The Canadian Broadcasting Centre, viewed from above. Photo (CC-BY-SA) Benson Kua.

To me, a license is a tool: it’s a means to an end. But that means that the tool ought to be doing the job you chose for it.

After news broke that the Canadian public broadcaster CBC was moving away from Creative Commons, we launched on CDM into a somewhat informal (and occasionally heated) discussion of CC licensing and specifically the non-commercial restriction most musicians attach to their music.

Here’s a summary of what I can conclude from those conversations.

  • Abuse of non-commercial CC material is rampant. Very often, publishers and broadcasters think Creative Commons material with non-commercial licensing is free for them to use when it isn’t. Almost all publishers fall under the category “commercial” – even “public” broadcasters like the CBC. That’s not to say CC is a bad thing – abuse of copyrighted material is rampant, too – but if well-meaning publishers are abusing the license, it’s an opportunity to educate people.
  • The CBC went to the opposite extreme. Tossing all CC music just because “most” is non-commercial doesn’t make any sense. There’s still a large volume of material that is explicitly free for the CBC to use that lacks the non-commercial restriction. It’s not hard to find, and the licensing – unlike NC – is very, very clear.
  • Some of you apply “non-commercial” because it’s really what you mean. Great! No problem! (Actually, one problem – see the first point above. While it’s an abuse of the license, you may find people blaze right past your “non-commercial” clause.)
  • Some of you apply “non-commercial” and it’s not what you mean. If you’re restricting uses under the license that are cases where you actually want people to be free to share, then the NC requirement probably isn’t a good idea. This is what ultimately prompted me to drop “NC” myself.

Matching the license to what you want people to do is important. It’s like putting up a big “KEEP OFF THE GRASS” sign and then wondering why no one’s dropping by for a picnic. Conversely, if you don’t want people to have a picnic, it’s well within your rights to post a “KEEP OFF THE GRASS SIGN” — and if it’s your lawn, frankly, it’s not my business. It’s the same with your music or images.

I still think that the non-commercial rule in CC is vague to a fault, though that’s best left to a separate discussion. And I don’t want to overstate my complaint. I believe the CBC is right – and I’m equally confident that CDM qualifies as “commercial” based on the previous CC study. So, the larger problem with non-commercial may not be that it’s unclear, but that it’s not understood – and that at least some of the musicians who are using it don’t understand the extent to which it restricts use of their work.

As for the CBC, Creative Commons has responded to the story, and have pointed out that there’s nothing stopping them from using CC works that are available for commercial use:

It is good to know that the CBC will continue to use CC-licensed works in some cases, and their explanation of why not in others. And it is true that only a minority of CC-licensed music is released under a license that permits commercial use — for example, about 26% of the nearly 40,000 CC-licensed albums on Jamendo.

However, as Michael Geist, Cory Doctorow, and many others have subsequently pointed out, CC-licensed music that does permit commercial use ought be allowed.

They also have some tips for finding music that’s free for commercial use, in case you’re looking yourself:
Commercial music guide on the CC wiki
Music on SoundCloud, Wikimedia Commons, Libre.fm

Read their full response:
On CBC podcasts and CC-licensed music available for commercial use [Creative Commons blog]
…as written by CC VP Mike Linksvayer. (Thanks, Cameron Parkins!)

Please keep off the grass

If this is what you mean, great! If not, then maybe you should rephrase your sign. Make sense? Photo (CC-BY-SA) Quinn Dombrowski.

Just as with production tools, I believe our role on CDM is to talk about how to best use the tools you want. Copyright, Creative Commons, public domain, open source, commercial, free, non-profit, whatever it may be can be a means to your end. So, I hope we’ll continue to follow this story and find some information that’s useful to musicians.

Someone in comments brought up the question of whether the music is crap. But, you know, as artists, I don’t think you even know the answer to that question. Mostly you want to find a way to do something with your s***, and hope, at least, it’s good s*** someone enjoys. Carry on.

  • http://ugocapeto.blogspot.com ugo capeto

    call me real stupid but if i am a somewhat commercial entity and i make some dosh using some guy's stuff (which i got for free), ethics would tell me to give back some of the profits to that guy even if said guy said it was ok to use for commercial purposes. Dunno, it just seems like a fair deal to me. Maybe i am old fashioned. to be honest, most people don't really think twice about the boxes when they do the CC stuff because they kinda assume there ain't gonna be that much interest anyway.

  • http://ugocapeto.blogspot.com ugo capeto

    i fully understand CBC's decision and i am not even canadian. Say you're a guy that put up some muzak under CC with ok for commercial use and 1 year later, there s a commercial on the tele with your stuff. i am pretty sure you're gonna say you acted under the 'not knowing what i was doing' when i checked the CC boxes and there's a gonna be a lawsuit in the air. As a company, you want to protect yourselves from possible future problems and quite frankly it's better for everybody to use an ironclad contract to get rights to some material. If it's to feed some guy's blog, then it's a different story and it's probably what most people envision their CC stuff to end up.

  • http://hendersonsix.com Henderson

    Thanks for the "keep off the grass" analogy Peter, can I use that next time I have to explain somebody the merits of a NC license? ;)

  • http://www.createdigitalmusic.com Peter Kirn

    @ugo: Well, no. You're not ethically bound to give people money for something for which they didn't ask money. That doesn't make any sense at all. So, if something is marked non-commercial you can't use it — not ethically, not legally. You're violating the law and the license if you do. If it is NOT marked non-commercial, you're free to use it in a commercial, revenue-generating activity.

    I do think there's some confusion about what "commercial" endeavors are. Despite the casino-like shenanigans of our speculative financial market, most businesses break even or lose money – period. And most profit winds up getting reinvested in the business. It's simply not accurate to assume that because something is "commercial," people take revenue and go buy yachts for themselves with it. On a grand scale, that's why things like Canadian public broadcasting or our NPR in the US — not-for-profit entities — do have profit-bearing activities that nonetheless don't make them into for-profit businesses. They engage in commercial activities without being for-profit, private entities. But none of this matters — whether you're a single blog with Google ads or the Shell Oil Company, you have to follow the rules of the license, because the person who owns the material is the one with the copyright. If they want to give it away, that's their right, too.

  • http://ugocapeto.blogspot.com ugo capeto

    A guy that allows commercial use doesn't really expect his stuff to be used commercially. Trust me, next time around, he ain't gonna put commercial use in his cc license. Would you?

    Well, yeah, of course CBC and NPR are commercial entities, they are non-profit but generate dosh, just like universities and the likes.

  • http://ugocapeto.blogspot.com ugo capeto

    I think it would be real interesting to give an example or 2 of people that allow commercial use and their stuff is generating a good amount of money for whoever uses the stuff commercially. it might be more common for open source software but for music, i dunno (kudos for those that allow it).