Page:Creative Commons licenses and the non-commercial condition - Implications for the re-use of biodiversity information.pdf/7

Rh video and other media, and (with the exception of collections of works) the use of images in a new context. Even displaying ND licensed images in lectures or presentations may be prohibited. The license explicitly names synching of audio with video as an example of prohibited use of ND licensed works and a presentation is synching one media (e.g., an ND-licensed graph from a publication) with a live audio stream. While the ND condition may have useful applications for some works of art, we recommend avoiding it for copyrightable forms of biodiversity research documentation. To describe it by a biological metaphor: the ND license is sterile and cannot spread (Katz 2006).

The final condition is the “Non-Commercial” condition (abbreviated “NC”). This condition is widely used, but also often inadequately understood. The main topic of this article is the analysis of the implications of using this condition.

The “non-commercial” condition

The short description of the non-commercial condition of Creative Commons licenses is that one “may not use this work for commercial purposes”. The full license text is:

''“You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.” (http://creativecommons.org/licenses/by-nc/3.0/legalcode)''

The full text no longer uses the term “commercial purposes”, but only the concepts of “intent or direction” and “commercial advantages”. To our knowledge, the concept of “commercial advantages” is at present neither defined by CC nor in the law of most countries (Keller and Mossink 2008; Wilson-Strydom 2009 p. 15). Between 2006 and 2008, a document “Proposed Best Practice Guidelines to Clarify the Meaning of Noncommercial” was developed on the CC wiki under “DiscussionDraftNonCommercial_Guidelines”. This was replaced in 2008 (http://wiki.creativecommons.org/index.php?action=historysubmit&diff=19061&oldid=18887) with a link to a report "Defining Noncommercial" (Creative Commons Corporation & Netpop Research 2009). This report surveys the frequency distributions of various interpretations of the terms "commercial use" and "non-commercial use", mainly by U.S.A. Internet users. The survey confirms that significantly differing interpretations of "non-commercial" exist. The majority of users tend to identify "commercial" with "for profit". However, the study also shows that "uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly [considered as] noncommercial" (ibid., p. 73). Furthermore, the use of works surrounded by or connected with advertisements is largely considered commercial (score 82.6 to 84.6 on a scale of 0 = non-commercial and 100 = commercial). Many people will interpret it as