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

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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 possible to reproduce works licensed under the [http://creativecommons.org/licenses/by-nc-sa/3.0/ Creative Commons attribution non-commercial share-alike licence]. However, we recommend that you use the [http://creativecommons.org/licenses/by-sa/3.0/ Creative Commons attribution share-alike licence] instead. This essay tries to summarize the advantages and disadvantages of the ''Non-Commercial'' condition on Creative Commons licenses, and why the non-commercial restriction may be undesirable in many cases. It will especially focus on the difference between '''non-commercial''' and '''non-profit'''.
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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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==The non-commercial condition==
 
  
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In addition to the requirements of the [http://creativecommons.org/licenses/by-sa/3.0/ Creative Commons attribution share-alike licence] used by Wikipedia, which already requires that
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{{ombox
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* authorship is appropriately attributed (for the original as well as all derived works) and
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| type  = notice
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* all derived and improved works are made available to the community again (''share-alike''),
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| image = [[File:Nutshell.png|40px]]
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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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| text  = '''In a nutshell:'''
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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) 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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# 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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}}
  
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The full text in the license text 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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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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==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).
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The word commercial is 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 would be accepted in a legal court case, remains open to speculation - courts do not decide according to a majority interpretation.
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*Note that by the contrapositive of the second license sentence, something is a commercial activity for the purpose of the license only 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|BobMorris]] 00:33, 21 February 2011 (CET)
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==Monetary compensation==
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The license refers in two cases to the term "monetary compensation". Here, the compensation clearly includes any possible non-profit uses. A cost recovery would always be a compensation, regardless of profits being made. The importance of excluding this highlighted that an exchange of works (file-sharing or similar) is explicitly allowed if no monetary compensation occurs, making monetary compensation the key principle to observe when interpreting the licence.
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On the other hand, the monetary compensation in the first case is used only in combination with "private" use. For non-private use the "commercial advantage" seems to be defining principle. Whether "commercial advantage" could be interpreted as "for-profit" or whether a non-profit organisation may find other "advantages" in their commercial activities as well, remains open to speculation, pending a deciding highest level court case in each country in which the license is being used.
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==Who can re-use a non-commercial work?==
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Any private or legal person may use a non-commercially licensed work, depending on the context of the activity. The re-use depends on the context and situation.
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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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== Cost recovery or subsidizing ==
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Charging money for the work as a means to recover cost is likely to be prohibited. Note that this includes the following situations:
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* a work is distributed as an handout on a nature-education walk organised by a non-profit organisation or society
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* a work is used for education in an environment where some cost-recovery or 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. The license specifies that certain such indirect effects shall be included in the consideration ("or directed toward").
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In a general sense, such use can usually be construed to be an advertisement (including the case of services of a non-profit organisation). Whether indirect effects are considered to be commercial or not, will be difficult to decide. One may consider the use of a non-commercially-licensed work in the following cases:
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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 to become a paying member of the society
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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, fining the user for violation of the license terms.
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Since it will be difficult to any private or legal person, the income of which depends on somehow related activities, to demonstrate that is an activity in not also an advertisement, the non-commercial licence puts all non-profit re-use by organisation that receive income through membership or cause-related income under legal threat.
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==The share-alike clause==
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A common misperception of non-commercial 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.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] licence.
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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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==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 from the work. It comes, however, at a high societal cost. '''While maximizing protection, is also minimizing 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 licence 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 licence] 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 licence] 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 licence 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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==Suggested reading==
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* Erik Möller 2007<ref name="möller2007"/>
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* On licensing data base data (not on non-commercial though): Mike Linksvayer 2011 <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>
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* Wikimedia Commons 2009. <ref>Wikimedia Commons 2009. Licensing Justifications. http://commons.wikimedia.org/w/index.php?oldid=25264121</ref>
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* Societal cost of NC license in the context of self-help instructions: Appropedia 2010<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>
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== See also ==
 
== See also ==
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*[http://freedomdefined.org/Licenses/NC The Case for Free Use: Reasons Not to Use a Creative Commons -NC License]
 
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:an overview
 
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*[http://blogs.ch.cam.ac.uk/pmr/2010/12/17/why-i-and-you-should-avoid-nc-licences/ Why I and you should avoid NC licences]
 
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:a personalized version of the arguments made in the link above
 
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<!-- Vince on NC in ViBRANT: http://vbrant.eu/content/creative-commons-non-commercial-licences?destination=node/615 not yet cited -->
 
  
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==References==
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* [http://freedomdefined.org/Licenses/NC Erik Möller 2007: Reasons not to use a Creative Commons NC license] — an overview
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:* [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]
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* [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] — Gives examples of societal cost of NC license in the context of self-help instructions/development programs
  
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<references/>
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'''Related topics:'''
  
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''Author: Gregor Hagedorn, 2011. Suggested citation: to be added after leaving draft stage.
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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.
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*[http://fredbenenson.com/blog/2008/10/22/moving-on-from-copyleft/ Moving on from Copyleft] — Provides arguments against using the "share-alike" clause
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*[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
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* [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.

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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