This post is about my view of the non commercial clause. There has been considerable debate about the clause over the years so I’m trying to pre-empg flaming by including a bunch of caveats and qualifications. I’ve put those at the end so we can get to the issue first.
Critics of the ‘noncommercial’ clause raise two partially overlapping criticisms:
the licences are ‘unfree’
(unfree in the sense that they do not comply with the four freedoms, freedoms 0-3, defined by Richard Stallman) and
the concept of noncommercial is vague.
This post deals with the second of these criticisms. What does ‘noncommercial’ use mean? One explanation which has been widely advanced is that any use ‘for a profit’ amounts to commercial use.
How useful has this been?
To quote Douglas Adams:
“Explanations were advanced, but most of these were simply phrases which restated the problem in different words, along the same principles which had given the world ‘metal fatigue’.”
To combat this uncertainty I suggest that commercial use should be defined as transactional use of the work; that is selling or letting the copyright work or including the work in a paid for advertisement. All other uses should then be regarded as noncommercial and thus permitted.
This is a fairly narrow interpretation but it has the signal virtues of being
(4) applicable to every possible situation, all over the world.
What is wrong with ‘for profit’:
Experience teaches that the ‘for a profit’ formulation doesn’t guide practise in any meaningful way as a consequence Creative Commons Corporation issued guidelines on what amounts to non commercial use, and some years later is engaged in this exercise to (re)define non-commercial use.
One route that this takes is the idea that it is the nature of the user; individuals, corporations, not-for-profit which should determine whether a use is non-commercial. However an individual highly successful rock star incorporating your video into his is in a similar position to a for profit company, similarly a non profit collecting agency collecting revenue for your works and deducting their commissions and charges (without your permission) is using a work commercially. Another concern which muddies the issue even further is whether the ‘noncommercial’ clause could possibly be used to prevent uses by others which one would find objectionable. This confuses two seperate issues, and seems to rise from an American context. All jurisdictions other than the United States which have signed the Berne Convention have moral rights provisions in their copyright laws, and Creative Commons licences specify the relationship of licensed use to these rights. Despite being a signatory to the Berne Convention the United States does not have a moral rights clause in its copyright law, which seems to precipitate attempts to use copyright to address objectionable uses of a work.
Another cause of uncertainty about the meaning of ‘noncommercial’ is the idea of ‘cost recovery’. The idea is that users should be permitted to charge others for copies of an NC work but only to cover thier costs; for example, if someone makes multiple copies of a work and gives them out and charges users for the copying cost. The problem however arises in determining what constitutes ‘costs’: the cost of paper? What about a portion of the costs of an ink cartridge? The maintenance or rental costs of the photocopier, are they legitimate.
Does a portion of the rent, lights and water for the building where the copying was made constitute a cost? How about a portion of the salary of the person who made the copies? Contributions towards the insurance and taxes of the organisation? Many of the latter are fixed costs which are often used in calculating the notional costs of a particular cost centre for doing something, such as making copies. What constitutes a cost rapidly becomes lost in the arcana of accounting.
My view that derives from years of experience using cc licensed works and advising creators and users (although that dichotomy is becoming increasingly meaningless). Many of those who choose to use the licences are concerned about free riding by their competition. I’ve found that the Share Alike clause is a better guard against competition than the NC clause, although it cannot eliminate it entirely.
I haven’t dealt with criticisms of the NC as unfree such as those by Benjamin Mako Hill
and Niva Elkin-Koren, which is not to say that I entirely disagree, or agree with those criticisms but that is the subject of another post. However if we are going to have the NC clause then lets make it clear.