Japan Picture Book, 3: Non-Commercial CC Licenses, But What Does It Mean?
When licensing-out content under a Creative Commons license, one of the options available is to only allow “Non-Commercial” (NC) use of your works under the CC license, the opposite being that you allow commercial use under the CC license. But what does Non-Commercial mean? Both when using Creative Commons Non-Commercial licensed content, as when releasing original content under a Non-Commercial Creative Commons license, it makes sense to stop a moment and think about what Non-Commercial might mean, for you as creator, and for the licensor or licensee. What “Non-Commercial” might exactly mean is a question that has been asked before.
In this month’s post, TLC will take a look at what Non-Commercial, as one of the possible options of CC licenses, might mean, and how we are likely to apply it when looking for open content to use in the Japan photography book project. After explaining a little as to why and how we are looking at this question, we’ll see that the Creative Commons license itself, although concise on this point of Non-Commercial, possibly leaves room for interpretation. Next month, so as not to make this post too long, we will explore how the explanations as given by Creative Commons, as the license stewards, and by others, although all very helpful, do not seem to completely eliminate the gray areas present. Finally, given that there is some amount of (legal) uncertainty as to what non-commercial might mean, we will briefly look at how parties deal with the ambiguity in the NC clause of CC licenses, namely by checking and asking, thereby adding to the transaction costs of using Creative Commons licensed material.
Why and When is This Question Relevant?
First, a few words on why TLC stops to look at the meaning of Non-Commercial, as used in Creative Commons licenses, in the context of the Japan photography book project. First, in the book, pictures sourced from third-party sources will likely be used in the background design, in true digital DIY fashion, even where my own pictures are the main focus. Second, I am likely to use a print-on-demand (PoD) service for production and distribution, which means that at one point the book will be available through a public Internet market place, although I will most likely not make any money of it. (One of the main reasons this project came about is that iPhoto books and similar services allow for limited design freedom and become expensive quickly when above the standard number of pages. All I wanted were some cheap and nice looking books to give away ^^.)
So, as I am looking to incorporate content from others into a work that is to be made publicly available at a fee, it becomes relevant whether I should look only to use pictures of which the Creative Commons license allows for commercial use, or whether, since I am not likely to make any money of the book and it is in fact not my purpose or intent to make money of the book, I can also use images that use a Non-Commercial Creative Commons license. Important to note here is that more works are licensed under NC clauses; perhaps because it is sometimes the default for content hosting services that offer the option of applying a CC license.
Thus, when making a book incorporating Creative Commons licensed works available via a public Internet store front, would I be allowed to use works licensed under Non-Commercial Creative Commons terms? (What also comes into play is that my intention was to offer the entire book design, and my own pictures in it under a NC license, in which case I had to make sure that I could also include NC licensed work from others. And, as I might be making derivative works, I might have to share the results alike if source material were license under a share-alike (SA) license; but that is another question.)
What the License Says: Intent and Direction
The human-readable, or short, explanation of the Non-Commercial attribute (in this case, as part of the BY-NC 3.0 license) that Creative Commons gives is:
Noncommercial. You may not use this work for commercial purposes.
The actual license, or the non-human/lawyer readable code, says under 4.b that you may not use the licensed work:
[…] in any manner that is primarily intended [emph. added] for or directed toward commercial advantage [emph. added] or private monetary compensation [emph. added]. 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 explanation of Creative Commons, when picking a license, says:
The licensor permits others to copy, distribute and transmit the work. In return, licensees may not use the work for commercial purposes — unless they get the licensor’s permission.
And in the FAQ, under “Can I still make money from a work I make available under a Creative Commons license?“:
However, you, the creator of the work and/or licensor, may at any time decide to use it commercially. People who want to copy or adapt your work, “primarily for monetary compensation or financial gain” must get your separate permission first.
One thing to note on the noncommercial provision: under current U.S. law, file-sharing or the trading of works online is considered a commercial use — even if no money changes hands. Because we believe that file-sharing, used properly, is a powerful tool for distribution and education, all Creative Commons licenses contain a special exception for file-sharing. The trading of works online is not a commercial use, under our documents, provided it is not done for monetary gain.
That is it for the source material. Now what do people think this means?
Next Month: What the License Stewards and Others Say, and How To Apply It All in a Practical Manner
So as not to let this post run too long, next month we will take a look at what the CC license stewards, such as (former) Creative Commons General Counsel Mia Garlick, had to say on the matter, whether or not others agree with their point of view, and how people are dealing with the existing uncertainty on this point in practice. We’ll see how, in part, the way to deal with the license ambiguity is to ask for explicit permission to use a work in a particular context. In my opinion, this takes away one of the main (intended) benefits) of CC license, namely semi-automated (and machine readable and possibly machine enforceable) licenses. Until next month!
‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]
(Picture by: Screen grab from the CC search function of Flickr.)
