Difference between revisions of "Understanding Creative Commons Non-Commercial"

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by ''Gregor Hagedorn'', in collaboration with ''Daniel Mietchen'', ''Willi Egloff'' and ''Robert Morris'' (2011)
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Species-ID, like Wikipedia is a non-profit venture, funded only by public research funds and private in-kind donations. It is therefore possible to reproduce works licensed under the [http://creativecommons.org/licenses/by-nc-sa/3.0/ Creative Commons attribution non-commercial share-alike license] on Species-ID. However, we recommend to use the [http://creativecommons.org/licenses/by/3.0/ Creative Commons attribution]  or [http://creativecommons.org/licenses/by-sa/3.0/ Creative Commons attribution share-alike] licenses instead.  
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Species-ID, like Wikipedia is a non-profit venture, funded only by public research funds and private in-kind donations. It is therefore possible to reproduce works licensed under the [http://creativecommons.org/licenses/by-nc-sa/3.0/ Creative Commons attribution non-commercial share-alike license] on Species-ID. However, we recommend that you use the [http://creativecommons.org/licenses/by-sa/3.0/ Creative Commons attribution share-alike license] instead. The following summary will be discussed in detail below:
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| text  = '''Summary in a nutshell:'''  
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| text  = '''In a nutshell:'''  
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# Although many people identify '''non-profit''' activities with '''non-commercial''', the precise definition reveals that a great part of '''non-profit activities must be classified as commercial''' under the terms of the Creative Commons licenses.
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# Although many people identify '''non-profit''' activities with '''non-commercial''', most '''non-profit activities must be classified as commercial''' under the terms of the Creative Commons licenses.
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# If you '''make a living''' by selling copyrighted works (images, etc.), contributing content under [http://creativecommons.org/licenses/by-nc-sa/3.0/ CC by-nc-sa] (the Creative Commons attribution '''non-commercial''' share-alike license, which is '''not an open content license''') is a valid option. Doing so will strongly protect your commercial interests. However, it also '''strongly limits re-use of your contribution: non-profit-organisations, most scientific societies, Wikipedia, etc. will be unable to use your contribution'''.
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# If you '''make a living''' by selling copyrighted works (images, etc.), contributing content under [http://creativecommons.org/licenses/by-nc-sa/3.0/ CC by-nc-sa] (the Creative Commons attribution '''non-commercial''' share-alike license) is a valid option. Doing so will strongly protect your commercial interests. However, you are '''not using an open content license''' and the decision will '''strongly limit re-use of your contribution:''' non-profit-organisations, most scientific societies, Wikipedia, etc. will be ''unable'' to use your contribution.
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# If you do '''not make a living''' from your pictures etc., please consider sharing them as '''open content''' by supplying them under the open content licenses '''[http://creativecommons.org/licenses/by/3.0/ CC by]''' or '''[http://creativecommons.org/licenses/by-sa/3.0/ CC by-sa]''' (the latter is equivalent to the GPL used for much Open Source software). Doing so will enable a '''much wider re-use''' of your contribution and increase the efficiency of informing people about biodiversity. The organisations profiting most from the license will be non-profit initiatives, which can use the materials without fearing a law suite. However, a publisher may indeed use the work in a book that generates a profit. Such dissemination of knowledge is not evil and may be in the interest of biodiversity education — each author is encouraged to balance the potentially lost profits against the increased benefit to society.
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# Do not choose the "non-commercial" option because you have no commercial interest and want to contribute to spreading information outside of profit-making corporations. If you do '''not make a living''' by selling your works, please consider sharing them as '''open content''' by supplying them under open content licenses like '''[http://creativecommons.org/licenses/by/3.0/ CC by]''' or '''[http://creativecommons.org/licenses/by-sa/3.0/ CC by-sa]''' (the latter is used by Wikipedia and is equivalent to the GPL used for much Open Source software). Doing so will enable a '''much wider re-use''' of your contribution and increase the efficiency of informing people about biodiversity. The organisations profiting most from the license will be non-profit initiatives, which can use the materials without legal risk. However, a publisher may indeed, with appropriate citation or your authorship, use your contribution in a book that does generate a profit. Such dissemination of knowledge on biodiversity is not essentially evil and may be in the interest of biodiversity education. Thus, each contributor is encouraged to balance the potentially lost profits against the increased benefit to society.
 
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==The non-commercial condition==
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This page originally held an overview by ''Gregor Hagedorn'', ''Daniel Mietchen'', ''Willi Egloff'' and ''Robert Morris'' written in 2011. The original work is still available by means of the page history. The authors have since published a revised and expanded version: ''Hagedorn, G. et al. (2011) Creative commons licenses and the non-commercial condition: Implications for the re-use of biodiversity information. Zookeys 150: 127-149. [http://dx.doi.org/10.3897/zookeys.150.2189 DOI:10.3897/zookeys.150.2189].'' Please refer to this article or its updatable [[Creative Commons licenses and the non-commercial condition: Implications for the re-use of biodiversity information|wiki version]] for in-depth information.  
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In addition to the requirements of the [http://creativecommons.org/licenses/by-sa/3.0/ Creative Commons attribution share-alike license] used by Wikipedia, which already requires that
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* authorship is appropriately attributed (for the original as well as all derived works) and
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* all derived and improved works are made available to the community again (''share-alike''),
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the non-commercial clause requires that one
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* "may not use this work for commercial purposes".
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The full text in the license text relating to this clause is:
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: ''You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.'' (http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode)
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To our knowledge, no further interpretation beyond this legal contract code is provided by Creative Commons.
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===What is a commercial activity?===
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The word commercial means referring to commerce, which in turn may be defined as: “1. the activity embracing all forms of the purchase and sale of goods and services” (Collins English Dictionary, 2nd ed.). <!--(“Commercial” may also be a noun for “advertisement”, but the use in the license is clearly adjectival).--> The term “commercial” is thus not directly linked to the concept of making profits. A non-profit enterprise, that charges money to support their business (without making profits beyond cost compensation), is a commercial enterprise.
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The Creative Commons corporation have published a report on the perceptions of the term “non-commercial” ([http://creativecommons.org/weblog/entry/17127 Announcement] and [http://mirrors.creativecommons.org/defining-noncommercial/Defining_Noncommercial_fullreport.pdf Full PDF]<ref>Creative Commons 2009. Defining “Noncommercial” – A Study of how the online population understands “Noncommercial Use”. http://mirrors.creativecommons.org/defining-noncommercial/Defining_Noncommercial_fullreport.pdf</ref>) which shows that the perceptions differ and that many people will consider use of a non-commercial-restricted work in the context of advertisement for cost-recovery an acceptable interpretation. However, which interpretation will be accepted in a legal court case, remains open to speculation – courts do not decide according to a majority interpretation – and requires a separate court decision in each jurisdiction.
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* Comment by Bob Morris, commented out because of critique below, but both kept for reference: Note that by the contrapositive of the second license sentence, the exchange of copyrighted works is a commercial activity for the purpose of the license if there is "payment of any monetary compensation in connection with the exchange of copyrighted works." It doesn't matter whether the purpose of the exchange is otherwise commercial.  This probably means that the issue would hinge on the interpretation of "compensation in connection with"  for most of your examples. That's a typical kind of issue that lawyers can express an opinion about. Applying logic doesn't always work. For example, it's possibly a matter of statute and case law as to whether the inclusion of an image in materials for whose production it is compensated, even at a profit, is necessarily being compensated "in connection with" the transfer of the exchange of the copyrighted work. [[User:BobMorris|Bob Morris]] 00:33, 21 February 2011 (CET)
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* Comment by WE: "This second license sentence refers exclusively to “the exchange of the work for other copyrighted works”, it does not refer to any other use of the work. For all the other forms of use of copyrighted works, a commercial activity is defined by “commercial advantage '''or''' private monetary compensation”! That’s why I think that the example mentioned by Bob does not fit."
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===Monetary compensation and commercial advantages===
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The license distinguishes between (1) a general definition of activities allowed under the license and (2) the special case of “the exchange of the work for other copyrighted works”. In the first case, “non-commercial” is defined by two elements:
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* “no private monetary compensation” (= any kind of payment) and
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* “no commercial advantage” (= any direct or indirect non-cash-profit, potentially including profits in reputation [e.&nbsp;g. through sponsoring] or savings of expenses [one does not have to buy a copy of the work in the shop...]).  
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The second case of exchanging copyrighted work does allows commercial advantages, focusing only on monetary compensation. The fact that a special case is introduced stresses that (a) absence of “monetary compensation” is a core principle that is upheld in all cases, and (b) that any form of “commercial advantage” is a binding principle for all activities (except exchanging copyrighted works).
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It is important to realize that a “compensation” includes form of cost recovery or even partial recovery.
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==Re-use of works under a Creative Commons non-commercial license==
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Any private or legal person or organisation may use a non-commercially licensed work, depending on the context of the activity. The re-use depends on the context and goal of an activity, not on the person or organisation.
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=== For profit use ===
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Charging money for the work as a means to obtain profit is clearly prohibited.
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=== Total or partial cost recovery ===
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Charging money for the work as a means to recover cost is clearly prohibited by the choice of ''“compensation”'' rather than ''“profit”'' in the license text. This prevents, for example, the following uses:
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* a work is distributed as a handout on a nature-education walk organised by a non-profit organisation or society for which a small participation fee of 5  EUR is required
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* a work is used for education in an environment where some cost subsidizing monetary compensation occurs (tuition, class fees, etc.).
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=== Use in Advertisements ===
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Distributing the work without direct monetary compensation will generally have indirect effects (“commercial advantage”). The license specifies that secondary effects shall be included in the consideration (“or directed toward ...”).
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In a general sense, many uses can be interpreted as an advertisement (including the case of advertising services of a non-profit organisation). Whether indirect effects are considered to create a commercial advantage or not, will be difficult to decide. Test cases to decide whether a non-commercially-licensed work may be legitimately used might be:
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* A large for-profit soft-drink producer runs an advertisement campaign "better drinks for a more joyful life".
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* A large for-profit beer brewer advertises their products with "50 cent of every purchase buy and preserve a piece of Amazonian rain forest".
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* A large non-profit nature conservancy organization runs an advertisement campaign; the immediate goal might be to increase their paying membership base, the ultimate goal to increase their financial and political abilities to serve the cause of nature protection.
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In each of the cases a court may decide that the license stipulates non-commercial, not non-profit, and that indirect effects of the advertisement (advertisements being also called known "commercials") lead to commercial advantage of the user, making the use contrary to the license terms.
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The income of many private or legal persons depends to some extent on their activities involving the use of copyrighted works. It will be difficult for those to demonstrate that these activity are not akin to advertisements.
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==The share-alike clause==
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A common misperception of "non-commercial" licenses is that any work under a more generous license will be available to non-commercial use. This is, however, not the case. The share-alike clause on materials under [http://creativecommons.org/licenses/by-sa/3.0/ CC by-sa], e.&nbsp;g. from Wikipedia, does prevent the use under a more restricted license such as a the [http://creativecommons.org/licenses/by-nc-sa/3.0/ non-commercial CC by-nc-sa] license.
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In collective works, with separate and unambiguous  license attribution, such works may be mixed. Achieving the necessary separation comes, however, at a significant management and controlling cost.
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<!-- "Share-alike" may sometimes be hard to interpret as well, especially in terms of derivative works that use another medium than the original (e.&nbsp;g. audio instead of text, or printing separate digital articles into one paper book or brochure). --[[User:Daniel Mietchen|Daniel Mietchen]] 01:55, 21 February 2011 (CET) // Gregor: I agree only in the latter case. Changes of medium do not affect the copyright protection of a work, and the CC licenses derive all restrictions from this. The creation of collections is a problem in the case of share-alike. The CC licenses do grant inclusion in collections of different licensing status, but the level of granularity (whole articles versus audio samples) may be unclear. -->
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==Summary==
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'''Non-commercial is not non-profit.''' The non-commercial license effectively protects the creator of a work from any use in which a third party may make monetary profits or any other commercial advantage from the work. It comes, however, at a high societal cost. '''While maximizing protection, it minimizes the potential for re-use.''' It prevents use in open content projects like the [http://www.wikipedia.org/ Wikipedias] or [http://www.oercommons.org/ Open Educational Resources (OER)]. Even for non-profit initiatives that have no license policy, pending a future high-court decision in each legislation, any use of works under the non-commercial licensed works comes at a high legal and financial risk for the responsible person or organisation.
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According to both the OSI Open Source Definition<ref>Open Source Initiative (undated). The Open Source Definition (Annotated) Version 1.9. http://opensource.org/docs/definition.php - accessed 2011-02-20.</ref> and the GNU Free Software Definition<ref>Free Software Foundation 2010. The Free Software Definition. Updated: 2010/11/12. http://www.gnu.org/philosophy/free-sw.html</ref>, the [http://creativecommons.org/licenses/by-sa/3.0/ CC by-sa license] is an Open Content and Open Source license, whereas the [http://creativecommons.org/licenses/by-nc-sa/3.0/ non-commercial CC by-nc-sa license] is not<ref name="möller2007">Erik Möller 2007. The case for free use: Reasons not to use a Creative Commons NC license. http://freedomdefined.org/Licenses/NC</ref>.
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The non-commercial license certainly has valid applications, for example, where a person or organisation depends on income that may be achieved by  commercially licensing its works. However, in cases '''where the potential profits from commercial use are comparatively low, the societal cost should be balanced against the lost income'''. This assessment should be especially carefully made in the case of publicly funded organisations or research.
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== See also ==
 
== See also ==
  
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* [http://freedomdefined.org/Licenses/NC Erik Möller 2007: Reasons not to use a Creative Commons NC license]<ref name="möller2007"/> — an overview
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* [http://freedomdefined.org/Licenses/NC Erik Möller 2007: Reasons not to use a Creative Commons NC license] — an overview
 
:* [http://blogs.ch.cam.ac.uk/pmr/2010/12/17/why-i-and-you-should-avoid-nc-licenses/ petermr 2010: Why I and you should avoid NC licenses] — a personalized version of the arguments made in the link above
 
:* [http://blogs.ch.cam.ac.uk/pmr/2010/12/17/why-i-and-you-should-avoid-nc-licenses/ petermr 2010: Why I and you should avoid NC licenses] — a personalized version of the arguments made in the link above
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* [http://commons.wikimedia.org/w/index.php?oldid=25264121 Wikimedia Commons 2009: Licensing Justifications]<ref>Wikimedia Commons 2009. Licensing Justifications. http://commons.wikimedia.org/w/index.php?oldid=25264121</ref>
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* [http://commons.wikimedia.org/w/index.php?oldid=25264121 Wikimedia Commons 2009: Licensing Justifications]
 
* [http://blog.okfn.org/2010/06/24/why-share-alike-licenses-are-open-but-non-commercial-ones-arent/ Rufus Pollock 2010: Why share-alike licenses are Open but non-commercial ones aren't]
 
* [http://blog.okfn.org/2010/06/24/why-share-alike-licenses-are-open-but-non-commercial-ones-arent/ Rufus Pollock 2010: Why share-alike licenses are Open but non-commercial ones aren't]
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* [http://www.appropedia.org/Non-commercial_licenses_vs_open_licenses#Problems_with_non-commercial_licenses Appropedia 2010: Non-commercial licenses vs open licenses]<ref>Appropedia 2010. Non-commercial licenses vs open licenses Problems with non-commercial licenses. http://www.appropedia.org/Non-commercial_licenses_vs_open_licenses#Problems_with_non-commercial_licenses</ref> — Gives examples of societal cost of NC license in the context of self-help instructions/development programs
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* [http://www.appropedia.org/Non-commercial_licenses_vs_open_licenses#Problems_with_non-commercial_licenses Appropedia 2010: Non-commercial licenses vs open licenses] — Gives examples of societal cost of NC license in the context of self-help instructions/development programs
  
 
'''Related topics:'''
 
'''Related topics:'''
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*[http://learn.creativecommons.org/wp-content/uploads/2009/07/ccLearn_primer-Why_CC_BY.pdf learn.creativecommons.org (undated): Why CC-BY?] —  Note that all major OA publishers (BMC, PLoS, Hindawi, Copernicus, as well as Pensoft) - now use CC-BY as the default for their articles.
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* Lawrence Lessig 1999. Reclaiming a Commons. Draft 1.01, Keynote address at The Berkman Center’s “Building a Digital Commons”. In: Lawrence Lessig, Charles Nesson, Jonathan Zittrain (editors): Open Code· Open Content· Open Law, Building a Digital Commons, Harvard Law School, Cambridge, Massachusetts. — The vision behind Creative Commons: why expressions of ideas and knowledge should be shared rather than monopolized. {{EnableTextWrap|url=http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/opencode.session.pdf}}
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*[http://learn.creativecommons.org/wp-content/uploads/2009/07/ccLearn_primer-Why_CC_BY.pdf learn.creativecommons.org (undated): Why CC-BY?] —  Note: All major OA publishers (BMC, PLoS, Hindawi, Copernicus, as well as Pensoft) - now use CC-BY as the default for their articles.
 
*[http://fredbenenson.com/blog/2008/10/22/moving-on-from-copyleft/ Moving on from Copyleft] — Provides arguments against using the "share-alike" clause
 
*[http://fredbenenson.com/blog/2008/10/22/moving-on-from-copyleft/ Moving on from Copyleft] — Provides arguments against using the "share-alike" clause
 
*[http://megsplanet.blogspot.com/2007/10/missing-cc-license-cc-by-2-full-c-for-2.html Missing CC License - CC-By->2@ (full c for 2 years, then CC-BY??)] — Discusses a simple example of a time dependent licensing scheme
 
*[http://megsplanet.blogspot.com/2007/10/missing-cc-license-cc-by-2-full-c-for-2.html Missing CC License - CC-By->2@ (full c for 2 years, then CC-BY??)] — Discusses a simple example of a time dependent licensing scheme
 
* [http://pantonprinciples.org/ Panton Principles] — They deal with data sharing but make the point that anything non-CC0/PD ultimately creates reusability barriers because of license incompatibility. Therefore, CC0/PD is recommended for published data resulting from publicly funded research. Attribution should be achieved by way of social norms within the scientific community, not via copyright law.
 
* [http://pantonprinciples.org/ Panton Principles] — They deal with data sharing but make the point that anything non-CC0/PD ultimately creates reusability barriers because of license incompatibility. Therefore, CC0/PD is recommended for published data resulting from publicly funded research. Attribution should be achieved by way of social norms within the scientific community, not via copyright law.
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* [http://creativecommons.org/weblog/entry/26283 Mike Linksvayer 2011: On licensing data base data]<ref>Mike Linksvayer 2011. CC and data[bases]: huge in 2011, what you can do. February 1st, 2011, http://creativecommons.org/weblog/entry/26283</ref> — On database licensing and CC0 dedication (not about "non-commercial").
 
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<!-- Vince on NC in ViBRANT: http://vbrant.eu/content/creative-commons-non-commercial-licenses?destination=node/615 not yet cited -->
 
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==References==
 
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<references/>
 
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''Suggested citation: to be added after leaving draft stage.''
 

Latest revision as of 11:54, 27 January 2012

Species-ID, like Wikipedia is a non-profit venture, funded only by public research funds and private in-kind donations. It is therefore possible to reproduce works licensed under the Creative Commons attribution non-commercial share-alike license on Species-ID. However, we recommend to use the Creative Commons attribution or Creative Commons attribution share-alike licenses instead.


Nutshell.png In a nutshell:
  1. Although many people identify non-profit activities with non-commercial, most non-profit activities must be classified as commercial under the terms of the Creative Commons licenses.
  2. If you make a living by selling copyrighted works (images, etc.), contributing content under CC by-nc-sa (the Creative Commons attribution non-commercial share-alike license) is a valid option. Doing so will strongly protect your commercial interests. However, you are not using an open content license and the decision will strongly limit re-use of your contribution: non-profit-organisations, most scientific societies, Wikipedia, etc. will be unable to use your contribution.
  3. Do not choose the "non-commercial" option because you have no commercial interest and want to contribute to spreading information outside of profit-making corporations. If you do not make a living by selling your works, please consider sharing them as open content by supplying them under open content licenses like CC by or CC by-sa (the latter is used by Wikipedia and is equivalent to the GPL used for much Open Source software). Doing so will enable a much wider re-use of your contribution and increase the efficiency of informing people about biodiversity. The organisations profiting most from the license will be non-profit initiatives, which can use the materials without legal risk. However, a publisher may indeed, with appropriate citation or your authorship, use your contribution in a book that does generate a profit. Such dissemination of knowledge on biodiversity is not essentially evil and may be in the interest of biodiversity education. Thus, each contributor is encouraged to balance the potentially lost profits against the increased benefit to society.


This page originally held an overview by Gregor Hagedorn, Daniel Mietchen, Willi Egloff and Robert Morris written in 2011. The original work is still available by means of the page history. The authors have since published a revised and expanded version: Hagedorn, G. et al. (2011) Creative commons licenses and the non-commercial condition: Implications for the re-use of biodiversity information. Zookeys 150: 127-149. DOI:10.3897/zookeys.150.2189. Please refer to this article or its updatable wiki version for in-depth information.

See also

Related topics:

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