Creative Commons, Open Access, and hypocrisy

Recently I had an experience that prompted me to change the Creative Commons licensing on this blog. I was contacted by a representative of McGraw-Hill seeking permission to include one of my blog posts in some school assessment software in the States. The request included a long and convoluted US tax form, and a draft contract with a space for me to name my price. I rapidly progressed from confusion to incredulity. Why would they think I wanted money so US state schools could use my publicly available blog post to test students' comprehension skills? I'd licensed it CC-BY ...oh. NC.

This episode illustrated perfectly the criticisms that I've read recently of CC-BY-NC licenses. 'Non Commercial' is a fairly fuzzy concept. On the face of it, a consortium of US state schools testing their students seems obviously 'non commercial'. Except they've contracted CTB/McGraw-Hill to handle copyright releases, and they are most certainly a for-profit outfit. Perhaps the Consortium charges schools to use their system, I don't know. I do know that signing release forms and "fax or scan back to us" is a pain the arse that I don't need when I'm on holidays and near neither a fax machine nor a scanner. Not that I'm near a fax machine at any time, except perhaps when I'm near a technology museum. But I digress.

Originally I chose a CC-BY-NC license because I didn't like the idea of some commercial publisher selling my work as part of a package. Partially this was me thinking "If they're going to charge, I should get a cut" and partially "They shouldn't be allowed to charge people for my work that I give away for free". I am sure you have discerned that these two thoughts are contradictory.

In 2011 Beth Nowviskie wrote an excellent explanation of why she made exactly the same change I have now made (thanks to Micah Vandegrift for pointing me to Nowviskie). With regard to "predatory" publishers bundling Creative Commons content and re-selling it, she sagely observed

...do I really think that drips and drabs of my own content will make a difference in these vast machines? That for-profit or cost-recovery textbook will certainly go on without me — and that means without my work and whatever good its inclusion might have done, for me professionally and for the spheres of knowledge and praxis I want to advance. - Beth Nowviskie

Nowviskie points to the fact that 'non commercial' licensing is ultimately self-defeating if your purpose in writing is to spread ideas and put arguments, rather than to make money. CC-BY-NC is a smart choice for someone like Cory Doctorow who wants to release his science fiction novels free to read digitally but simultaneously sell them commercially in hard copy with a traditional publisher, but it's self defeating if your primary aim is to 'advance knowledge and praxis'. In this context, I am reminded of something that Tim McCormick tweeted last year:

A publisher's core role is to enclose or organize for value, not to make public or communicate. Tim McCormick

When I first read this tweet, I found it an outrageous idea. Having thought about it more, however, I think it sums up very well the issue at the heart of the arguments and innovations sweeping through academic publishing and library practice. If publishing is about enclosing or organising for value, publishers are only useful if the way they organise and/or enclose information is valuable to somebody other than themselves. Just because some publishers are evil doesn't stop others from adding value for everyone in really innovative ways. McCormick also neatly answers the question of "What if a commercial publisher uses my work in something and someone pays them?" If the publisher has done the work of organising a bunch of CC-BY licensed material in a way that adds value, am I entitled to a cut just because one of the things to which they're adding value was created by me originally for a different purpose? Isn't that perilously close to rent seeking?

The final nail in the coffin of CC-BY-NC for me came when I read about a recent ruling from the Regional Court of Cologne (link in German). The Court ruled that use by Radio Germany (Deutschlandradio), the national public radio broadcaster, of a Creative Commons 'non-commercial' licensed photo was an infringement because it was not 'personal use'. If this ruling stands, it will mean that any use other than 'personal use' of CC-BY-NC licensed works will be unlawful - presumably barring education institutions from using such works. This is certainly not what I want.

It seems pretty hypocritical for someone who champions Open Access for scholarly works to use a license on his blog that even Creative Commons itself states is not a Free Culture license. My only real outstanding concern is that I want attribution to link back to the original post or page. This should mean that anyone paying for value-added products at least knows where they could have found the original content for free. Creative Commons 4.0 Licenses are pretty clear about attribution requirements in a way that previous versions were not, so I'm reasonably comfortable about that now.

So feel free to re-use and distribute my blog posts as you wish. Just make sure you do the right thing and refer your own readers back to my blog. It's called citing your references, and it's only polite.

by Hugh Rundle

Librarian. Flaneur. Wanton Publisher.