Pitfalls of non-commercial licenses

In this blog arti­cle, you can find out why non-com­mer­cial licenses are prob­lem­atic from a legal per­spec­tive and what alter­na­tives there are.

Cre­ative Com­mons licenses with the non-com­mer­cial mod­ule (e.g. CC BY NC) are very pop­u­lar in uni­ver­sity teach­ing. The motives of teach­ers who want to pre­vent com­mer­cial use of their works are under­stand­able. They want to pro­tect their mate­ri­als, which are cre­ated in pub­licly funded insti­tu­tions and projects, from third par­ties mak­ing money from them and thereby enrich­ing them­selves. Here, the non-com­mer­cial mod­ule appears to be a way of not com­pletely los­ing con­trol over one’s own work. Teach­ers are often not even aware that they are restrict­ing the reusabil­ity of the mate­ri­als to an insignif­i­cant extent and exclud­ing peo­ple from using them who they may even have tar­geted. This also lim­its the desired reach of their mate­ri­als.

NC licenses pro­hibit com­mer­cial use. Accord­ing to Cre­ative Com­mons, com­mer­cial is any­thing that is pri­mar­ily aimed at a com­mer­cial advan­tage or mon­e­tary remu­ner­a­tion. This is a so-called unde­fined legal term, the inter­pre­ta­tion of which lies with the courts. There is cur­rently no estab­lished case law in Ger­many on the under­stand­ing of “com­mer­cial use” under Cre­ative Com­mons. In prac­tice, this means that in many cases no clear divid­ing line can be drawn between com­mer­cial and non-com­mer­cial use, as the fol­low­ing (so far only) prece­dent case illus­trates:

Deutsch­landra­dio pub­lished a photo from Flickr on its web­site that was licensed under CC BY NC 3.0 (Unported). The pho­tog­ra­pher then sued Deutsch­landra­dio for dam­ages for unau­tho­rized com­mer­cial use of the image. At first instance, the Cologne Regional Court ruled in favor of the pho­tog­ra­pher because the use on the web­site went beyond purely pri­vate use. In the sec­ond instance, the Cologne Higher Regional Court ruled dif­fer­ently. The Higher Regional Court of Cologne (judg­ment of 31.10.2014, ref.: 6 U 60/14) argued that Cre­ative Com­mons licenses are gen­eral terms and con­di­tions within the mean­ing of Sec­tion 305 et seq. of the Ger­man Civil Code (BGB). Since the def­i­n­i­tion of “non-com­mer­cial” is unclear, any doubts or ambi­gu­i­ties in gen­eral terms and con­di­tions pur­suant to Sec­tion 305c BGB are at the expense of the user, in this case the pho­tog­ra­pher. The use on the web­site of a pub­lic broad­caster is there­fore non-com­mer­cial.

Accord­ing to the strict inter­pre­ta­tion of the term “com­mer­cial use”, as applied by the Regional Court of Cologne, any pub­li­ca­tion on the Inter­net is already con­sid­ered com­mer­cial because the use is no longer purely pri­vate. In con­trast, the mod­er­ate view rep­re­sented here is based on who, how, where and for what pur­pose the use is made. Accord­ing to this view, the use is com­mer­cial if, for exam­ple, there is an inten­tion to make a profit, if the use is for adver­tis­ing pur­poses, but also if the place of pub­li­ca­tion is a com­mer­cial plat­form that is financed by adver­tis­ing or data pro­cess­ing (Face­book, YouTube, Insta­gram, What­sapp, etc.). Mate­ri­als posted on social media plat­forms must there­fore be approved for com­mer­cial use.

Due to the unclear legal sit­u­a­tion, many peo­ple are excluded from using NC-licensed mate­ri­als or find them­selves in a legal gray area. This applies to teach­ers who work on a free­lance basis, teach­ers at pri­vate schools and uni­ver­si­ties, asso­ci­a­tions and other non-profit orga­ni­za­tions and ini­tia­tives, and fur­ther edu­ca­tion insti­tu­tions. In case of doubt, these groups of people/institutions will refrain from using NC-licensed mate­r­ial.

NC licenses also do not pro­tect against mis­use. This is because a license notice — whether NC or not — can­not reli­ably pre­vent copy­right infringe­ments. You also need to be aware of the fol­low­ing: Once the infringe­ment has been com­mit­ted, it must be actively pur­sued. This requires a (lawyer’s) warn­ing, which involves time and costs.

Are there equally effec­tive but less restric­tive alter­na­tives to NC licenses? Yes, there are. CC BY SA (Share Alike) is an open license that requires shar­ing under the same license (copy­left effect). This means that users are not free to choose their own license. Adap­ta­tions of the orig­i­nal work may only be licensed with CC BY Share Alike. This means that the mate­ri­als remain free and are not attrac­tive for com­mer­cial projects. As a result, the same effect is achieved as with non-com­mer­cial licenses: Your mate­r­ial is pro­tected from infringe­ments with­out mak­ing sub­se­quent use unnec­es­sar­ily dif­fi­cult. Because the legal sit­u­a­tion is clear here.

Fur­ther infor­ma­tion on NC licenses can be found in the arti­cle by Henry Stein­hau on iRights Info: https://irights.info/artikel/oer-creative-commons-noncommercial/28879.