution to social welfare over the long term.

I've discussed with quite a few libraries about opening up their data. And I know (as from my and others' personal experience) that rejecting more open licenses and tending towards NC is an initial reflex most people have. But this reflex is grounded on emotion and not on reason. As soon as you start talking with people about licensing and what they want to make possible with stajndard licenses in the first place, people soon prefer share-alike or even more open licenses.

In Germany, we had two cases (and one pending case) where libraries initially released their data under NC. Public criticism of this choice from different sides brought them to move to CC0 in the end. Obviously, people had no experience with standard (open) licensing and no clue about CC licenses. (Which e.g. was exemplificated in statements like "We use a CC 3.0 license which means NC" or "This data is licensed with the CC license..:".) So they had no clue about CC licenses but of course knew the brand Creative Commons and liked the thought of being a member of the "cool club" as +Mike Linksvayer put it. I think, in the case of such agents moving to standard (open) licensing, the existence of NC in the license suite is contraproductive for the commons as they will choose NC because it appeals to their initial protective instinct.

Thus, I strongly recommend Creative Commons to use their popularity to further the commons by removing NC from the license suite and marking it as a "non-commons license" and/or, as +Gregor Hagedorn proposes, renaming the NC licenses to something less appealing for unexperienced licensors.
 
I frankly don't know in which contexts CC is being in use - but clearly PMR's "rant" refers to the results of publicly funded research! (Which may be a small subset of all CC licensed material) There may be legitimate and sensible use of NC in important domains - therefore I would not say "Drop NC" but just make these points:
- Open Access (BBB) and CC have just a small overlap, which, at its core, contains CC-BY in the case of text/articles/books,... .
- (therefore) I agree strongly with Cameron that we should force funding agencies either not to fund NC material or to make it very clearly an unattractive choice for a publisher by offering just token payment for NC material - I would suggest 100 € ;-))

From my experience I would like to offer these snippets:
- As editor of a data journal, I have been asked by a group of authors if they were legally allowed to "transcribe" data (numbers) from copyrighted material. Although not a lawyer, I advised them that there is no copyright on facts, so they could do it safely. These people were clearly afraid to invest their work into a most commendable intellectual product and not being allowed to publish it. Much the same will happen with NC-tagged material (actually, I think uncertainty arises with all tags, except BY, which is clearly understood by all researchers)
- As an employee of a kind of goverment lab in Germany, many years ago I first experienced an interesting distinction which Mathworks made on their Matlab software: There was no (substancial) discount for research - not even for public, non-profit, pure/fundamental research - but only for education, and the buying institution had to be "degree-granting". Therefore I disagree with the addition of a "non-profit supportive mark" to the CC-suite since it might launch an avalanche of special marks ("educational", or even narrower, as in the case of Matlab, above). This would ruin the value of CC as a way to easily and universally make use of the results of public funded research.
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