The difficulties with licensing your work; a critique of free cultural works

The first difficulty to address is why the open education community accepts the non-commercial license as non-free. For starters, there is an essay at Freedom Defined arguing not only why these licenses are non-free, but how they actually make the “situation worse than the traditional copyright model.” They then go on to state the reasons why they hold this opinion, which they summarize in four bullets. I have reprinted the passage here:

The key problems with -NC licenses are as follows:

  • They make your work incompatible with a growing body of free content, even if you do want to allow derivative works or combinations.
  • They may rule out other basic and beneficial uses which you want to allow.
  • They support current, near-infinite copyright terms.
  • They are unlikely to increase the potential profit from your work, and a share-alike license serves the goal to protect your work from unethical exploitation equally well.

My responses are as follows:

  • Limiting Western hegemony and oppression through restricting usage to those who cannot profit commercially from re-use, limits the negative and unintended consequences of the free market; the practical utility loss is irrelevant, since the decision to prohibit exploitation of people proxy the license, is based on one’s ethics regarding educational leadership.
  • From an educational leadership perspective, there are certain intellectual and vocational ideas that span all time, often written down in many Great books of literature and sciences, and those ideas will be polluted by corporate or economic interests through interplay. Restricting so-called “basic and beneficial usage” (alternately, practical and gratification driven) thusly is, once again, imperative for supporting freedom for certain works.
  • If the premise that a license that lacks a NC clause is a proxy for supporting Western hegemony and oppression is true, then near-infinite copyright terms would be the entire point. This license serves as an “in-between” license for safeguarding the rights of the public without having to sacrifice all freedoms to do so, i.e., the public domain dedication. One can maintain their intellectual rights in this scenario, and yet also ensure that people can freely build off the work as long as they, also, do not support the furthering of Western hegemony and oppression.
  • The argument that adopting the view that NC is anti- Free Cultural Works and that, without this provision, it shall nevertheless “protect your work from unethical exploitation equally well” is flimsy. Rather, what I would postulate is true, is that providing structure to the negotiation does ensure the rights of the content creator are not trampled on recklessly. However, permitting so-called “fiscal experimenting” will, in some important cases, only exacerbate non-free outcomes via Western hegemony and oppression proxy the prohibition on NC licenses as Free Cultural Works.

I find the Freedom Defined website to be most awesome, and I largely agree with most of the content and ideas therein. However, despite myself being a libertarian and bloodthirsty capitalist, I think that there are certain works which, in order to remain free, must remain permanently out of the reach of private economic interests. This is because private economic interests, and their partners, the State, have a long track record of combining to result in unintended negative consequences to the free market. Until such a time as a free market and commons actually exist, the NC license affords a way to “opt-out” of Western hegemony and oppression. These licensing privileges are particularly important for non-profit workers, clubs, free associations, religious groups, and academics, however, at present these privileges do not exist and NC licenses are not considered “Free Cultural Works.”

Comments and feedback most welcome.

This is a passage from a forthcoming chapter from a book I am working on, titled Free Schooling. I am reprinting a handy table here from Freedom Defined, for others to see how they categorize licenses that qualify as Free Cultural Works. You can find this table here.

Kindly,

Jonathan Haack

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