Page:Creative Commons licenses and the non-commercial condition - Implications for the re-use of biodiversity information.pdf/16

142 engage in commercial activities like buying and selling goods and services. They are potential buyers of copyrighted works; allowing them to re-use a work free of cost potentially diminishes the commercial revenues of the copyright owner. Copyright owners licensing their works under an NC license might well intend to apply a strict interpretation of non-commercial, so as to not lose potential profits from this market sector.

2. The phrase “commercial advantages” covers a very broad spectrum of activities, including advertisements, sponsoring, fund-raising, or any other activity that improves brand recognition or public relations of an organization or individual. The fact that this is widely ignored (Wild 2011; Benton 2011b) does not make it legal.

3. The CC Attribution-NC-Share-Alike license is incompatible with the CC Attribution-Share-Alike license. NC licenses therefore cannot be used on major collaboration platforms like Wikipedia or Wikimedia Commons (Möller 2007; Wikimedia Commons 2009).

4. The decision whether an activity is “primary” or “secondary” will be difficult to argue and decide in courts. For example, fundraising will primarily be directed towards monetary gain. This, however, may ultimately be intended to hire a person to work in nature conservation. Risk management will require careful documentation of intent and actions while running a project involving the re-use of NC licenses.

In conclusion, the licensing concepts “commercial advantages”, “primarily”, and “intent” are difficult to define and assess, resulting in a significant risk of litigation to private persons as well as organizations that use works supplied under an NC license. Being an educational or non-profit organization does reduce the likelihood of litigation in terms of frequency (because many licensors accept such use). For a given litigation, however, we fear that a substantial risk exists of losing the case.

Individual claims of license violation brought forward by copyright owners can often be settled out of court. In some countries an internet platform may further be covered by some form of a copyright infringement liability limitation privilege (e.g., requiring a take-down-notice). However, another threat to project sustainability may come from competitors in the publishing business which may consider a particular use of NC licensed works illicit. Depending on the specifications of unfair competition laws in a given country, they may attempt to acquire an injunction stopping any “license violations” that lead to unfair competitive advantages. Should they succeed, this would then require to remove all NC-licensed materials from a project.

In addition to managing legal risk, projects considering to re-use, disseminate, or create derived works under NC licenses may also need to evaluate their future project development options. For example, collaboration needs and cost-compensation schemes for the provision of content on an Internet platform may differ from needs and schemes for the provision of works in print, on offline media like CDs or as smartphone applications. Creative Commons recommends seeking individual permissions for any use of NC licensed content that may be controversial as to whether it is commercial or not (Linksvayer 2009). Especially if content is created and re-used collaboratively on a platform that leads to tight integration of the contributions, it may not be practical to later reverse