1709 Blog: for all the copyright community

Tuesday, 17 March 2015

How commercial is "non-commercial"? A reader asks ...

One of our readers has written to this weblog to ask about the position under copyright law where teachers seek to use Creative Commons non-commercial (CC-NC) images in a lesson in which students are actually paying to attend the class. Says our reader by way of personal opinion:
"The use of the image does not seem to fall within CC terms of “primarily intended for or directed toward commercial advantage or private monetary compensation” -- but there could be different interpretations. In the United Kingdom as in other countries, many educational organisations now need to charge for attendance, including universities. The only definitive advice I can find is in this document ["Free Knowledge Based on Creative Commons Licenses" by Paul Klimpel] with a German viewpoint from 2012 which advises on avoiding NC licences".
Do readers have any ideas or personal experiences to share with our reader?


Photo Attorney said...

Good post on this issue: http://tushnet.blogspot.com/2010/05/modifying-cc-license.html

Anonymous said...

There is going to need to be a court case in order to decide this. Otherwise it stays a grey area.

Francis Davey said...

I dislike NC licences and, when talking to clients and also when giving open data training, advise against them.

That dislike is precisely because of the difficulty in deciding whether any use is, or is not, "commercial" in the sense defined in the licence itself. In my experience it often fails to achieve what the user of it actually intends to achieve.

Of course, everyone's mileage will vary.

CC do publish some guidance on what "commercial" means, but again it is unclear whether that additional gloss is or is not incorporated into the licence.

Anonymous said...

Note that "private" in "private monetary compensation" has disappeared from v4.0. The change in wording is meant to eliminate causes of confusion, not to change the meaning of the clause (see CC4.0 FAQ).

I agree with Francis and others that recommend against the use of NC for it can cause uncertainty and make the work not free (in fact CC defines its own CCPLs with the NC clause as "non free culture").

At the same time NC performs a great function in stimulating those who are hesitant in embracing CC licenses to use them, experiment with them, and even develop business models. While it is a grey area, it must also be acknowledged that not many cases exist on it, suggesting that parties tend to agree on its meaning in a fair amount of cases.

The fact that future case law will clarify its meaning: well this happens generally for legal concepts, even for those which sounded sufficiently clear...

Finally, as for the type of use (and for the fact that educational establishment charge a fee), the common understanding is that the commercial nature should focus on the type of use, not on the type of institution, its legal nature, and its funding system (not too differently from the wording of Rec. 42 Infosoc).



Francis Davey said...

Strictly speaking, the interpretation of "non-commercial" in the CC licence would depend on a factual assessment by a court of what the hypothetical objective observer with the same background knowledge as the parties have considered it to mean. In principle that could vary from situation to situation and thus it ought not to be possible for the question to be decided by a court.

This is a classic problem due to the fact that (in English law) construction of contracts is a mixed question of fact and law. Questions of fact can't (with some odd exceptions) be the subject of a precedent being questions that would have been decided by the jury and therefore not subject to stare decisis.

In practice courts are often influenced by other courts' decisions on the meaning of words in contracts and I am sure that a well-publicised decision by a senior court as to its meaning in England and Wales would be suitably influential, but the theoretical difficulty is still there.

Andy J said...

A question for Tom (and Francis). Are you aware of any caselaw involving CC licences on either side of the Atlantic? I have not come across any in the English and Welsh courts, but doubtless there have been one or two in the various district courts of the USA.

Francis Davey said...

And J: I am not aware of any effective litigation in the UK on the CC License. I would of course be very interested if some does happen.

Anonymous said...

CC maintains a web page where it tries to gather CC-related case law. There are not many of them (suggesting low "litigiousity" and a fair allocation of rights). No UK cases if I recall correctly, but a few of other EU MS and US.



Andy J said...

Thanks Tom. I will take a look at the wiki.

Anonymous said...

Interesting case from Germany involving the use of a CC-BY-NC image on a blogpost for radio - http://merlin.obs.coe.int/iris/2015/2/article11.en.html