PROPOSED BEST PRACTICE GUIDELINES TO CLARIFY THE MEANING OF “NONCOMMERCIAL” IN THE CREATIVE COMMONS LICENSES

What role do these guidelines play?

These guidelines are a discussion draft only. They are not finalized and they do not represent a definitive explanation of what "NonCommercial" means, in particular they do not represent a definitive statement as to what Creative Commons defines "NonCommercial" to mean.

The purpose of these guidelines is twofold: (1) to demonstrate that it may be possible to reconcile competing views about what NonCommercial means and to provide a flexible set of parameters within which people can understand the term; and, (2) to elicit feedback about whether these guidelines accurate reflect the community's (including both licensors and licensees) understanding of the term.

Explanation

The purpose of these guidelines is clarify some of the easier use cases of what does and does not constitute a permitted noncommercial use under the Creative Commons licenses that contain the NonCommercial license element. These guidelines are not intended to be exhaustive but are instead intended to assist creators and users to better understand the scope of permitted uses.

These guidelines apply to those activities that exercise a right licensed under the Creative Commons license, ie. the act of copying a work or distributing a work. It does not apply to an activity that constitutes a fair use of a C-licensed work. It also does not apply if, for example, you use the ideas expressed in a work.

A. Nature of the User:

(1) Is the person making use of an NC-licensed work an “allowable NC user” under the noncommercial license condition? Allowable NC users are:

(a) an Individual

(b) a Nonprofit educational institution/library,

(c) a Nonprofit organization as defined under US or equivalent law¹ , (together with (a) and (b) “allowable NC users”)

(d) A commercial copy shop, ISP, search engine, content aggregator, blog aggregator site or similar service provider who, in the course of providing a service at the direction of the allowable NC user, may exercise a right licensed under the Creative Commons license.

(i) No. License violation – this is not a noncommercial use.

(ii) Yes. Continue to Question B.

B. Nature of the use: Advertising

(1) Is the NC-licensed content being used in an advertisement for third party products or services? For example, is Brian’s CC BY-NC licensed photo of the Eiffel Tower being used to advertise bottled water made by Shaun’s company.

(i) Yes. License violation, this is not a noncommercial use.

(ii) No. Continue to the next question.

(2) Is viewing of an advertisement for third party products or services required as a condition of accessing or viewing the NC-licensed content (eg. “click-through” advertising)? For example, in order to view Mary’s CC BY-NC-ND licensed article, does a person first see an advertisement for a car.

(i) Yes – license violation; this is not a noncommercial use.

(ii) No. Continue to the next question.

(3) Is the NC-licensed work being used in connection with advertisements for third party products or services where the NC-licensed work is the primary draw or a is substantial amount, both qualitatively and quantitatively? For example, does a podcast consisting solely of CC BY-NC-SA licensed music have ads for a record store at the start and end of the podcast.

(i) Yes - license violation; this is not a noncommercial use.

(ii) No. Continue to the next question.

C. Conditions on Use: For Services Provided

(1) Is money changing hands in exchange for a service provided in connection with the NC-licensed work? For example, is a copy shop charging for the service of making a copy or is a search engine receiving ad revenue for ads served up when searching for NC-licensed content.

(i) No. Continue to Question D

(ii) Yes, continue to the next question.

(2) Is money changing hands for a service being provided to (in the case of, for example, a for-profit copy shop) or by an allowable NC user incidental to the use of the NC-licensed work (e.g. course packs provided by an educational institutions)?

(i) Yes - this is a noncommercial use.

(ii) No, continue to Question D.

D. Conditions on Use: Original work

(1) Is there any money changing hands in any one of the following ways in connection with the verbatim use of the NC licensed work?

(a) As a condition of using the NC-licensed work (eg. by levying a direct charge or charging subscription fees for access to NC-licensed work(s)), license violation – this is not a noncommercial use.

(b) As a condition of using another work that includes an NC-licensed work, where the NC-licensed work is either the primary draw or a substantial amount, whether qualitatively or quantitatively (eg. where an NC-licensed image is used on the cover of and as a central part of a book that is sold commercially), license violation – this is not a noncommercial use.

(c) As a condition of using another work that includes a verbatim NC-licensed work, where the NC-licensed work is not the primary draw or is an insubstantial amount, both qualitatively and quantitatively (eg. where one NC-licensed image is used in a book that is sold commercially and the image is not a thematically significant part of the book) - this is a noncommercial use (provided that there is no charge associated with directly accessing the work.)

(d) As an optional contribution (e.g. a tip jar, donations, membership drive) for an individual, an educational institution or nonprofit organization that uses the verbatim NC-licensed work or another work that includes a verbatim NC-licensed work – this is a noncommercial use.

E. Conditions on Use: Derivative Works

(1) Is the money changing hands in connection with a derivative use of an NC licensed work?

(a) If the derivative work based on an NC-licensed work is subject to a “ShareAlike” license condition, then the permitted uses of the derivative work should be assessed in accordance with D.

(b) For derivative works based on NC licensed work that are not subject to a “ShareAlike” license condition, money many change hands in at least one of three ways:

(i) As a condition of using a derivative work based on an NC-licensed work, of which the original NC-licensed work is the primary draw or a substantial amount, either qualitatively or quantitatively, of that derivative work (eg. where a commercially released short film is made using a CC BY-NC licensed piece of music and the music is the sole audio component of the film), license violation – this is not a noncommercial use.

(ii) As a condition of using a derivative work based on an NC-licensed work, of which the original NC-licensed work is not the primary draw or is an insubstantial amount, both qualitatively and quantitatively, of that derivative work (eg. a commercially released mash-up is made of a piece of CC BY-NC licensed music that is used only incidentally in the mash-up) – this is a noncommercial use.

(iii) As an optional contribution (e.g. a tip jar, donations, membership drive) for an individual, an educational institution or nonprofit organization that uses the derivative work based on the NC-licensed work – this is a noncommercial use.

IRS definition

The IRS definition of 501(c)(3) organization is an organization whose charitable purpose falls into one of the following categories: (i) religious, educational, charitable, scientific, literary, testing for public safety, to foster national or international amateur sports competition, or prevention of cruelty to children or animals organizations; (ii) and, whose operations are restricted in the following ways: (a) dedicate assets to charitable purposes; (b) service public purposes; (c) participate insubstantially in social activities; (d) participate insubstantially in legislative activity; (e) do not engage in political activity (e.g. do not accept contributions or make expenditures for the purpose of influencing or attempting to influence the selection, nomination, election or appointment of an individual to a federal, state or local public office or office in a political organization.) Note that we may have to limit the definition of “nonprofit” to only nonprofits that have a educational, charitable, scientific, literary (ie. not religious) purpose.