Page:Creative Commons licenses and the non-commercial condition - Implications for the re-use of biodiversity information.pdf/10

136 that relate to recovery of costs, such as printing, postage, and even salaries, since cost recovery cannot reasonably be assumed to be a primary commercial motive. While this is a reasonable position in connection with monetary cost recovery, it remains doubtful whether it also eliminates concerns about gained or lost non-monetary commercial advantages.

In general, “intent” can be problematic to assess. Legal case history for assessing the non-commercial (or non-profit) status of individual actions in which an NC-licensed work is used is probably limited to District Court of Amsterdam (2006). However, a rich case history is available in most jurisdictions for the analogous case of assessing the non-profit or charity status of organizations for taxation purposes. Similarly to the CC NC licenses, such assessment goes beyond a simple calculation of profits. A non-profit organization may make losses in one year and profits in another without threatening its non-profit status, and a for-profit organization making losses several years in a row cannot simply claim a “non-profit” status for taxation purposes. Taxation status is typically assessed by a complex set of rules, governed by law, but in detail often defined by individual taxation authorities. Despite a long case history and detailed assessment rules, it is possible that an organization achieves non-profit status in one taxation district, and fails to do so in another. Assessing the non-commercial intent of individual actions in court may be vastly more complicated.

Re-use options of NC-licensed works

The CC NC clause defines wide-ranging limitations to protect the commercial interests of the creator or copyright owner of a work. In our understanding, the following conditions determine whether an NC-licensed work may or may not be re-used:

1. Any natural or legal person or organization, including commercial enterprises, may exercise licensed rights over an NC-licensed work. The ability to re-use, copy, or derive from a work depends on the context and goal of the activity, not on the type of legal entity exercising the rights.

2. Charging money for the work as a means to obtain a profit is clearly prohibited; there will be little doubt that this has been the primary intent when exercising the rights granted by an NC-license.

3. Charging money for the work as a means to recover cost seems initially prohibited. The license text uses the term “compensation” rather than “profit” or “gain” and stresses that this principle is to be upheld even in the case of exchanging works. However, cost recovery is likely permitted if a different primary intent and direction can be demonstrated.

4. Regardless of profit or cost recovery, the use of a licensed work may lead to (non-monetary) commercial advantages. Arguably, most uncharged uses of a work can be interpreted as an advertisement, and increased public recognition is generally seen as an advantage for any legal entity participating in commerce. Users of NC-licensed works must thus demonstrate that the use is neither primarily intended for, nor directed towards such increased recognition.