Page:Creative Commons licenses and the non-commercial condition - Implications for the re-use of biodiversity information.pdf/11

Rh 5. One might perhaps be in doubt whether the concept of “commercial advantages” might be applicable to private individuals as well: For someone working as a gardener or professional biologist, the action of re-publishing a biodiversity-related NC-licensed work could be assumed to be directed towards financial advantages (e.g., self-advertisement to improve the chances of finding new employment). However, the mentioning of “private monetary compensation” may be interpreted to implicitly clarify that the (broader) concept of “commercial advantages” is not to be applied to private individuals.

6. In most cases, the allowed use of an NC-licensed work therefore hinges on the question of whether the advertisement effects are primary or not. The following thought examples may demonstrate that the legitimacy of using NC-licensed content may be difficult to decide. Assume that an NC-licensed image is used in these contexts:

a) A large for-profit soft-drink producer runs an advertisement campaign “better drinks for a more joyful life”.

b) A large for-profit company advertises their products with “50 cents from each purchase buys and preserves a piece of Amazonian rain forest”.

c) A large non-profit nature conservation organization runs an advertisement campaign to increase its paying membership base, with the ultimate goal to increase its financial and political abilities to serve the cause of nature protection. However, by doing so, it is competing with other nature conservation organizations.

Most readers would probably consider cases a) and b) a license violation, but formally all organizations might claim that this particular action is primarily intended for and directed toward a public benefit. Thus, with different degree of likelihood, in each of these cases, a court might or might not decide that the advertisement is directed towards commercial advantages, making the use of the work a violation of the license terms.

Software

Software programs are copyrighted works and can in principle be released under CC licenses. This is, however, not recommended (Creative Commons 2011b). Unlike most other copyrighted works, software can be used as a tool to create other works. With respect to NC licenses, the condition “You may not exercise any of the rights granted to You in Section 3 above in any manner that …” implies that software licensed under such a license (e.g., xper2, Ung et al. 2010; FRIDA, Martellos et al. 2010; or OpenKeyEditor, van Spronsen et al. 2010) may not be used to produce creative works or non-copyrightable data sets for commercial purposes.

This is not dependent on the presence of a Share Alike condition. A work created with the help of a software application is normally an independent creation. The cases where software generates derivative works are fairly limited, e.g., where software-created works are primarily derivatives of copyright materials embedded in the software (i.e. materials other than software algorithms or source code) or where the arrangement and formatting applied by the software to non-copyrightable data is actually the primary