Difference between revisions of "4.0/NonCommercial"

The NonCommmercial (NC) term has for CC's entire history been more popular than ShareAlike and NoDerivatives, the other two optional terms in the CC license suite, though its popularity has slowly but steadily declined.^[1] The term as it has appeared in all international versions thus far (1.0,^[2] 2.0,^[3] 2.5,^[4] 3.0^[5]):

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.'

This is reflected on NC license deeds as:^[6]

Noncommercial — You may not use this work for commercial purposes.

Also in the CC license chooser, with the following question:^[7]

Allow commercial uses of your work? ( ) Yes ( ) No

In addition to much use, the NC term has attracted much discussion and criticism on two grounds:

1. uncertainty as to whether particular uses fall in the scope of the term (currently, digital file sharing is the only type of use explicitly stated to be noncommercial)
2. works licensed using the term are not fully free/open and the attractiveness of the term, or of CC itself, could lead to under-use of fully open terms (i.e., CC0, CC BY, and CC BY-SA)

Several legal cases have involved works under CC licenses containing the NC term.

The popularity of the NC term, and debate around it, indicate that it is an important issue to examine rigorously, and get right (see the main 4.0 page for context of overall goals) -- which could mean changes in the 4.0 suite, changes outside the licenses themselves, or retaining the exact language used thus far.

Proposals for 4.0

For ease of reference on discussion lists, please do not alter proposal numbers.

NC Proposal No. 1: Clarify the definition of NonCommercial in the licenses to match wishes of most conservative NC licensors. (e.g., making it clear that use of a licensed work on an ad-supported website is commercial, and/or deleting clause specifying that digital file sharing is a noncommercial use)

• Pros:
• Cons:
• Other comments: Question; can the wishes of the most conservative of NC licensors be captured with legal precision?

NC Proposal No. 2: Narrow the definition of NonCommercial in the licenses to match wishes of most permissive NC licensors. (e.g., making it clear that use of a licensed work on an ad-supported website is non-commercial)

• Pros:
• Cons:
• Other comments: Even if the definition of 'commercial' is not narrowed or broadened, there may be some need to clarify it given widespread confusion; a 2009 CC study found licensors tend to interpret NC liberally. Proposal 10 seeks to define NonCommercial to ensure legal certainty.

Question; can the wishes of the most permissive of NC licensors be captured with legal precision?

NC Proposal No. 3: Eliminate or re-brand the NC licenses at 4.0 so they do not use the Creative Commons name, or otherwise stand apart.

• Pros:
• Cons: Increases search and learning costs for new users/potential users. If Creative Commons Corporation were to do this but continue to support NC licences under another brand it would be accused of deception by those in the open licensing world who don't like NC licenses.
• Other comments: The majority (albeit a diminishing majority) of CC works are NC-licensed

NC Proposal No. 4: Eliminate one or more (but not all) of the NC licenses from the 4.0 license suite.

• BY-NC [Note: please visit the 4.0/Treatment of adaptations page to comment on this proposal.]
• BY-NC-SA
  • Pros: BY-NC-SA and BY-SA are incompatible, creating two corralled reciprocal commons.
  • Cons:
  • Other comments:
• BY-NC-ND
  • Pros:
  • Cons:
  • Other comments: The most conservative CC licence and potentially a 'stepping stone' to more liberal licences. Question: what use cases have emerged for By-NC-ND?

NC Proposal No. 5: [deleted and combined with NC Proposal No. 1 to avoid redundancies]

• Pros:
• Cons:
• Other comments:

NC Proposal No. 6: Explicitly state that NC licences are non-free, non-libre and non-open licences

• Pros: Because 'free' and 'open' are publicly recognised terms with value, making it clear that NC works are not free and open will encourage the use of other licences.
• Cons: The terms 'open content','open gaming' and 'open educational resources' have been used broadly to include NC content. The battle about the meaning of open is just beginning as it is increasingly being appropriated by monopolists for example the publishing companies that claim that their ARR works are gratis open access. Unlikely to satisfy those who think that NC licenses should be eliminated.
• Other comments: A milder form of Proposal 3

NC Proposal No. 7: Replace/transform NonCommercial license with/to NonProfit-License

• Pros:
• Cons: Non Profit is no easier to define than Non Commercial so no legal precision is gained.. Incompatibility with works licensed under NC licenses.User confusion about the difference between two similar but not identical terms.

NC Proposal No. 8: Provide ways for users to clarify what questionable uses they are willing to allow

• Pros: Removes the ambiguity of the NC license
• Cons: Creates a splinted mess of potentially non-compatible sub-licenses. Creates legal uncertainty. What the license means becomes subject to communications outside of the license. Increases transactions costs for the licensor who must make many more decisions.
• Other comments: In educational use, I often want to have CC-NC licensed materials printed through print-on-demand companies. It is unclear whether this is commercial or not, since the printing company is certainly making a profit. It would be nice if the copyright holder could specify whether they allow cases like this.
• Other comments: This may fall under the waiver options available to licensors and therefore be unnecessary. ("A licensor may always grant more permissions than are granted by our licenses. The 3.0 licenses specifically contemplate a waiver or consent as long as the waiver or consent is in writing and signed.") In the example above, adding some text about the waiver conditions next to the CC license should suffice. Creating an automated waiver system might be a more useful approach.

NC Proposal No. 9: Create a new CC license, NC-EDU, that prohibits non-commercial uses, but allows educational uses.

This proposal is explained on the cc-licenses list in a post of Dec. 12, 2011 by Brian Carver. The proposed language defining the "educational use" exception is:

an exception for "...performance or display of a work by instructors or pupils in the course of teaching activities of an educational institution, in a classroom or similar place devoted to instruction or as part of instructional activities transmitted via digital networks..." Amendments and refinements are welcome.

The license-chooser would also be modified to ask "Permit educational uses?" as a follow-on option to those that select "NonCommercial."

• Pros:
  • This does not make the license suite more confusing because many who choose "NonCommercial" do not intend to prevent the use of their work for these educational purposes, but rather wish to prohibit the direct sale of their work. The suggestion is that providing this option would allow those choosing an NC license to better express the intentions they've had all along, making the suite less confusing and a more accurate reflection of user intentions.
  • This is a better alternative to doing nothing because currently many individuals choose the NC option and that material is then unavailable, as a practical matter, for educational uses. Those that are inclined to choose NC will not typically choose merely BY or BY-SA, etc. However, they are not typically considering the negative impact on educational uses when they choose NC and would do otherwise if given the option. Every individual that then chose NC-EDU rather than merely NC would thereby increase the material easily re-usable in educational contexts and this would be a massively good thing.
• Cons: license proliferation, undercuts the trend to increasing use of CC By for OER's, shifts definitional uncertainty from problems with defining non-commercial to the even harder problem of defining education/teaching. This definition privileges people in developed countries who can pay for formal education rather than those in developing countries who seek to use copyright works for non formal educational use. The name seems seems likely to suffer from the same marketing problem as the development license, potential licensors thought that the license was intended for use by developing countries, rather than by anyone who wanted to allow use in a developing country.
• Other comments:

'NC Proposal No.10' Define NC transactionally so that it is legally certain

Proposed Definition: commercial use is the transactional use of the work; that is selling, bartering, or letting the copyright work or including the work in a paid for advertisement (and the like)

• Pros: clear, simple, certain,applicable to every possible situation, all over the world. Defining the term non commercial has given rise to a great deal of debate. By contrast all legal systems have definitions of sale, letting, bartering and the like.
• Cons: motivated by legal certainty rather than the sentiments of a user community, it will eliminate a topic of endless discussion from cc community lists, there is the possibility of incompatibility with work licensed under previous versions of the NC license but then how much are NC works remixed?

• Other Comments

Please add other NC proposals here, and number them sequentially.

Related debate

We encourage you to sign up for the license discussion mailing list, where we will be debating this and other 4.0 proposals. HQ will provide links to related email threads from the license discussion mailing list here.

• Some thoughts on non-commercial, thread started by Heather Morrison
• Proposed new language for NC clause, thread started by Heather Morrison

Relevant references

Please add citations that ought inform this 4.0 issue below.

• Presentation by Mike Linksvayer at the CC Global Summit on 17 September, 2011: "The definition and future of noncommercial" presented some very high level history, considerations, and options for NC in the 4.0 suite.
• Hagedorn G, Mietchen D, Morris R, Agosti D, Penev L, Berendsohn W, Hobern D (2011) Creative Commons licenses and the non-commercial condition: Implications for the re-use of biodiversity information. ZooKeys 150: 127-149. (Authors recommend CC rename/rebrand and add visual and explanatory cues to the NC licenses to distinguish them from fully open licenses, and to pursue clarification of the NC definition, referencing upcoming 4.0 work.)
• Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” was published 14 September, 2009; particularly relevant sections include Section 4.1, Import for Creative Commons Noncommercial Licenses, and Section 4.2, Recommendations on Using CC Noncommercial Licenses.
• The Case for Free Use: Reasons Not to Use a Creative Commons -NC License is the most widely read critique of the NC term as non-free/open.
• Article by Joshua Benton from the Nieman Journalism Lab dated 8 November, 2011: "Wired releases images via Creative Commons but reopens debate on what "noncommercial" means."
• A debate between free culture advocate Nina Paley and Creative Commons pioneer Cory Doctorow over the NonCommercial licences. Of particular note is Doctorow's distinction between 'industrial' and 'personal' use.
• [1] Appeal Ruling by the United Kingdom Information Appeal Tribunal on commercial use of information in a university. This ruling is not about Creative Commons licenses but shows how a court is likely to approach the issue of whether a public university is engaged in commercial use.

Notes