4.0/NonCommercial

Treatment in Drafts

(expand to read Draft 1 treatment)

Draft 1 In this initial draft, we chose not to alter the definition of NonCommercial. While many community members have expressed concern about the ambiguity of the license definition, we do not believe there is a sufficiently clear or compelling alternative presented yet meriting a change. We look forward to receiving more input about the definition of NC and related proposals during this public comment period. Please note we have changed the structure of the NonCommercial condition slightly by defining NonCommercial at the beginning of the license (rather than defining commercial purposes in the conditions section as in v. 3.0). This is a shift in format only and is not designed to affect the scope of the NC licenses in any way.

(expand to read Draft 2 treatment)

Draft 2 After much consideration, we are settled on preserving the existing 3.0 treatment of NonCommercial for 4.0. This will be a disappointment for some, a relief for others. However flawed the current definition may be, it is one that our community has become accustomed to and relies upon. A proposed alternative would have to be extremely compelling to justify disrupting those expectations, and though those made had many merits, they fell short of that difficult standard. Upon close review, as much as the proposed alternatives attempt to provide additional clarity around particular uses, they simultaneously introduce new, additional layers of uncertainty for licensors and licensees. Staying with the existing provision has the added benefit of preserving consistency in scope between versions, an important feature for those using a 3.0 NC license and counting on the limits it contains. This said, we want to honor a long-standing promise made over the course of many license versions, and intend to clarify what NC means outside of the license where possible. We will be working toward that clarification within a short period following the launch of 4.0, if not sooner. Now, we think the better course is to look strategically at the NC licenses and explore in earnest the several proposals relating to branding, communication and similar. Look for those proposals to be framed for discussion shortly, and the prior discussion threads on these topics re-started. One minor edit has been made to the definition, to clarify that exchange of an Adaptation of the licensed work for other copyrighted works is NC as long as no money is exchanged. In regards to this particular term, as important as this provision has been (and it will remain in 4.0), we think it important to be clear in our communications that it is not a general rule of barter but instead a specific exception introduced to address a known concern. We also moved the provision limiting use of the work to NC purposes out of the license conditions section and into the license grant. This is the more appropriate place for what is effectively a major limitation on the license grant and not a condition per se on use of the work.

(expand to read Draft 3 treatment)

Draft 3 The word “private” has been removed from the definition of NonCommercial, so that it now reads “not primarily intended for or directed towards commercial advantage or monetary compensation.” This is not intended to be a change in meaning; however, we welcome feedback from those who believe that it will have a substantive effect. Proposal 11, renaming the license to “Commercial Rights Reserved”, was considered by CC. After a long period of internal, affiliate, and public consultation, we have decided not to pursue this proposal: the name of the license will remain unchanged. More details are available in the outcome statement on the mailing list.

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. 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) (discussion of this proposal is concluded: expand to read this proposal)

Pros: This is the only possible way to clarify the license. Licensors otherwise can claim they did not intend the liberal rewording. As a consequence, any licensee of a potential "liberal-NC-definition" would face with unmanagable legal risks. Cons: Potentially limits the utility of NC-licensed works. Other comments: Question; can the wishes of the most conservative of NC licensors be captured with legal precision? This may not be necessary. Strictly, the license is very conservative, due to the wide-ranging consequences of using "commercial advantages". The only necessary action is to clarify and explain this better to avoid the common misunderstandings like confusing non-profit commercial activities (where using a work for free does give the non-profit entity commercial advantages) with non-commercial itself. Treatment in 4.0: CC will not be changing the definition of NonCommercial with version 4.0.

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) (discussion of this proposal is concluded: expand to read this proposal)

Pros: Potentially increases the utility of NC-licensed works. Cons: See No. 1 above. Every liberal use of the license would have to validate whether the work has been relicensed from a 3.0 license, and if so, contact every earlier contributor to find out whether they agree with a more liberal definition. NOTE: If we clarify the definition in 4.0, it will only apply to those applying the 4.0 license. Those licensors will be aware of and bound by the new definitions (as well as all revised license terms). It won't affect how the NC definition is interpreted from prior versions. In the case of remixes of NC-licensed works from prior versions, multiple definitions may apply. The practical result in that situation would be that licensees would comply with the more restrictive prior definition. Note that this concern about remixes will apply to all proposed changes in 4.0. 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? Treatment in 4.0: CC will not be changing the definition of NonCommercial with version 4.0.

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. 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

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. 9: Create a new CC license, NC-EDU, that prohibits non-commercial uses, but allows educational uses. (discussion of this proposal is concluded: expand to read this proposal)

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. The definition offered 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. Rebuttal: License proliferation, where it actually conforms license usage to user intentions, is an improvement of the current situation, not a problem to be overcome. It is unclear how this would undercut the use of CC By for OERs, because the argument is that those who are inclined to choose NC are already not those who would be willing to choose BY. What this does is take that group that wants to prevent certain commercial uses through NC and gives them the option to open up the work to EDU uses, which vast numbers of those that choose NC would agree to. A proposed definition of "educational" uses is provided above, so there is no definitional uncertainty. There is also nothing in this definition that privileges formal education in developed countries. Developing countries also have "educational institutions" and so are covered by the proposed definition. Please provide more detail on what a "non formal" educational use of a work outside of an educational institution would be that would not be covered by fair use or other limitations and exceptions to copyright. The definition already allows for instructional activities transmitted via digital networks and so if there is another non-institutional use case that should be included, then it could be. Without a specific example impacting large numbers of users, there is no reason to think that the proposed definition would not provide coverage to an enormously large group of educational users who would benefit greatly from this license option. Other comments: Creative Commons has an opportunity to become a leader in the OER space here and should take hold of it and run with it. Treatment in 4.0: CC will not be creating a new license in the 4.0 process.

NC Proposal No.10: Define NC transactionally so that it is legally certain. (discussion of this proposal is concluded: expand to read this proposal)

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: Specific proposal discussed on license mailing list here. Treatment in 4.0: CC has decided not to change the definition of NC in the 4.0 process.

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.

NC Proposal No.12 Define NC to specifically allow educational uses. (discussion of this proposal is concluded: expand to read this proposal)

Proposed language: "(f) NonCommercial means not intended for re-sale or re-use of the Licensed Work for private monetary compensation (for example, as a means to attract advertising revenue). For purposes of this Public License, the exchange of the Licensed Work by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange. For the avoidance of doubt, educational use - teaching and learning - is Noncommercial, and permitted by this Public License, while including the content in a package intended for sale to educational institutions for profit is Commercial, and prohibited by this Public License. Web-based or other discovery services that rely on advertising revenue, such as search engines, may use advertising IN CONNECTION WITH THEIR SERVICES in connecting searchers to this content; this does not constitute commercial use of the content. Advertising that constitutes exploitation of the content for commercial purposes, such as advertising inserted into a derivative, advertising that readers are forced to watch before viewing the content, creating the impression of sponsorship, or advertising that implies that the creator endorses the advertised product, constitutes commercial use and is prohibited by this license." More information on this proposal is available at these threads Some thoughts on non-commercial, Proposed new language for NC clause and Update on proposed new language fro NC clause, started by Heather Morrison. Pros: Clearer definition provides more guidance for users of licensed works. Cons: Similar to those listed above for proposal 9, "shifts definitional uncertainty from problems with defining non-commercial to the even harder problem of defining education/teaching." And proposal 2. Treatment in 4.0: CC has decided not to change the definition of NC in the 4.0 process.

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