NonCommercial interpretation

The NonCommercial license element

The NonCommercial (“NC”) element is found in three of the six CC licenses: BY-NC, BY-NC-SA, and BY-NC-ND. In each of these licenses, NonCommercial is expressly defined as follows:

The definition is intent-based and intentionally flexible in recognition of the many possible factual situations and business models that may exist now or develop later. Clear-cut rules exist even though there may be gray areas, and debates have ensued over its interpretation. In practice, the number of actual conflicts between licensors and licensees over its meaning appear to be few. ^[1]

This page sets forth fundamentals of how the definition of NonCommercial operates and should be interpreted from CC’s perspective as the steward of the CC license suite. We provide some key points to consider before choosing an NC license for your own work or before using an NC-licensed work.

NonCommercial explained

Creative Commons NC licenses expressly define NonCommercial as “not primarily intended for or directed towards commercial advantage or monetary compensation.” ^[2] The inclusion of “primarily” in the definition recognizes that no activity is completely disconnected from commercial activity; it is only the primary purpose of the reuse that needs to be considered.

The definition of NonCommercial is intentionally flexible; the definition is specific enough to make its intended operation and reach clear, but versatile enough to cover a wide variety of use cases. Narrowly or exhaustively attempting to prescribe every permitted and prohibited activity is an impossible task and, in Creative Commons’ judgment, an ill-advised one. Thus, the definition sets out a principle for determining what uses do and do not qualify, but does not list specific use cases (aside from peer-to-peer file sharing). ^[3]

Key points about the NonCommercial licenses

The NonCommercial limitation applies to licensed uses only and does not restrict use by the licensor.

As with all CC licenses, the NC licenses only restrict what a reuser may do under the license and not what the licensor (rights holder) can do. Licensors that make their works available under an NC license are always free to monetize their works.

NonCommercial turns on the use, not the identity of the reuser.

The definition of NonCommercial depends on the primary purpose for which the work is used, not on the category or class of reuser. ^[4] Specifically, a reuser need not be in education, in government, an individual, or a recognized charity/nonprofit in the relevant jurisdiction in order to use an NC-licensed work. A reuser that is not obviously noncommercial in nature may use NC-licensed content if its use is NonCommercial in accordance with the definition. The context and purpose of the use is relevant when making the determination, but no class of reuser is per se permitted or excluded from using an NC-licensed work.

Reusers may make NonCommercial uses only, even when reusing NC material with other works.

The NC licenses limit reusers to NonCommercial uses of the work only, which includes when the work is used in a collection or when it is adapted.

The NonCommercial term does not limit uses otherwise allowed by limitations and exceptions to copyright.

Nothing in the NC licenses (or any CC license) controls or conditions uses—even commercial uses—covered by an exception or limitation to copyright or similar rights, or otherwise controls any activity for which no permission under such rights is required. For example, a person may commercially use an NC-licensed work for purposes of criticism in jurisdictions where this is a fair use or otherwise covered by an exception to copyright. Similarly, because posting a link to a work does not require permission under copyright, a for-profit university may still include a link to NC-licensed courseware in a syllabus or on its paywalled website. In such cases, the CC license never comes into play and the NC restriction (and other limitations or conditions contained in the license) may be disregarded.

Explanations of NC do not modify the CC license.

Some licensors or website providers state expectations or interpretations about what NC means. Those explanations never form part of the CC license, even if included in terms of service or another resource designed to contractually bind reusers. CC strongly discourages the practice when such statements carve back (rather than expand) on reuses allowed by the NC definition or contradict the plain meaning of the licenses. When those statements are intended to bind reusers or to modify the CC license, no CC trademarks may be associated with either the work or the terms under which it is offered. For more information about CC’s license modification policy, visit this page.

The NonCommercial license is non-exclusive.

Like all CC licenses, the NC licenses are non-exclusive. This means that an NC licensor is free to offer the material under other terms, including on commercial terms. A frequently discussed use case for the NC licenses is a creator who wishes to allow NonCommercial use but also authorizes commercial uses in exchange for payment, such as through use of our CC+ protocol. Also, licensees are always free to contact licensors to ask permission to use the work for commercial purposes.

For a given work, permitted NC uses may still be restricted due to non-copyright rights.

Even if a use is NonCommercial for purposes of the CC license, it may still not be permitted because of other rights that prevent that particular use of the work. For example, a use that is otherwise NonCommercial could violate the publicity or personality rights of an individual featured in the work.

Choosing NC for Your Work

Before opting to use an NC license for your work, consider the following:

• The NC licenses may not permit uses of your work by others that you would like them to make. For example, not all educational uses are necessarily NonCommercial uses, so your use of an NC license may preclude use of your work in some educational contexts.
• The NC licenses may not be compatible with other works reusers wish others to remix with the NC-licensed content. For example, a person may not remix BY-SA content (such as Wikipedia content) with BY-NC content.
• Consider whether you have a commercial licensing stream -- or expect to have such a licensing stream -- that you want to protect, and whether the NC limitation accomplishes your goals. The NC licenses may not adequately protect that stream or other uses that you wish to restrict. For example, NC licensing does not stop commercial uses covered by limitations and exceptions (such as fair uses), and even noncommercial uses could affect the commercial market for your work.
• NC licenses may not be permitted under policies of institutions or publications you wish to create content for, or in line with the terms of grants that fund your work. Similarly, consider whether your publisher or any collecting society of which you are a member allows you to use a NonCommercial license, if any CC license at all, and how that affects your ability to collect royalties for commercial uses of your work. Keep in mind that CC’s definition of NonCommercial may differ from the definition used by your publisher or collecting society, so even if you can license your work for noncommercial purposes you may not be able to use CC’s NC licenses.
• Policymakers may wish to consider reasons supporting the use of a less restrictive license (such as BY) or the public domain (CC0) for publicly funded materials, and promote those options.
• NC licenses do not qualify as “open licenses” under the Open Definition, and works licensed under an NC license are not considered Free Cultural Works. This may be important if you want others to further distribute your work on Wikipedia, Wikimedia Commons, or other platforms requiring a license that meets the Open Definition or the Definition of Free Cultural Works.

Footnotes