The pros and cons of open licensing vs. non-commercial licensing

Reposted from the RES blog, this is the second of a series of posts I wrote looking at the issue of licensing. Here I examine the pros and cons of open licensing vs. non-commercial licensing, focusing on how cultural institutions can license their digital assets and considers how best to ensure their use in products built on the Research and Education Space, as well as other open products, like Wikipedia and Wikimedia Commons. The original is here.

One of the thorniest problems presented by the emergence of digital technologies is how to preserve the value of digital assets when onward distribution is so easy. This is why the RES project has given such careful consideration to how it deals with the licensing of both data and the assets described. RES has arrived at a model that aims to maximise the benefits of digital content distribution, while offering as much protection to rights-holders as possible.

The model is built around the concept of taking a different approach to the licensing of data versus the licensing of assets and was outlined in the post published on 5th May. That post looked at the issues around the licensing of data; this follow-up post looks at issues around the licensing of assets.

There are two good reasons why RES prefers/recommends an open licence for data but makes no recommendation about the licences that collection holders use for their assets.

The first, simple, reason is that we don’t have the right to tell people what to do with their assets!

The second and more important reason is because at the BBC, experience tells us that licensing of digital assets is complicated. Most of the BBC’s archive programmes post 1990 are currently only available under the ERA licence, and the organisation can hardly tell other people to release assets openly when it is not able to do so itself.

But the RES project team has done a lot of thinking about the best way to license assets, while pushing as hard as we can for open licences and we hope this post will provide food for thought.

Much of the tension in the different approaches to licensing arises between enabling third parties to do wonderful things with your assets, whilst protecting them from unwanted exploitation, by commercial companies for example.

One approach is to throw caution to the wind and use an open licence, taking a holistic view of where the value in your collection lies. This is what the Rijksmuseum did; they have published the vast majority of their digital assets under an open licence.

They are delighted with the results; the non-financial benefits far outweigh the relatively small financial losses, they say. This has been captured in detail in a Europeana case study –  Democratising the Rijksmuseum. Since those reports were published there have been continuing benefits, such as their recent sponsorship deal with Heineken and fashion displays. Opening up their collection has enabled collaborations that have more than compensated for the loss of the £180,000 they had previously earned from selling images online. If you’ve time to spare – I recommend watching this video presentation by the Rijksmuseum’s Lizzy Jongma.

Here, in the UK, in 2015 the York Museums Trust (YMT) released almost 60,000 images under an open licence. OpenGlam have released a Case Study here: and again the benefits have been significant for the Trust:

‘they managed to engage with their audience, stimulate reuse and generate new interest in their collection and museums”,

according to a report by Lieke Ploeger from Open Knowledge International on How the York Museums Trust started opening up its collection, February 2016.

The YMT used the Creative Commons Share Alike licence (CC-BY-SA) as it offers an effective and efficient protection against most commercial exploitation of content. It’s the licence used by Wikipedia. Using the CC-BY-SA licence means that if someone else uses one of your digitised assets they must publish it in the new work in which it is used under the same licence. This prevents commercial organisations both from using CC-BY-SA licensed content to enhance content where they own the copyright, and retaining any copyright in the final work. For instance, if a FTSE company uses a piece of content licensed as CC-BY-SA in its annual report, it means the whole report must be published as CC-BY-SA.

However, if this approach doesn’t feel right, other institutions are opting for the Creative Commons NonCommercial (CC-NC) module which is designed to prohibit uses that are

“primarily intended for or directed toward commercial advantage or monetary compensation”.

At first sight it’s the perfect tool for preventing unwanted commercial exploitation, but there’s a growing recognition that the CC-NC module may also stifle some of the uses that the rights and collection holders want to facilitate. These issues are explored in detail by the Open Knowledge Foundation which offers useful reading on issues concerning non-commercial licences; and a brochure from OpenGlam also provides a useful guide, alongside the Open Data Handbook.

Creative Commons have also published a study into the complexity of non-commercial licences alongside an interpretation of Commercial Use, but it is for informational purposes only and rights holders are encouraged to take legal advice.

The five most relevant points from these detailed reports are:

1. There’s no clear definition of what constitutes ‘commercial use’. It doesn’t just refer to profiteering by companies trading on the backs of others’ work, it just means the content is being used in a context where money is changing hands. Commercial Use applies to the use, not the user.
2. Non Commercial licences don’t meet the Open Definition; therefore, assets carrying an NC licence can’t be used by third parties using RES or by Wikipedia, Wikimedia Commons or any other platform that requires an open licence.
3. Even outside RES, content licensed as NC might not be usable in education as many education providers use commercial platforms such as VLEs to reach teachers and students.
4. It might not stop egregious commercial use. Some companies see fines for copyright abuse as a financial risk (and do you have the resources to sue ‘BigCorp’ anyway?)
5. Publishing an explanation of what you believe non-commercial activity to be is pointless, in part because CC do not allow their trademarks to be used in conjunction with modified licences.

It might be worth considering whether it’s more appropriate to use the UK’s Non-Commercial Government Licence. Its definition of what is commercial is shorter than CC-NC and says people using the content carrying the Non-Commercial Government Licence are not permitted to:

“exercise any of the rights granted to you by this licence in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

This is part of the suite of Open Government Licences (OGL) which were launched in 2010 and are maintained by The National Archive.  The OGL permits anyone to copy, publish, distribute, transmit and adapt the licensed work, and to exploit it both commercially and non-commercially. In return, the re-user of the licensed work has to acknowledge the source of the work and (if possible) provide a link to the OGL.

To end with a final thought. Whatever licence is the right one for your collection it might be worth experimenting, find some assets that you can license openly and see how they’re used and compare that with the use of assets that are published under a more restrictive licence.

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