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)

• Pros:
• Cons:
• Other comments: See also Proposal No 5; a 2009 CC study found licensees tend to interpret NC conservatively.

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.

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:
• 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.

NC Proposal No. 5: Change the definition of NonCommercial in the licenses to match the wishes of the most conservative NC licensors. (e.g., deleting clause specifying that digital file sharing is a noncommercial use)

• Pros:
• Cons:
• Other comments: I spun this off from Proposal No 1, because as far as I can tell the example went further than the proposal (the proposal was to clarify the NC definition to be conservative; the example is about deleting a pre-existing part of the NC definition)

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.
• Other comments: A milder form of Proposal 3

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

• Pros:
• Cons:

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.
• 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.

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.

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.

Notes