Education for a Digital World Advice, Guidelines and Effective Practice from Around Globe, 2008a

16 – ‘Open Licences’ of Copyright for Authors, Educators and Librarians
CC licence generator
The text of the CC licences and their different language
versions is on the CC website. The CC website does not,
however, expect users to study every licence before
choosing one. Instead, there is a licence generator that
suggests the appropriate CC licence based on the answers
to following three questions:
• Will an author allow commercial use of the work?
• Will an author allow users to modify the work? (Included
under this question is the possibility of allowing
users to modify the work if they share alike.)
• In which jurisdiction does an author want to license
the work?
The questions are a convenient starting point for commenting
on the six CC licences.
Jurisdiction
It is useful to start with the third question on the jurisdiction
of the licence. If a work will be used mainly in
one country an author should select that country. If an
author is publishing a work internationally or if there is
no licence for the country in which the author is publishing,
the author should answer ‘unported’. The unported
version of a licence is a generic, international
licence. The following discussion of the other questions
will refer to the unported versions of the licences.
Restriction on commercial use
The first question the licence generator asks is: “Allow
commercial use of your work?” If the copyright holder
does not want to allow commercial use of the work the
licence generator suggests a non-commercial (NC) licence.
What this means is that a copyright holder who
finds individuals or institutions making commercial use
of the work can take legal steps to stop them doing this.
But what does non-commercial mean? Section 4b of the
unported CC Attribution-NonCommercial 3.0 licence says:
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. The
exchange of the Work for other copyrighted works
by means of digital file-sharing or otherwise shall
not be considered to be intended for or directed
toward commercial advantage or private monetary
compensation, provided there is no payment of
any monetary compensation in connection with
the exchange of copyrighted works.
One view of what this means, often forcefully expressed
in workshops and discussion groups, is that noncommercial
means that no money should change hands.
This is not, however, the usual meaning of noncommercial.
It is not a commercial transaction, for example,
to refund someone for buying me a loaf of bread
or even to pay that person’s travelling expenses. It only
becomes commercial if that person wants to make a
profit out of providing this service. It follows that someone
who distributes an NC work should be able to
charge to recover expenses incurred in distributing the
work. These expenses, typically, would include copy
charges, salaries and overhead expenses. The only restriction
is that anyone doing this does not intend to
make a profit out of distributing the work. This is the
view of the Draft Guidelines that CC published to try to
clarify the meaning of non-commercial. (“Proposed best
practice guidelines to clarify the meaning of ‘noncommercial’
in the Creative Commons licenses” available at
http://wiki.creativecommons.org/DiscussionDraftNon
Commercial_Guidelines)
There is still some uncertainty, however, about what
“primarily intended for or directed toward commercial
advantage or private monetary compensation” in section
4b means. It could be argued that even if a project does
make a profit, the use is still non-commercial if the project
was not primarily intended to make a profit. According
to this view, an organization that is run for
profit may use NC material and may recover its expenses
for distributing NC material provided the project using
the NC licensed material does not aim at making a
profit.
This raises questions such as whether private schools
run for profit or public broadcasters that accept advertising
revenue may use NC-licensed material for teaching
or informing their viewers? (See Mikael Pawlo,
“What is the meaning of non-commercial” in Danièle
Boucier & Mélanie Dulong de Rosnay, International
Commons at the Digital Age: La création en partage
2004 Romillat, Paris 69 at 78–82. Available at
http://fr.creativecommons.org/iCommonsAtTheDigitalAg
e.pdf) Another question is whether a business whose
profits support a non profit body such as a university
may use NC material. The Draft Guidelines appear to
prohibit using NC material in these ways. Section C(2)
of the Draft Guidelines, for example, says that it is not
non-commercial if money changes hands to, for example,
a for-profit copy shop. Section A(1)(b) insists that
an educational institution or library using NC material
must be nonprofit. And section B appears to classify as
commercial any use of NC material in connection with
advertising.
Education for a Digital World 261