TOWARDS A BETTER UNDERSTANDING OF NC LICENSES

By Virginia Rutledge, Vice President and General Counsel, Creative Commons

 

Education is one of the most important contexts in which Creative Commons licenses can enable greater sharing and reuse of materials. CC's recently launched educational division, ccLearn, is dedicated to realising the full potential of the Internet to support open learning and open educational resources (OERs). Helping to make CC licenses work better for educational purposes is a key part of ccLearn's mission.

 

As CC licenses have been adopted around the globe, it has become apparent that there is great interest in the availability of the "non-commercial" or "NC" license term. At the same time, there is great confusion regarding the application of this term to some uses. As part of our ongoing efforts to provide free (including lawyer-free) licenses that clearly communicate what licensors intend, CC is undertaking a major study of the meaning of "non-commercial". Our aim is to collect empirical research on how different communities understand and use this term. This information and related analysis will be released to the public early in 2009.

 

The results of the study will certainly guide future work on CC's license suite. In the shorter term, we will continue working to clarify the NC term through our discussion groups and via the materials available on our website.

 

Answering the question "Is it noncommercial?" can be difficult, both because the law is not completely settled, and because there are differences in its interpretation, especially across jurisdictions. For example, a recurrent question in the educational context, and one of the most debated, is whether the NC restriction allows a user to charge for copying and distributing the licensed material and for associated overhead expenses including salaries, irrespective of the user's business status (non-profit, for-profit, government). Some believe that the for-profit status of the business itself should preclude this; others disagree.

 

CC considers intent to be the primary test of whether a use is noncommercial. If the intent of a particular use is to generate profit, that use is commercial. Under this reasoning, cost recovery per se is not a commercial use.

 

A "status" rule would resolve many of the current questions, simply by providing certainty. But such a rule would also foreclose some important uses. The best solution is not obvious at the moment, at least not to CC. What is obvious is that a solution is needed. We invite the spectrum of the educational communities to weigh in. Meanwhile, of course, another option is always to seriously consider whether the NC term is really necessary.

 

 

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