Page:Creative Commons licenses and the non-commercial condition - Implications for the re-use of biodiversity information.pdf/8

134 acceptable to use a work licensed as non-commercial in combination with advertisement for cost-recovery, while others will not. A major implication from this study is that the definition given in the CC license is ambiguous, since both sides believe that the CC NC license term is "essentially the same as" or "compatible with" their definition (ibid., p. 11).

In practice, the interpretations range from considering editorial use of images in a for-profit journal as non-commercial (e.g. the interpretation by Wired magazine, see Benton 2011a) to disallowing any use where money is exchanged, regardless whether for cost recovery or not. The question as to how “non-commercial” will be interpreted in court is largely unresolved. Given the large number of potentially contentious licensing cases (e.g., Prodromou 2005; Benton 2011a), a similarly large number of court decisions in relevant jurisdictions will be required. Until this is achieved, any long-term project that considers the use of CC NC licenses will require a careful assessment of legal risks. We present here some insights we have gained in our own risk management analysis, so as to inform the decisions of others.

Formally, the word “commercial” means “referring to commerce”, which in turn may be defined as, for example: “1. the activity embracing all forms of the purchase and sale of goods and services” (Collins 2003). The term “commercial” is thus not directly linked to the concept of making profits. A non-profit enterprise that buys and sells services is a commercial enterprise according to this and many other definitions. It can consequently obtain commercial advantages, e.g., by using images for a public awareness campaign under a free license rather than paying for them on the market. Different interpretations exist: “non-commercial” may be identified with “non-profit” (summarized, e.g., by Wilson-Strydom 2009) or it may be identified with “directly making money” (Kleinman 2008, ignoring commercial advantages that only later lead to monetary profits). However, licensors that intend to apply permissive interpretations of the NC license often feel obliged to clarify their point in a license interpretation statement (e.g., Massachusetts Institute of Technology 2011; Smith 2011; or examples given in Keller and Mossink 2008).

Importantly, the NC license does not refer to the status of potential users at all; focusing solely on the manner in which a work is used. Both for-profit and non-profit organizations may use NC licenses. However, non-profit organizations probably need to rely on factors other than their status to decide whether they may use NC-licensed works.

Monetary compensation and commercial advantages

The CC NC condition distinguishes between (1) a general definition of activities allowed under the license and (2) the special case of “the exchange of the work for other copyrighted works”. In the first case, “non-commercial” is defined in the NC condition by two elements: