In the last day or so it seems the old Creative Commons license debate has flared back to bright and vibrant life. Perhaps it is a rite of spring, since a bit of googling reveals that LAST spring Nina Paley and Cory Doctorow embarked on a long debate on this very issue. From where I'm sitting (on my twitter feed) there seems to be an emerging consensus in this spring's license campaign that the simple CC-BY license is the best choice for scholars and artists interested in contributing their work to a vibrant intellectual commons. This point of view seems best summarized by Bethany Nowviskie in her blog post "why, oh why, CC-BY." In her post, Nowviskie notes that the CC-BY license allows for the broadest possible redistribution of work by clearing all possible restrictions on re-use. This openness, she argues, has several benefits: it gives her work the potential to be "bundled in some form that can support its own production by charging a fee, [and help] humanities publishers to experiment with new ways forward," it removes the potential that her material could someday become part of the growing body of "orphaned work," and ensures that she isn't left behind by commercial textbooks (which, she points out "will go on with out me"). She argues that restrictive CC clauses, like the NC clause, represent misguided attempts to retain pride-of-place by original creators unwilling to give over their work to the commons freely. She concludes that "CC-BY is more in line with the practical and ideological goals of the Commons, and the little contribution I want to make to it."

I understand where Nowviskie is coming from, and I think the generous impulse she is following to make her work free to everyone, without restrictions, is an admirable one. Like her, I believe that individual authors should set their work free, as it were, and not try to exercise control over what becomes of the words, images, or sounds they produce. She is correct in asserting the CC-BY is the license that most perfectly negates the dubious property rights that individual authors are granted by copyright. However, ultimately I think she is wrong about the collective effect of artists and scholars releasing their work under the CC-BY license. I do not believe the CC-BY license does enough to protect and maintain a vibrant intellectual commons.

Here's why. The CC-BY license is, as Nowviskie points out, the Creative Commons license most similar to releasing one's work into the public domain. The problem is, we know what happens to an unprotected public domain in the presence of large, rapacious, commercial interests that have a vested interest in the production of "intellectual property:" it is sucked up, propertized, and spit back out in a form the commons can't use. Lawerence Lessig tells this story forcefully and eloquently in Free Culture, as does James Boyle in his "Second Enclosure Movement." The example of Disney's transformation of folk and fairy tales is perhaps the clearest. The old stories that Disney based many of it's early movies on were free for anyone to re-imagine, the version's Disney made (which are, for our culture the definitive versions thanks to Disney's ubiquitous publishing reach) are strictly controlled property. The revision of copyright law (shaped in part by Disney's lobbyists) threatens to remove these versions from the public domain forever. There is nothing stopping a textbook publisher from scooping up Nowviskie's work (or the work of any other scholar publishing under CC-BY) and performing the same trick, producing a modified version that would be lost to the commons (and which might be in thousands of classrooms, becoming the definitive version for students). Without protection, the commons becomes fodder for commercial intellectual property producers, who take from it but give nothing back. This exploitation of the commons harms it in several ways: it prevents the re-use of what are often the best known versions of works, it reinforces a system of production that insists on propertizing or otherwise monetizing content to support producers, and it may alienate creators who what to give their work to the commons but feel taken advantage of by commercial uses of their work.

For this reason, I strongly recommend that everyone use either the Share Alike (SA) clause, which forces re-users to release the derivative work under Creative Commons, or Non-Commercial (NC) clause on their CC licensed work. I use both, just to be sure. While some might argue that these clauses should be adopted by those who prefer them and abandoned by those who don't, depending on their personal feelings about the re-use of their work, I hold that the building of the commons is a collective endeavor, and that we must all collectively choose to prevent the enclosure of the new commons we are building together. My work is not very valuable on its own, but combined with the work of all the other contributors to the commons, it forms a body of work worth protecting from those who would take from our community without giving anything back.

PS: This blog is not clearly labelled with the CC-SA-NC license because I am in the middle of a site redesign (I had to push this post out while the debate was hot)... this blog is, however, under CC-SA-NC

PPS: The redesign is also why everything is such a mess! Come back soon for a nicely designed site!