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An Issue for Open Education: Interpreting the Non-Commercial Clause in Creative Commons Licensing

Charles Lowe, Grand Valley State University

Introduction

For those of us interested in creating and sharing open education resources such as course syllabi, assignments, or instructional readings, an important consideration is how to license the content for use by students and other teachers. Copyright, even with fair use determinations (which, as most teachers are aware, can be difficult to know when and how to apply), grants few rights to others for using a work. For most educators, the “flexible copyright” of Creative Commons (CC) licenses is undoubtedly the easiest way to extend copyright privileges. A CC license can allow the user to copy, to redistribute, and—if the content creator desires—to transform or modify the work. Interested in licensing something you have created? Visit the CC “License Your Work” web page, and it will ask you a series of questions about how you might like others to be able to use your work. CC then recommends one of a set of licenses they have created that gives those permissions.  Because a legal license can be difficult to read and understand, CC also provides a human-readable deed to attach with the work or provide a link to which clearly defines the usage rights.

Or, at least, that's the principle behind the deed. One of the most popular restrictions included with CC licenses is a Non-Commercial (NC) clause.  The deed vaguely defines non-commerical as, “You may not use this work for commercial purposes” (“Attribution-Noncommercial 3.0 Unported”). Does this mean that the character of the use cannot be commercial (e.g., selling the work for profit)? Or is it that a company or other commercial entity cannot use the work at all? Can a non-commercial organization, such as college or university, profit from the work? What about recovering costs of producing a copy of a work to redistribute it even when profit will not be made? While the legal code in the license itself is a little more specific, it does not assist much in defining what is a non-commercial use:

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. (“Attribution-Noncommercial 3.0 Unported”)

Regardless of whether or not content users try to read the legal code (we can imagine that the average Internet user is unlikely to do so) or simply follow the deed, non-commercial can obviously be interpreted in many ways. In order to gain insight into what creators of NC licensed works and users of those works believe constitutes non-commercial use, CC commissioned an in-depth research study. They then reported their findings in September of 2009 in “Defining 'Noncommercial': A Study of How the Online Population Understands 'Noncommercial Use.'” Because many educators may want to choose the NC restriction when licensing content, the following will briefly provide some of the details of CC's study and discuss how those findings might influence how and when educators choose to use the CC NC clause.

Highlights of the Study

In 2008, CC hired “Netpop Research, LLC, a market research firm” to conduct the study (20) using funding provided by the Andrew W. Mellon Foundation (8). CC had “two main goals” for this project:

  1. “to undertake an empirical study that would survey variations in the online U.S. general population’s understanding of the terms 'commercial use' and 'noncommercial use,' when used in the context of the wide variety of copyrighted works and content made available on the Internet; and
  2. to provide information and analysis that would be useful to Creative Commons and to others in understanding the points of connection and potential disconnection between creators and users of works licensed under Creative Commons 'NC' or other public copyright licenses prohibiting commercial use” (18).

To achieve these goals, Netpop conducted an empirical study of a targeted sample of ninety content creators and content users in the U.S. using focus groups and surveys, and more informally, collected additional information through a self-selected public Internet poll of 3,337 creators and 437 users in the CC global community  (23-27).

In the empirical study, the qualitative data collected in the focus groups was used to construct the surveys given to the target sample group and the CC global community. To do so, the focus groups created a list of factors by which they would evaluate whether or not a use was non-commercial. Focus groups of content creators came up with the following list, which was then discussed and approved in the content user focus groups without amendment:

  • “Perceived economic value of the content
  • The status of the user as an individual, an amateur or professional, a for profit or not-for-profit organization, etc.
  • Whether the use makes money (and if so, whether revenues are profit or recovery of costs associated with use)
  • Whether the use generates promotional value for the creator or the user
  • Whether the use is personal or private
  • Whether the use is for a charitable purpose or other social or public good
  • Whether the use is supported by advertising or not
  • Whether the content is used in part or in whole
  • Whether the use has an impact on the market or is by a competitor” (31).

If one were to use this list of factors, determining whether a use is non-commercial would appear to be no easier than applying the four-factor fair use test for determining copyright infringement. To better understand how content creators and users would apply these factors of non-commercial use in specific “use scenarios,” participants in both the target sample group and the CC online community completed a survey in which they answered questions to provide profile data, evaluated “possible gatekeeping factor” statements, and completed anchor point exercises (52-55). While the surveys given to all participants were similar, some questions were changed to explore the different experiences of creators and users, as well as the depth of understanding of CC itself and the NC license text by the CC online community (27). 

Surprisingly, the findings indicate many similarities between how creators and users understand noncommercial use. For example,

creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. (11)

When money is not a factor, both groups had more trouble determining whether or not the use was noncommercial. Where the groups did differ is their particular leaning toward commercial or non-commercial. Content creators were more likely to view a use as non-commercial than users were. Except in the case of “uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial” (11).

Implications for Using the Non-Commercial Clause

While intellectual property scholars will certainly find much more in the report to review—including a few specific results related to education —what should the educator-as-content-creator/user take away from this study for her understanding of when and how to use the NC clause in CC licenses? CC suggests that, because the findings are inconclusive due to the sample sets, the best use of the results is as a “rule of thumb” (79). When licensing a text with the NC clause, be prepared that not all users will follow a strict “conservative definition of noncommercial,” and when it's not clear if using an NC licensed text will be used in a non-commercial way, “find a work to use that unambiguously allows commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain), or ask the licensor for specific permission” (79).

That is reasonable advice, but something that probably could have been surmised prior to the study. And it does not address the potential consequences of the ambiguity of the term non-commercial. One of the most vocal critics of the NC clause is David Wiley, a leading expert on licensing educational content . In his fictional history, “2005-2012: The Open CourseWars,”   Wiley describes the major discrepancy in the license: is the use constraint defined by the character of the use or the user (248-249)? In Wiley's narrative, commercial publishers play upon this issue by anthologizing NC licensed educational content, and when sued in court, they counter sue and have the NC clause invalidated (249-250). As Wiley explains, CC licenses are written such that a ruling eliminating one clause would not invalidate the whole license; nevertheless, every NC licensed work would be instantaneously available for all types of commercial use (250).

Now, Wiley could potentially have a bias against the NC clause because of his executive position with Flat World Knowledge, a commercial organization specializing in the production of open textbooks (“Our Team”). But let's assume his prediction is possible. How should that influence our choices about selecting CC licenses? Wiley recommends that educators could best protect their content by using the Share-Alike (SA) clause (251). The SA CC licenses are a type of copyleft license. Copyleft allows derivative works, yet also require anyone that modifies and/or redistributes the work to include the same license. This is similar to the GNU General Public License used by many open source software projects, including the operating system Linux. With a copyleft license, the potential commercial exploitation of intellectual property is much less; anyone who legally obtains the software or text can modify or it or give it away themselves. Profit has to be made, then, off the services sold in association with the item, not the item itself, because the work can be given away for free by the first person that purchases it. Even with or without the inclusion of an NC clause, many open education advocates recommend SA over other CC licenses which forbid derivative works because re-purposing the content can be helpful to education. Selecting this license would, for instance, allow the content to be redesigned with different formatting or modes and/or translated into different languages.

Finally, one other consideration for NC license adoption could be for the content creator to provide written clarification. MIT's OpenCourseWare project includes an addendum to the CC license on their “Privacy and Terms of Use” web page. The document specifies that “determination . . . is based on the use, not the user;” it forbids users to “directly sell or profit;” and it allows for the “recover[y] of reasonable reproduction costs.” Perhaps this is a good strategy for large projects sponsored by institutions and organizations. But most individual content creators—including educators—choose Creative Commons licenses because the licenses are easy to implement, and because they don't know how to write up clear—and legal—conditions of use.

One Final Consideration

Given the potential disparity between how a content creator might want non-commercial to be defined, and then how the user defines it and uses the work, it is worth considering CC's advice in their report that the creator evaluate “the potential societal costs of a decision to restrict commercial use” (79). The use of the NC clause may discourage people from using the work in a way that the creator had intended it to be used, resulting in what CC describes as “failed sharing” (79). And it is also worth noting that there are no open source software licenses with a non-commercial clause. One can argue that open source software projects are successful because they are maximally “open,” and an NC clause with an open source license would reduce that. Linux certainly owes much of its success to commercial support from companies such as IBM, RedHat, and Novell, to name a few. Perhaps open education might enjoy similar success when the textbook publishers and other media providers are no longer our competitors, but our fellow collaborators.

Works Cited

“Attribution-Noncommercial 3.0 Unported.” Creative Commons. Web. 1 March 2009.

Creative Commons. “Defining 'Noncommercial': A Study of How the Online Population Understands 'Noncommercial Use.'” Creative  Commons Wiki, 2008. Web. 1 March 2009.

“License Your Work.” Creative Commons. Web. 1 March 2009.

“Our Team.” Flat World Knowledge. Web. 2 March 2009.

“Privacy and Terms of Use.” MIT OpenCourseWare. Web. 1 March 2009.

Wiley, David. “2005-2012: The Open CourseWars.” Opening Up Education: The Collective Advancement of Education through Open Technology, Open Content, and Open Knowledge. Eds. Toru Iiyoshi and M. S. Vijay Kumar. Cambridge: MIT Press, 2008. 245-259. Print.

*****

1 The various licenses are described at http://creativecommons.org/about/licenses/.

2 CC explains that “approximately two-thirds of all Creative Commons licenses associated with works available on the Internet include the NC term” (17).

3 The report refers to the online community group as Creative Commons Friends and Family (CCFF) (27).

4 For example, distribution of “free educational materials” by a “for-profit company” is seen as more commercial than a “public, not-for-profit school use for fund raising” (Appendix 5.6-61).

5 Wiley created an Open Content license in 1998 prior to the existence of Creative Commons (the license has since been “retired” by Wiley in favor of using Creative Commons licensing).  The license can be viewed at http://opencontent.org/opl.shtml.

6 Wiley's chapter is freely available online at http://mitpress.mit.edu/books/chapters/0262033712chap16.pdf.

 

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