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 to download your works and share them with others as long as they mention you and link back to you, but they can't change them in any way or use them commercially.

CC Licensing Considerations

The aspect of CC licensing that is most controversial is the non-commercial (NC) clause (Commonwealth of Learning, 2007; Hofman & West, 2008; Rutledge, 2008). There are several reasons for this, including at the most basic level, what 'non-commercial' in fact means. Since CC licences are a new phenomenon within copyright law, little previous case history exists to assist in interpreting this clause. The most extreme interpretation of non-commercial is that no money should change hands as part of the process of using of the materials. However, Hofman and West (2008) note that this is not how non-commercial is usually interpreted. A transaction is not commonly seen as commercial when it includes refunding for expenses such as travel, for example. The transaction becomes commercial when making a profit is the purpose of the transaction. Similarly, writing from the CC perspective, Rutledge notes that:

"CC considers intent to be the primary test of whether a use is noncommercial. If the intent of a particular use is to generate profit, that use is commercial. Under this reasoning, cost recovery per se is not a commercial use (Rutledge, 2008)."

While this approach may seem intuitive, many legal examples could be found demonstrating the complexity of defining 'intent'. The Commonwealth of Learning (COL) Copyright Guidelines specifically address the issue of the NC clause and note that profit and cost recovery, which includes operating costs, should not be confused. This means that an organisation may still charge registration fees, recover materials duplication costs and overhead costs incurred during customisation, duplication and distribution of materials. The COL guidelines continue to note that:

"If an institution declares and/or pays a net profit to shareholders, and a part of the net profit emanates from the sale of learning materials marked with the NC clause, a calculation should be done to determine the amount of net profit that has been earned by that section of the materials that has been marked with the NC clause. This is the critical point when the NC and non-NC materials differ. Organisations that provide materials without the NC clause have accepted that the materials they offer may be used to profit any other organisations' stakeholders (in addition to covering all reproduction costs) (Commonwealth of Learning, 2007, p. 2)."

In working to better understand how the non-commercial clause is applied in different contexts, Creative Commons is conducting research into this issue (Rutledge, 2008). Rutledge ends her commentary by suggesting that readers