Difference between revisions of "4.0/NonCommercial"

Treatment in Drafts

Overview

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. 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:
  • Many who have no commercial interest choose the NC license because they believe it is the "more valuable commons", the one that they would like to see advanced. They are not aware of the practical differences between non-commercial and non-profit or charity work, and of the practical problems in using NC-licensed by any organized entity.
  • Would narrow the CC brand to more "open" licenses, which would be useful because of the vast swaths of people who think of CC-licensed works as just one thing and do not differentiate between license options.
• 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.
  • Risks alienating many major NC adopters.
• Other comments: The majority (albeit a diminishing majority) of CC works are NC-licensed
• Practical proposal for "otherwise stand apart": change the name and code from Noncommercial/NC to "Commercial Rights Reserved"/"CRR". This expresses more closely the actual terms of the present NC license and indicates that the use of this license is for those who intend to commercially sell their works, rather than the "commercially not interested ones" (which currently may often identify themselves with NC). This proposal is discussed in detail on the license mailing list here.

Treatment in 4.0: CC has decided to keep the NC licenses under the CC name. However, we will be improving messaging and information around the use and meaning of NC.

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?

Treatment in 4.0: CC has decided to keep the NC licenses under the CC name. However, we will be improving messaging and information around the use and meaning of NC.

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

Treatment in 4.0: CC will be improving messaging and information around the use and meaning of NC, including making greater distinction between the openness of the licenses with and without the NC and ND conditions.

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

• Pros:
• Cons: Non Profit may be impossible to define with legal precision. Incompatibility with works licensed under NC licenses.User confusion about the difference between two similar but not identical terms.

Treatment in 4.0: CC has decided to keep the NC licenses under the original name. However, we will be improving messaging and information around the use and meaning of NC.

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.

Treatment in 4.0d3: CC already allows waiver of conditions of the license, as well as additional permissions through the CC+ mechanism. In the d3 discussion period, CC is continuing to look into standardized options for granting some commonly desired permissions.

NC Proposal No.11 Rename NC to CRR to clarify real function plus reduce incompatibility by providing NC/CRR term only time-limited.

Proposed Definition: The "CRR" = "Commercial rights reserved" license requires all licensees that would have commercial advantages from using a work to negotiate individual contracts with the licensor. The CRR restriction expires after the year named by the licensor in parentheses after the CRR, this may be a maximum of 20 years from the time of licensing.

In version 4.0 CC would not provide a direct successor for CC BY-NC or CC BY-NC-SA, but the CC 4.0 license chooser set would include in 2012: CC BY-CRR(exp-2017)-SA CC BY-CRR(exp-2022)-SA CC BY-CRR(exp-2032)-SA

The CC license chooser would be updated each year to reflect the 5, 10, 20 year terms. Licensors would be free to choose shorter terms, but license legal text contains a clause that allows a maximum duration of such a license is 20 years. Thus CC does not support, in the year 2012, an exp-2042-term (but in 2022 it does).

Legal text ("primarily" dropped, otherwise unchanged): You may not exercise any of the rights granted to You in Section 3 above in any manner that is 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. The maximum duration of the CRR condition is limited to 20 years. The licensor may choose a shorter term however. On January 1 of the year following the year given after the codeword "exp" in the license, the CRR condition is no longer applicable and the license reverts to an CC BY-SA license.

• Pros: Less misunderstanding of the NC/CRR clause as something with primarily positive connotations, no longer mistaken as something that is more desirable than commercial. Time limiting the NC/CRR clause reduces the license incompatibility proliferation. Dropping the distinction between CC BY-NC and CC BY-NC-SA reduces the confusion about how to fulfill the commitment in the absence of the SA clause. The license is practical, transparent, and fosters re-use. If the expiration would be given only as a duration ("20 years") licensees would have to research the licensing date, which is often not practical.
• Cons: Time-limiting causes minor problems for websites like blogs where the entire website carries a single license (rather than individual works). However, the owners of the site can change the license each year, giving an increased year.
• Other Comments: Other proposals relating to time-limited conditions are addressed here.

Treatment in 4.0: After an extensive consultation about this proposal, CC has decided to keep the NC licenses under the original name. However, we will be improving messaging and information around the use and meaning of NC, including its relationship to commercial rights.

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.

• Debate about NC, re-branding, changing the definition, and other solutions, thread started by Kerrick Long

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