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

Revision as of 00:33, 21 February 2011

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 Creative Commons attribution non-commercial share-alike licence. However, we recommend that you use the 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.

The non-commercial condition

In addition to the requirements of the Creative Commons attribution share-alike licence used by Wikipedia, which already requires that

• authorship is appropriately attributed (for the original as well as all derived works) and
• all derived and improved works are made available to the community again (share-alike),

the non-commercial clause requires that one

• "may not use this work for commercial purposes".

The full text in the license text is:

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)

To our knowledge, no further interpretation beyond this legal contract code is provided by Creative Commons.

What is a commercial activity?

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 word commercial is not directly linked to the concept of making profits. A non-profit enterprise, that charges for money to support their business without making profits beyond cost compensation, is a commercial enterprise.

The Creative Commons corporation have published a report on the perceptions of the term "non-commercial" (Announcement and Full PDF^[1]) 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 to do not decide according to a majority interpretation.

• 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. BobMorris 00:33, 21 February 2011 (CET)

Monetary compensation

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.

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.

Who can re-use a non-commercial work?

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.

For profit use

Charging money for the work as a means to obtain profit is clearly prohibited.

Cost recovery or subsidizing

Charging money for the work as a means to recover cost is likely to be prohibited. Note that this includes the following situations:

• a work is distributed as an handout on a nature-education walk organised by a non-profit organisation or society
• a work is used for education in an environment where some cost-recovery or subsidizing monetary compensation occurs (tuition, class fees, etc).

Use in Advertisements

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").

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:

• A large for-profit soft-drink producer runs an advertisement campaign "better drinks for a more joyful life".
• A large for-profit beer brewer advertises their products with "50 cent of every purchase buy and preserve a piece of Amazonian rain forest".
• A large non-profit nature conservancy organization runs an advertisement campaign to become a paying member of the society

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.

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.

The share-alike clause

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 CC by-sa, e.g. from Wikipedia, does prevent the use under a more restricted license such as a the non-commercial CC by-nc-sa licence.

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.

Summary

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 Wikipedias or 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.

According to both the OSI Open Source Definition^[2] and the GNU Free Software Definition^[3], the CC by-sa licence is an Open Content and Open Source license, whereas the non-commercial CC by-nc-sa licence is not^[4].

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.

Suggested reading

• Erik Möller 2007^[4]
• On licensing data base data (not on non-commercial though): Mike Linksvayer 2011 ^[5]
• Wikimedia Commons 2009. ^[6]
• Societal cost of NC license in the context of self-help instructions: Appropedia 2010^[7]

References

1. ↑ 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
2. ↑ Open Source Initiative (undated). The Open Source Definition (Annotated) Version 1.9. http://opensource.org/docs/definition.php - accessed 2011-02-20.
3. ↑ Free Software Foundation 2010. The Free Software Definition. Updated: 2010/11/12. http://www.gnu.org/philosophy/free-sw.html
4. ↑ ^{4.0 4.1} Erik Möller 2007. The case for free use: Reasons not to use a Creative Commons NC license. http://freedomdefined.org/Licenses/NC
5. ↑ Mike Linksvayer 2011. CC and data[bases]: huge in 2011, what you can do. February 1st, 2011, http://creativecommons.org/weblog/entry/26283
6. ↑ Wikimedia Commons 2009. Licensing Justifications. http://commons.wikimedia.org/w/index.php?oldid=25264121
7. ↑ 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

Author: Gregor Hagedorn, 2011. Suggested citation: to be added after leaving draft stage.