Almost one year ago we launched a study of how people understand “noncommercial use.” The study, generously supported by The Andrew W. Mellon Foundation, included in-depth interviews and two waves of in-person and online focus groups and online questionnaires. The last included a random sample of U.S. (geographic restriction mandated by resource constraints) internet users and in an extended form, open questionnaires promoted via this blog (called “CC Friends & Family” in the report).
Today, we’re publishing the Defining Noncommercial study report and raw data, released under a CC Attribution license and CC0 public domain waiver respectively — yes, this report on “noncommercial” may unambiguously be used for commercial purposes. Also see today’s press release.
The study was conducted by Netpop Research under advisement from academics and a working group consisting of several CC jurisdiction project members as well as CC staff and board members.
Study findings
Creative Commons noncommercial licenses include a definition of commercial use, which precludes use of rights granted for commercial purposes:
… in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.
The majority of respondents (87% of creators, 85% of users) replied that the definition was “essentially the same as” (43% of creators, 42% of users) or “different from but still compatible with” (44% of creators, 43% of users) theirs. Only 7% of creators and 11% of users replied that the term was “different from and incompatible with” their definition; 6% or creators and 4% of users replied “don’t know/not sure.” 74% and 77% of creators and users respectively think others share their definition and only 13% of creators and 11% of users wanted to change their definition after completing the questionnaire.
On a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial” creators and users (84.6 and 82.6, respectively) both rate uses in connection with online advertising generally as “commercial.” However, more specific use cases revealed that many interpretations are fact-specific. For example, creators and users gave the specific use case “not-for-profit organization uses work on its site, organization makes enough money from ads to cover hosting costs” ratings of 59.2 and 71.7, respectively.
On the same scale, creators and users (89.4 and 91.7, respectively) both rate uses in which money is made as being commercial, yet again those ratings are lower in use cases specifying cost recovery or use by not-for-profits. Finally, both groups rate “personal or private” use as noncommercial, though creators did so less strongly than users (24.3 and 16.0, respectively, on the same scale).
In open access polls, CC’s global network of “friends and family” rate some uses differently from the U.S. online population—although direct empirical comparisons may not be drawn from these data. For example, creators and users in these polls rate uses by not-for-profit organizations with advertisements as a means of cost recovery at 35.7 and 40.3, respectively — somewhat more noncommercial. They also rate “personal or private” use as strongly noncommercial—8.2 and 7.8, respectively — again on a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial.”
See much more in the study report and draw your own conclusions from the data.
The below is drawn from the Section 4 of the report, titled “Next” — we urge you to read that section for more, including ideas for future research.
Import for Creative Commons noncommercial licenses
In the next years, possibly as soon as 2010, we expect to formally kick off a multi-year, international process for producing the next version (4.0) of the six main Creative Commons licenses.
This process will include examination of whether the NC term should be usefully modified as a part of that effort, or if the better approach might be to adopt a “best practices” approach of articulating the commercial/noncommercial distinction for certain creator or user communities apart from the licenses themselves. Whichever the result, this study has highlighted that in order to meet the expectations of licensors using CC NC licenses it will be important to avoid any modification of the term, however manifested, that makes a use widely agreed to be commercial — or only agreed to be noncommercial with low consensus — explicitly noncommercial. There is an analogue in our statement of intent for CC Attribution-ShareAlike, which provides assurances that we will not break the expectations of licensors whose intent is to release works under copyleft terms.
While the costs of license proliferation are already widely appreciated and resisted by many, the study weighs against any lingering temptation to offer multiple flavors of NC licenses due to strong agreement on the commerciality of certain use cases that, in the past, may have been considered by some to be good candidates for splitting off into specialized versions of the NC term, such as online advertising. For even in those cases where strong agreement may appear to exist upon initial inquiry, such as with online advertising, nuances and sometimes strong differences of opinion are immediately revealed when more specific use cases are tested and facts presented — such as those involving cost recovery or support of nonprofit organizations.
The study results also advise against any concerted effort by CC to attempt appeasing all license users, all the time — study participants are divided over the value of more or fewer specific “use cases” to delineate the commercial/noncommercial divide, some see the lack of specific uses as a strength and others as a weakness, and many others still disagree with the notion that a single definition of noncommercial use could be workable. Thus is the challenge, and opportunity, of public license stewards.
Aside from decisions about the NC licenses themselves, we will be looking back to the study as we update explanations of noncommercial licensing on our license deeds, license chooser, and other materials. Your ideas and feedback are most welcome (see below).
Creative Commons recommendations on using noncommercial licenses
Overall, our NC licenses appear to be working rather well — they are our most popular licenses and we are not aware of a large number of disputes between licensors and licensees over the meaning of the term. The study hints at some of the potential reasons for this state of affairs, including that users are in some cases more conservative in their interpretation of what is noncommercial than are creators and that in some cases creators who earn more money from their work (i.e., have more reason to dispute questionable uses) are more liberal in their interpretation of what is noncommercial than are those who earn less.
While it would take a more focused and exhaustive study to conclude that these seemingly fortunate attitudinal differences are correct, strong, and global, they do hint at rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses — licensors should expect some uses of their works that would not meet the most stringently conservative definition of noncommercial, and licensees who are uncertain of whether their use is noncommercial should find a work to use that does unambiguously allow commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain) or ask the licensor for specific permission (interestingly about half of respondents to the “CC Friends & Family” questionnaire who had released works under a NC license indicated that they had been contacted for specific permission). Note that this rule of thumb has an analogue in network protocol design and implementation known as the robustness principle or Postel’s Law: “Be conservative in what you do; be liberal in what you accept from others.”
One way to think about Creative Commons generally is of providing tools to prevent the failed sharing that results from relying on copyrights’ defaulting to “all rights reserved” — uses that you would allow but that will not occur because you haven’t authorized them (maybe haven’t even thought of them) and the costs of finding you and getting authorization are too high for the intended use (or maybe you’re dead and even scholarly use of your works is suppressed by your estate). This sounds dry, but think about the anti-network effects of failed sharing at the level of a society, and the costs are large indeed. Some have realized that too much use of NC licensing suppresses uses that a licensor who wants to share may wish to allow, at a cost to NC licensors and licensees and a greater cost to communities and the broader free culture movement — failed sharing, though at a much smaller scale than the failed sharing engendered by default copyright. The Definition of Free Cultural Works website includes an article summarizing reasons to avoid NC licenses (and use a free license such as CC BY or CC BY-SA). If you’re concerned about the costs of NC licensing to yourself, the free culture movement, or society at large, review the arguments and consider “dropping -NC” from your license.
The potential negative impact and corresponding lack of use of noncommercial licensing differs across fields. For example, noncommercial licenses do not exist at all in the free and open source software world (note that CC recommends using a free and open source software license for software). Science and education are two large fields in which we believe that liberal licensing or the public domain are most appropriate. Unsurprisingly Wikipedia, with strong relationships with the free software, open access (scientific publishing), and open education movements, mandates liberal licensing, and many other massively collaborative projects are following.
However, compelling use cases for NC licensing remain — most obviously when an existing significant revenue stream from a work would be compromised by release under liberal terms. Giving your audience legal certainty that they won’t be prosecuted for doing what comes naturally from using digital networks — copying and remixing for no commercial gain or monetary exchange — while exploring the sharing economy and still protecting existing business — these are great reasons to start or continue releasing works under a NC license. It is little surprise that major music and book publishers’ use of CC licensing thus far has almost exclusively been of the NC variety.
How to participate in the discussion
There are a variety of ways you can participate in discussion of this study, the future of CC NC licenses and accompanying material, and future research on this and other topics related to voluntary sharing:
- Leave a comment on this blog post.
- Add to the study’s Talk page on the wiki.
- Discuss on the CC Forum or cc-community mailing list.
- Subscribe to the very low volume cc-licenses mailing list to be alerted when the 4.0 process commences.
- Join the commons-research list to connect with researchers studying free culture topics.
- Send a comment to noncommercial@creativecommons.org
Thanks to everyone who has contributed in any way to this work!
I still have a problem understanding where CC falls under the YouTube/Vimeo case though.
For example, can a CC-BY-NC song be used with a CC-BY-NC video by another artist and uploaded on a site like YouTube and Vimeo? Even if the video artist doesn’t make any money out of his video, Youtube/Vimeo might make money because of their ads (although, according to news reports so far, the ad money barely cover bandwidth needs since not even Youtube is actually financially successful).
So what do we do with that case? Is uploading to Youtube/Vimeo considered commercial usage when the video that uses a random CC-BY-NC track is non-commercial?
See, I took part in your survey, added my 2 cents about the topic, but I still don’t have an answer to this. Reading the above article made me more confused too.
Good to hear that the NC report has finally been published. Personally, I find the ambiguity of the NC terms a bit of a hassle, so I prefer to use CC-BY-SA for my creative works. I’m come to the conclusion that I am ok with others potentially making money off of my CC-licensed works as long as the downstream derivative works remain freely available under copyleft terms.
Let me preface by saying I am not a lawyer. My impression, however, is that by having an ambiguous definition of “non-commercial” that it will take the teeth out of any potential legal action. I would therefore prefer a strong, strict definition to one that is more open to interpretation.
If, for instance, NC permits recuperation of costs (i.e. “you just pay for the CD media”), a quandary exists similar to the example of YouTube earlier in the discussion. Let’s say I order a shirt from CafePress with a NC cartoon printed on it then sell it “at cost”, CafePress makes a profit. But if I run a T-shirt shop and print the same cartoon and sell it “at cost” for the same as what I’d charge someone else for me to make it, I turn a profit. I can see this nuance as being a nightmare to discern (i.e. is it okay if the T-shirt shop you bought it from is your second cousin’s wife? or what if your brother works for CafePress?).
Because the CC license is non-exclusive, one can always license individually or separately for these kinds of “small run” cases. But if the NC license has no teeth in court, it is essentially worthless.
This is a very important issue. Can’t wait to dive into the findings.
@Eugenia
From my point of view it is the remixer that is the user of the work that they host the result on a site that happens to have ads as the price for hosting isn’t important.
Now I really don’t like News International, I mean I really do not like News International, and one of the reasons I use NC is so that companies like that don’t get to use my stuff, but I’m not going to penalize some kid for using an NC work on their MySpace page.
Eugenia,
The above has an answer: do things you’re not confused about. For example, post the video to a site without ads, say archive.org, or find content to incorporate in your video under a non-NC license, or ask the licensor.
are commercial purposes always profit-making?
perhaps an additional layer would be about for non-profit purposes?
I agree with lwymindy, there should be an additional layer for non-profit use.
But, in saying that, on my netlabel i run ads on it and my contributers get a share of the monies that coming in from them (even though there is little or none coming in).
I feel that its fair to give my contributers a share even if my hosting costs are never covered.
So you guys study the issue for over an year and come up with a huge report that actually FAILS to define with any degree what clarity what non-commercial is? After reading the report carefully, I have to say it is a massive disappointment.
Dalila,
http://en.wikipedia.org/wiki/Accuracy_and_precision
Incredibly useful report, thank you for making it happen!
The real meat of it, for me, was in the charts at pages 59 to 65, where the ranges of opinion are expressed visually.
What I took away from that chart on page 65 is there are only two uses of NC licensed material where a sizable number of people in the surveyed group thought it more than 50% permissible to use NC content, namely:
1) personal use
2) a charity/non-for-profit organization
and even for those two, “a charity” fell more on the “definitely commercial use” side than not.
page 62 adds as also OK for NC:
* course materials for a non-tuition school.
That’s the complete list. All other uses of NC licensed content fell over the over-50% definitely-commercial mark.
To summarize, the current not-very-debatable meaning of the non-commercial clause in CC licenses is:
1) ok for personal use
2) ok for coursework at a non-tuition university
3) probably ok for a charity/non-commercial organization
What I find interesting is that in discussions with lawyers about the NC clause, this was mostly the same opinion, with the exception that the chart on page 62 asserts that Government/state use would be likely commercial, whereas lawyers I spoke to thought that was an ironclad example of non-commercial.
Thanks again!
-John from Magnatune
Thanks John, that’s a great distillation.
John,
While those circumstances are clear and nicely laid out from your perspective the questions of what is NC will still exist for your customers perspective.
I am a filmmaker considering making a NC feature that uses NC music. I could do that personally, but seeing as I will need to raise funds and be accountable for any problems I will more likely create a not-for-profit company. I complete my film and decide to release it. Whatever distribution model I choose except possibly distribution through archive.org the distributor will want to take a profit on. Whether that’s advertising on youtube or ticket prices at the theatre or markup from cutting and selling DVD’s.
So they’re making a commercial profit (and I’m happy for them to do so as it means my work gets shown raises more investment for my next film) I also still control those sources to be copyleft (people can take camcorders into the theatre or copy the DVD or download the youtube Video) but then you as the NC music producer are having your license terms breached. Who are you going to come after, me for releasing the work into the wild (knowing that commercialisation of the work was a possibility) or all these countless corporations and individuals who are carrying out the violations?
If it’s me then I’m as well going for pofit and selling the film through commercial channels, and only making the film NC 15 years later once all the sales contracts have expired. That’s not the product I want to make, but it’ll be the only way to cover licensing costs of all the NC music/soundeffects/art/etc that I want to populate my film with.
The definition of noncommercial is still very subjective – every site ‘converts’ their traffic one way or another, judging by travel levels, amount of advertising, legal entity/corporate status might be more definitive?
As a developer I use lot of open sources and CC-NC codes. I work for a for-profit/commercial company. Software I wrote are mainly use internally by our employees. We never sell our software. Public has no access to use it. Am I violating the CC-NC license?
man copyright is getting out of hand.
quoting Joe Developer:
We never sell our software. Public has no access to use it. Am I violating the CC-NC license?
This is the point really conflictive that no one seems able to clarify. I agree with Dalila that after this poll I was looking for something clarifying things and not only put at the showroom the hassle that all we know.
Particular examples covering the diverse range of cases and pronouncing about what would be reasonable noncommercial usage or not would be useful. The expression of the doubt only is still constructive, but completely useless from what I was looking for.
Thanks anyway for your work!
Raimon
Jason Olhefsky example add another point to the noncommercial use. If NC permit recuperation cost wouldn’t it be okay if we as a website owner when using CC materials, try to recuperate our own hosting etc cost through ads displayed on our personal site?
I have a blog with Adsense ads on it. It currently makes way less than server and domain costs.
Does that blog constitute commercial use?
Because it is not “primarily intended for or directed toward commercial advantage or private monetary compensation” but rather for fun.
I’ve wondered for a long time what became of that study, and it seems I am disappointed. I got what I wanted to know from this article. I really wanted to see a new license that would be more open than NC.
My definition of commercial in short is when something is being sold, directly requiring money from the user for what they want. I don’t mind people using my works if they get ad revenue but ask no money of their users. But this NC license makes that a lot of work for me (relatively). I want exceptions everywhere among my works, but specifying those exceptions is a lot more work than CC is intended for.
I don’t really understand why it was completely dropped, the idea of introducing a new license. I pretty much expected that logic would favor not changing NC itself, but I don’t see enough reasoning presented to avoid coming up with some new NS [no-sell] license.
I’m gonna be honest, i dont care if anyone puts a video up that makes use of CC BY-NC or BY-NC-SA music/video that i have created up onto YouTube aslong as they arent YouTube partners.
Youtube partners are different as they are placing the adverts directly on the video, Thus making money from it. I dont care about the ads on the web page as they are there to cover the cost of hosting Millions (possible billions) of video’s that get uploaded to it.
So, why would i care about smaller sites doing the same thing which earn little to NO money from the ads.
Aslong as the attribution is there to advertise my site and give posible SEO page rank, then go right ahead and use my own works for that purpose.
I have a question. The report just confused me, rather frustrated me, as I wanted a “definition” not all the details of the study.
What I want to know is…
If I build a tutorial video for a site, that is a paid membership site, that people use to build and sell monetized websites, but my video uses say one of NIN’s CC BY NC SA liscened tracks as background music (so my tutorial doesn’t bore people to tears)… but I don’t make money from the video, it’s not on any site with ads, but I include it in the owner of the sites “tutorial” section (because the internal video has sensitive intellectual property that he doesn’t want others to see if they are not a member), and he doesn’t make money from the video, it’s there to help people understand how the system works- nothing more). I’d have to let him upload it to the site as I have no way to protect it from the public eyes)… Is this breaking the liscense agreement? even if My name, not the owner, is advertized as the creator of the video and I atribute the author in the video.
Can anyone tell me how this works and if this is outside the line? Again, no profit is made from the video but I’m wondering if the fact that you can’t download and see or change and redistribute etc.. the video, does this violate the license?
Thank you anyone for your reply.
Jerrico
I am about to publish a book of short stories, reworkings of myths and traditional tales. I would be perfectly happy for anyone to use one of the stories, even commercially. In fact I would welcome it as I would like the stories to have wide circulation.
But if I publish under a CC licence that permits commercial use, doesn’t that mean that someone could publish the whole book for themselves and so take any profit? I would not be happy with that at all.
Might the solution be to publish the book under the usual copyright restrictions but apply a CC licence (attribution share-alike) for each individual story?
I would welcome advice.
Frankly, I never really understood the rules of ‘non-commercial’ CC. Is it really as strict as I think it is? E.g. if you want to use a photo that’s under noncommercial license, you can’t put it on any website that has any sort of ads on it.
Speaking generally, does the NC license mean, say, a radio station that has ads can’t play songs with the NC license? What if there are banner ads in the site?