No Derivative Works

Wed, 24 Jun 2015

A discussion on IRC inspired me to write about the problems with licenses that do not allow derivative works.

The primary reason for allowing derivative works is because creative works contribute to our shared history and culture and rightly belong to the people of the world once published. There's a whole separate argument to be made there, which I won't do here. I'll just address the point that was raised in support of not allowing derivative works: Avoiding misrepresentation. The idea is that, if people can't change what you wrote, they can't make it seem like you're saying something different. This argument quickly falls apart when you examine it.

This is because the license can only regulate stuff beyond what the law already allows. Keep in mind regardless of that a license says, people don't have to accept it and can instead simply treat the work as if it was under normal copyright. Quoting people and re-using portions is already allowed as a fair use exception to copyright in the U.S. and in the various laws of other countries around the world. As long as people are able to quote you and re-use small snippets legally without accepting the license then the potential for being quoted out of context, being made to seemingly say something else, and such will still exist regardless of the license.

In fact, CC BY and CC BY-SA do a better job of addressing the concern over misrepresentation because they require that modified versions be clearly marked as such so as to avoid attributing someone else's changes to the original author. That automatically prevents someone from modifying the document and then claiming it's what the original author said. (And if someone is concerned that someone won't follow the license and clearly mark it as having been modified then what makes them think that they're going to follow the ND license either?)

Another thing is that CC BY and CC BY-SA both include a provision that the copyright holder can contact someone and have the attribution removed (see section 3.a.3 in version 4.0 of both CC BY and CC BY-SA.) So if the author didn't like the modified version so much that they wanted their name off of it, they can invoke that clause to have the attribution removed.

Not only does ND not address the stated concerns, it also prevents uses that the original author might want to allow, such as translations. Yes, someone could contact the author to ask for permission to make a translation (aka a "derivative work") but this works only so long as they're both alive and contactable. It quickly falls apart once either of those two things change. This also contributes to "permission culture." This culture of permission is why orphan works, for example, are a problem where you can't find the copyright holder or their heir to get that needed permission from.

It's far simpler to grant that permission upfront, especially since licenses that do not allow derivative works do not really address the stated concern of misrepresentation.