Last month, TLC looked at what Non-Commercial in the Creative Commons license might mean. After a short explanation on why and how it was important to look at what Non-Commercial might mean, we highlighted the relevant language from the license itself, which says that you cannot use the CC licensed work:

in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

This month, we will see how the Creative Commons organization and others interpret this clause. Concluding that uncertainty remains, we will see that one prudent course of action is to ask explicit consent from the copyright owner to use a work for a particular goal, increasing security but possibly lowering the benefit of lowered transaction costs that Creative Commons offers.

What Creative Commons (The License Stewards) Says

The Creative Commons organization, as stewards of the license, is an authority on the license. Back in April 2005, Mia Garlick, then general counsel of Creative Commons, posted the following to the cc-education list:

Just to clarify a topic that has been the subject of some discussion on this list over recent days - the intended meaning of non-commercial as drafted in the CC-NC licenses is any use in a for-profit environment. The drafting of the license was intended to avoid any distinctions based on whether money changed hands or a profit was actually made. The relevant factor to consider is whether the entity making use of the work has profit as its primary motive.

Hope this clarifies things rather than raises more questions!

All the best,

Mia Garlick […]

After further discussion, Creative Commons published in January 2006 a first draft of Proposed Best Practice Guidelines To Clarify The Meaning Of NonCommercial In The Creative Commons Licenses. (And accompanying January 10, 2006 blog post of Mia Garlick: Discussion Draft - NonCommercial Guidelines.) With some additional explanations and a small preamble, the final Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercial” In The Creative Commons Licenses now resides at the Creative Commons wiki.

What do the guidelines say? The guidelines follow a workflow-like approach to answering the question what is and what is not Non-Commercial use. Both the kind of user and the kind of use are relevant.

As for the kind of users, allowed are private individuals, not for profits (educational or other) and service providers to these two categories of users. All use of a Non-Commercial licensed work by others would not be a noncommercial use and a license violation. (Which is not necessarily the same as a copyright violation, as the particular use might not be relevant for the applicable copyright law, or an exception under the law might be available.)
For the Japan picture book, I would qualify as an individual and am still golden.

Following the guidelines further, what kind of uses are allowed? I cannot use a NC-licensed work in an advertisement (not my own), make viewing an advertisement a condition for viewing the content, or use the work in connection with advertisements for which the work is the “primary draw”. This appears to draw on the “directed toward commercial advantage” language in the license; the later two options also seem to be more relevant for Web-based endeavors. Here also, for the book I should be fine with my intended use.

The next part of the guidelines seem to take the “private monetary compensation” language of the license as focus. The questions in the workflow concentrate on “money changing hands,” either in connection with a service provided in connection with the NC-licensed work(s), or in connection with the “verbatim” or “derivative” use of such work(s) if money is charged for using the new work(s) that make use of the NC-license works. Although you would have to pay for the printing and shipping of the book, as I am not receiving any money from it, I would argue that this is only incidental to a service being provided to me as “an allowable NC user” and I should still be fine.
Like Eben Moglen’s explanations on the GPL, the explanations of Creative Commons, the license stewards, on what Non-Commercial might mean is authoritative but not conclusive. At the end of the day, both legally and practically, what matters is what the creator and the user (the licensor and the licensee) could understand the Non-Commercial license term to mean.

What Creators Say

So, let us see what some creators have understood the Non-Commercial element of the Creative Commons licenses to mean.

On the initial user-based distinction of the CC guidelines, David Wiley, over at the Iterating Toward Openness blog, remarks how MIT OCW (Open Course Ware) has added an explanation of what MIT understand Non-Commercial to mean in the license as they apply it, and how no distinction is made on the basis of the user by MIT, contrary to the guidelines of Creative Commons:

Materials may be used by individuals, institutions, governments, corporations, or other business whether for-profit or non-profit so long as the use itself is not a commercialization of the materials or a use that is directly intended to generate sales or profit.

Then, to give an example of a creator taking issue with a particular use by a commercial company, Niall Kennedy described in December 2005 how Microsoft had used one of his BY-NC 2.0 licensed photos from Flickr on a corporate blog promoting Vista:

Microsoft used the image I shot […] without attribution and to commercial advantage, in violation of the Creative Commons by-attribution non-commercial license attached to the work.

(Via Denise Howell.)

And finally, my response to a request to use a picture of a Pecha Kucha night in Rotterdam that I had posted to Flickr, under a BY-NC-SA license (the default for Flickr):

This is [..]. I posted a story on Pecha Kucha, and its growing social scene. I found that many people on Flickr from all over the world were sharing photographs relating to the story. I wanted to see if you would be interested in contributing.

My post is on NowPublic, which is a news sharing community that relies on stories, photos, & videos from sources like you.

Would you be interested in sharing them with our members?

While I greatly appreciated being asked and was ready to share / approve the use, I stopped short of creating the required account at the site.

My response:

Re-using my pictures is fine, where it not for the sign-up. I won’t sign-up, but feel free to re-use the pictures you indicated, and see this e-mail as the corresponding permission/license to use them for NowPublic.

Perhaps if you look for pictures with PechaKucha as tag and “commercial” as part of their cc license?

Anyhow, while to my enjoyment I corresponded a little back and forth with the author of the story that wanted to use the picture, the processes at the site were set-up so that you needed to sign up, permission to use the work or no, and about 37 pictures but mine now grace the news item. (See Jason Pearce for a similar story.)

Which brings me to my final point, and the approach I am likely to follow when sourcing additional pictures for the Japan picture book: When in doubt, ask.

And Choosing A Prudent Course Of Action: At Increased (Transaction) Costs

One of the greatest benefits of Creative Commons is that it is easier for creators to apply a permissive license to their works, and for users to re-use (“rip, mix and burn”) such permissively licensed content. As there is still, and might always be, a grey area between what clearly is, and what clearly is not noncommercial use, legal uncertainty remains.

I can see two sensible approaches to this uncertainty. One, do not use NC-licensed works when you are in doubt as a user that your particular use is in fact non commercial, and after stopping to imagine how the creator might feel about a particular use. This limits the pool of available works considerably, for example by about 75 percent for pictures taged “Kyoto” on Flickr. If that is a problem, or you first came across a particular work you would like to use, only to see that a CC license containing the NC element was applied, you can try and obtain permission for the particular use. As most CC-licensed works can be found on the Internet, it should also be relatively straightforward to ask permission for a particular use from the creator. Or in other words: when in doubt, ask. (Perhaps a nice approach in general as well, to let the creator know you are using a work.) However, having to go back to the creators who already applied a license increases transaction costs for the creators and the users, with diminished benefits of the Creative Commons set-up.

I for one would be surprised if I would see my NC-licensed photographs in a work that can be bought in a store, as it would be immediately evident to me who the user would be and how the particular work is used within the context of the book. So, even though when following the Creative Commons draft guidelines I end up using the works in a manner that is allowed, I intend to ask the creators whose works I would like to use in the Japan photography book if they are happy with it.

‡‡ [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: Screengrab from the result of a CC Search query.)

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.)

In 2007, it’s time to not only talk the talk, but also to walk the walk. Part of why I greatly enjoy being a lawyer in IT, Internet and media law is because there are so many people out there using (new) technologies and tools to shape their thoughts and create things that are beautiful, mesmerizing, evocative and provoking.

So, it’s time to join in the fun, and being a bit of a touche-à-tout, I have started to write and design an account of a trip to Japan that I took in between jobs in the spring of 2005, almost two years ago now. (It largely builds on a set of 100 pictures.) Of course, thinking a bit about this project, I quickly managed to come up with a number of legally-related questions surrounding it; not in the least because I am looking to use some (Creative Commons-licensed and public domain) content that is out there, and because I am looking to (re-)license the work under some type of Creative Commons license. So, while I work on the book in the following couple of months, Technology Law Culture (Netherlands!) will explore a number of legal issues that are likely to come up in the course of making and distributing it.

What to Expect?

I am not too sure what exactly to expect for the topics to be covered. Buzz-word compliant – and sometimes tangential – topics are likely to include: choosing an appropriate Creative Commons license (and changing your mind); what you might understand the non-commercial in Creative Commons to mean; monetization of your user-generated-content, or that of others; using and abusing API’s; the user-centric web, Greasemonkey and unintended uses of websites; and public domain works and their reproduction.

Admittedly, the series approach is a departure from the previous focus of this blog (what, TLC has a focus?) of reporting on legal developments (including court cases) in the field of IT and media law in the Netherlands. Those post are likely to continue as events happen, but the idea of a series of posts centered around the production of the Japan travel account is to have a central point to return to, and to show and illustrate, by first-hand experience, a number of the legal issues surrounding digital DIY.

Why Now?

Are you still giddy from being picked as Time’s person of the year for 2006? So am I, it’s like 1996 all over again ^^, except that this time we are with more users, and have more bandwidth, more content, and more tools to play with. And with that comes more responsibility, and more need to take others, and their interests and intentions, into account. In the wake of large-scale production, distribution and consumption of digital content on the Internet, a number of the legal questions that have come up before are coming back, and we need to come up with answers at one point. I am looking forward to participating in asking and hopefully answering those questions, as a lawyer and as a user. Untill next month, when we will pick a CC license for the book.

‡‡
[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: me, having some participatory fun with colleagues in Tokyo. Some rights reserved.)