Sunday, October 23, 2011

Creative Commons - ND (No Derivatives)

When I was a sophomore in high school, I read Catcher in the Rye. To me, the amazing thing about this book was the language. It seemed like every other word was "bastard", "goddam" or "sonofabitch". What were my teachers thinking?

Imagine if the Salinger estate decided to release a Catcher in the Rye ebook with a Creative Commons License so that 10th graders around the world could read it for free. What sort of license would they choose? In particular, would they choose a "No Derivatives" license?

Here's the "legal code" of the No Derivatives (ND) restriction in the CC BY-NC-ND license:
The [granted] rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats, but otherwise you have no rights to make Adaptations.

"Adaptation" means a work based upon the Work, or upon the Work and other pre-existing works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered an Adaptation for the purpose of this License.
The advantage of allowing derivative works (Adapations) is that people would be free to use Catcher in the Rye for all sorts of amazing things. There would be a thousand YouTube dramatizations of Catcher in the Rye, free to all. There would be fan fiction. There would be novels about Holden as a homeless person, Holden as a Wall Street tycoon, or as President Caulfield. There would be translations, graphic novels and operettas. Best of all there would be versions of Catcher that would have all the goddams replaced by gosh darns and bitches replaces by guns, and that's what 10th graders would read in Texas. Imagine what they'd read in North Korea: Brother Ho Gathers Rice.

J. D. Salinger is rolling over in his grave even as we ponder the scenario. I think it's safe to say that Catcher in the Rye will not see a license allowing derivatives in my lifetime or in yours. It's not about generosity at all, it's about the artistic vision of the author. And J. D Salinger is not alone in wanting to ensure the integrity of his works. That why Creative Commons offers the "No Derivatives" option for its licenses in the first place.

There are lots of cases in which it's valuable to be able to change a work. As much as it hurts when your edit is reverted, the most amazing feature of Wikipedia is that anybody can change it. For a jazz singer, a song that you can't riff on is not jazz at all. For a teacher, a textbook that you can't adapt to your curriculum is just wrong. In these and many other applications, an ND license seriously reduces the value of a work.

But to date, most books have been written with the expectation that the the version that goes out to the printers is more or less the version that will be read. Authors have not incorporated the possibility of remixing and read-write literature into their creative visions. Certainly this will change as new forms and conventions emerge. But for now, most authors want to control the expression of their creations, even if they're willing to set them free. For the purposes of, we have to respect these wishes if we are to convince authors to release their works into the public commons. Money is not the issue.

As Mike Taylor, a long time friend of this blog, commented on a previous post, the ND aspect of our "standard" license clashes somewhat with the second two bullet points of Creative Commons'  "Share, Remix, Reuse" slogan.  It's important to recognize that even the CC BY-NC-ND license that will use by default unlocks "Remix" and "Reuse" activity that falls under "Fair Use".  The Creative Commons licenses leave untouched the fair use rights of users, and are hostile to Digital Rights Management (DRM) software that in practice impedes these rights. DRM typically blocks many types of fair use, and in the US, the Digital Millenium Copyright Act (DMCA) criminalizes the circumvention of this DRM.

Many of the derivative works that have Salinger spinning are allowed under fair use no matter what the license. But an ND license lets an author keep potentially valuable movie rights and translation rights. The value of these would be enhanced by letting everyone in the world read the book for free through ungluing, and this incentive will benefit the public by reducing the authors' ungluing price.

It's hard to know what sorts of "adaptations" of a work will be possible in the future. However, the Creative Commons licenses, including the ND licenses, make it clear that users have the right to migrate the work to new formats for the purposes of accessibility and compatibility with new media and technology. This is important to all of us, because without this right, it's quite possible that many of the ebooks we use today will be unreadable 50 or a hundred years from now.

  1. As always, don't confuse this blog with legal advice.
  2. According to Wikipedia, Catcher in the Rye continues to sell 250,000 copies a year. 
  3. The Catcher in the Rye is #410 on Amazon's best-seller list. 
  4. A fair "ungluing price" for Catcher in the Rye would be at least $4,000,000.
  5. I've previously posted about the Attribution and Non Commercial attributes of Creative Commons Licenses
  6. It's funny. Don't ever tell anybody anything. If you do, you start missing everybody.
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  1. I can see the logic. But I think it's sad. For good and rational practical reasons, the Gluejar default licence is going to perpetuate the hard line between makers and users, producers and consumers -- a hard line that didn't exist in the time of Shakespeare and is clearly in the process of dissolving again now.

    Still. I understand.

  2. A more positive reading would be: one step at a time!