Licencing for ‘non-commercial’ use: not so simple

Last year, Creative Commons began a study of what people think of its ‘non-commercial’ licence, and yesterday the report was published. Creative Commons licences are ready-made licences that you can put on your work to make it clear to others what they can do with that work. CC licences encourage sharing, and they cut out the hassle of dealing with permissions requests.

One of the optional features of a CC licence is to allow ‘non-commercial’ use, but it’s really hard to define what that covers. The new study doesn’t try to define ‘non-commercial’ in more detail. Rather, in the open spirit of the Commons, it records the views of people who use CC licences. Those views are not very surprising. Importantly, the report emphasises that putting a non-commercial licence on a work can be a bad idea, if your intention is primarily to share.

All CC licences include Attribution (abbreviated as BY): if you remix or redistribute a CC-licenced work, you have to say who the original author was. From there, licences may include any of three other conditions:

  • Share Alike (abbreviated as SA): if you remix or redistribute my work, you have to put the same licence on your version.
  • No Derivatives (abbreviated as ND): you can’t use part of the work in something else or make changes to it.
  • Non Commercial (abbreviated as NC): you can’t use the work for commercial purposes.

(I’ve put a BY-SA licence on my writing on this website, see the bottom of the page.)

But there’s always been a problem with identifying what a commercial purpose really is. The actual wording in the long form of the licence says you can’t use the work in any way that is “primarily intended for or directed toward commercial advantage or private monetary compensation”. That sounds useful, but if you start looking at real-world situations one by one, it gets fuzzy fast.

A common example is a website that shows others’ NC-licenced works. If that site makes any money from advertising, is it using NC-licenced works commercially? The study says views vary on this case by case, depending on who owns the site and how much money they’re making.

Advertising isn’t the only example, though. Here’s another that we’ve discussed in working on Paperight. If I walk into a copy shop with a CC NC work on a flash drive and print it out, the copy shop makes money from that print-out. Is the shop bound by the terms of the licence? We’d certainly say the copy shop is bound by copyright law not to let a customer photocopy a conventional, commercial textbook with its machines. So it becomes a matter of opinion whether the copy shop is bound by the CC NC licence in the same way. Cases like this can quickly reach absurdity: if I’m in an internet cafe and want to store a CC NC work (say, a short film) on a CD, and I go to the counter and ask for a CD to save to, has the internet cafe done exactly what the copy shop can’t: sell me a reproduction for money?

These silly reductions aren’t always helpful though. It’s simpler to say that almost any reuse of a work involves a commercial transaction somewhere, simply because the engine of distribution (computers, networks, printers, screens, and all the things that make them possible) is ultimately driven by money, albeit in little bits. The question of whether a use of a work is commercial or non-commercial is answered only in grey, sliding opinions about the amount of money involved. If your intention is to reach as many people as possible, then you need to allow for that, and let the engine run. (Freedomdefined.org has a useful explanation of reasons not to use CC NC.)

This is not to say a NC licence isn’t useful. It’s absolutely necessary in many circumstances. For example, I love the HSRC Press and Bloomsbury Academic model: they distribute books as free downloads, and make their money from selling the printed versions. (Bloomsbury Academic explicitly uses CC NC licences.) The model is bold, generous, and has numerous social benefits. But my copy-shop example above could easily damage their business. (Cory Doctorow’s novels, including his latest NY Times bestseller Little Brother, are licenced as BY-SA-NC, with the agreement of his publisher Tor/Macmillan. I’ll try to corner him for a conversation about this at TOC Frankfurt this year.)

So, even with the help of the new study, you still have to think carefully about using NC, and whether it suits what you want to achieve.

My rule of thumb: if you’re using a CC licence as a way to promote your work, but you need the income that sales of copies would generate, then add NC to your licence. If you’re using a CC licence because you want to share it with lots of people, and you don’t need to sell copies, don’t use NC, and enjoy the idea that others have a financial incentive to spread your work. It’s very, very unlikely that they’ll make their fortunes from it. If you simply add Share Alike instead of NC, no-one can monopolise the fruits of your labour, and the engines of distribution can do their work.

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