Understanding Creative Commons Non-Commercial

by Gregor Hagedorn, in collaboration with Daniel Mietchen, Willi Egloff and Robert Morris (2011)

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 that you use the Creative Commons attribution share-alike license instead. The following summary will be discussed in detail below:

The non-commercial condition

In addition to the requirements of the Creative Commons attribution share-alike license 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 relating to this clause 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.). 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.

The Creative Commons corporation have published a report on the perceptions of the term “non-commercial” (Announcement and Full PDF) 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.

Monetary compensation and commercial advantages

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:

• “no private monetary compensation” (= any kind of payment) and
• “no commercial advantage” (= any direct or indirect non-cash-profit, potentially including profits in reputation [e. g. through sponsoring] or savings of expenses [one does not have to buy a copy of the work in the shop...]).

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).

It is important to realize that a “compensation” includes form of cost recovery or even partial recovery.

Re-use of works under a Creative Commons non-commercial license

Any natural or legal person or organisation, including commercial enterprises, 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.

For profit use

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

Total or partial cost recovery

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:

• 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
• a work is used for education in an environment where some cost subsidizing monetary compensation occurs (tuition, class fees, etc.).

Use in Advertisements

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 ...”).

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:

• 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; 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.

In each of the cases a legal 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.

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.

The share-alike clause

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 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 license.

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 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 Wikipedias. 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.

According to all of:

• OSI Open Source Definition,
• Open Knowledge Foundation ,
• Definition of Free Cultural Works ,
• the GNU Free Software Definition,

CC by and CC by-sa are Open Content and Open Source licenses, whereas the non-commercial CC by-nc-sa license is not.

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 negative impact of the non-commercial restriction on open knowledge dissemination and society in general should be balanced against the lost income. This assessment should be especially carefully made in the case of publicly funded organisations or research.

Many contributors consider their intentions non-commercial and erroneously choose the non-commercial license because of this. Where offering a non-commercial licensing option, it might therefore better be labeled as: "Reserve all commercial rights exclusively to your own enterprise".

See also

• Erik Möller 2007: Reasons not to use a Creative Commons NC license — an overview

• petermr 2010: Why I and you should avoid NC licenses — a personalized version of the arguments made in the link above

• Wikimedia Commons 2009: Licensing Justifications
• Rufus Pollock 2010: Why share-alike licenses are Open but non-commercial ones aren't
• 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
• TheHelpful.com (undated): Creative Commons: So what is 'commercial use'? http://www.thehelpful.com/creativecommons/what-is-commercial-use.html

Related topics:

• 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. http:/​/​cyber.​law.​harvard.​edu/​sites/​cyber.​law.​harvard.​edu/​files/​opencode.​session.​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.
• Moving on from Copyleft — Provides arguments against using the "share-alike" clause
• Missing CC License - CC-By->2@ (full c for 2 years, then CC-BY??) — Discusses a simple example of a time dependent licensing scheme
• 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.
• Mike Linksvayer 2011: On licensing data base data — On database licensing and CC0 dedication (not about "non-commercial").

References

Suggested citation: Gregor Hagedorn, Daniel Mietchen, Willi Egloff and Robert Morris 2011. Understanding Creative Commons Non-Commercial. http://species-id.net/wiki/Understanding_Creative_Commons_Non-Commercial.