Page:Creative Commons licenses and the non-commercial condition - Implications for the re-use of biodiversity information.pdf/9

Rh a) “no private monetary compensation” (i.e., any kind of payment to the licensee by a third party) and

b) “no commercial advantage” to the licensee (i.e., any direct or indirect non-cash-profit, potentially including profits in reputation [e.g. through sponsoring] or savings of expenses [one does not have to buy a copy of the work in the shop...]).

The second case of exchanging copyrighted work does allow commercial advantages, focusing only on monetary compensation. The introduction of a special case stresses that (a) absence of “monetary compensation” is a core principle that is upheld in all cases, and (b) that any form of “commercial advantage” is a binding principle for all other activities than exchanging copyrighted works.

The authors further believe it reasonable that “compensation” includes both full and partial cost recovery.

Primary or secondary intent

All evaluations of intent only concern the user (licensee), not the copyright owner (licensor). The latter may well have commercial motives when releasing material under an NC license (see, e.g., Benton 2011a).

With respect to the licensee, the availability of the license does not depend on the type of legal entity, but on the context and goal of the activity in which the work is reproduced or re-used. The license specifies that it excludes activities that are “primarily intended for or directed toward commercial advantage”. Deciding which “intention” or “direction” is the primary one is the main focus of controversy.

For example, a charitable non-profit organization may sell a calendar with CC-NC-licensed images as a means to raise funds. This is considered to be commercial use even by permissive interpretations of the NC-clause (e.g., Kleinman 2008), despite the fact that the ultimate intention for the funds is a charitable cause. But what about a general brochure, distributed free-of-charge? Increases in the membership base or in public recognition translate into a commercial advantage in the form of higher income through membership fees or voluntary contributions. To some extent, non-profit organizations compete with each other for donations and funds that the members of the public are willing to spend on membership fees. If a non-profit nature conservation organization uses an NC-licensed image in an advertisement brochure and the paid membership increases, it could be argued – similarly to the case of the calendar – that this use of the licensed work was primarily intended and directed toward commercial advantage.

In the case of for-profit companies, a commercial advantage can be assumed to be the primary goal in the majority of cases. Still, for example a for-profit journal, university or hospital may have a charter or mission statement that establishes charitable purposes as its ultimate goal, making the assessment of primary intent a non-trivial one.

The principle of primary intent does help with the question of cost recovery. Rutledge (2008) argues that the NC license allows for all forms of monetary compensation