5.5 Commercial Use Questions

There are concerns from authors and learned societies about CC BY and its ‘liberal’ terms of reuse. In addition a number of learned Societies have since recommended members to publish under a CC BY-NC licence.

The definition of ‘non-commercial’ in Creative Commons is open to interpretation. However, it is also open to misunderstanding and misinterpretation. In addition the intended effect of use of the NC licence can often by achieved by using other means, but the use can have unwanted consequences that have not been identified by the author.

The licence formerly uses the words “commercial advantages”, however, this not defined by Creative Commons or in the law of most countries. Licensees and licensors are uncertain as to what constitutes commercial reuse – for example, if someone posted a copy of a book on an educational website which generates even a small amount of revenue from advertising, it could be considered a commercial reuse. There is some debate and misunderstanding about whether non-commercial means for not-for-profit, if this is the case then it would prohibit organisations that make a profit from redistributing the work. For example, if text and or pictures with a CC BY-NC licence were used in a free publication by a charity, increased membership or public interest leading to voluntary contributions could be conceived as gaining “commercial advantage” and therefore in breach of the licence.

Many learned societies are arguing for a non-commercial element, but any use of share alike or no derivative works create restrictions on the use of educational and research material. The no derivatives option prevents translations, abridgments, summaries and other adaptations of a work, this makes building on research and collaboration very difficult in an academic setting, which could be seen as restricted the scholarly process, not protecting it.

surflogo

As a result, SURF (the Dutch higher education and research partnership for network services and information and communication technology) has “emphatically” said no to the CC BY-ND, CC BY-ND-SA and CC BY-NC-ND-SA licences and considers the use of the CC BY-NC and CC BY-NC-SA licences as being ‘less desirable.’ The UK Government’s support for open access publishing regards commercial use as meaning more impact for a work.

Journal article authors do not get paid, scholarly monograph authors rarely receive an honorarium or royalty payment, so the profit is always made by the publisher or other party. Restricting commercial use does not protect the author from loss of revenue.

Many of these arguments may actually stem from ignorance about copyright, rather than Creative Commons, meaning that users (and authors) are often unaware of permitted uses under copyright law and the fact that these permitted uses are therefore not covered in Creative Commons licences and will remain unaffected by whatever Creative Commons licence is used. For example, activities such as fair dealing, in the United States, are not affected by a Creative Commons licence as they are permitted by copyright legislation.

Finally, there is an argument to say that if a library as publisher were to release a work under a CC BY licence, which enabled commercial re-use at a later stage, then why would anyone go to another site that had re-published the book and was selling it at a cost? After all, the original work would have to be referenced anyway? This has been described as a “tax for being inept at searching the Internet.”

Wilbanks, John (2013). Licence restrictions: a fool’s errand, Nature, Vol.495, 28 March 2013, 440-441 doi: http://dx.doi.org/10.1038/495440a

By permitting all commercial reuse removes the problems and uncertainties described above, and allows people to reuse the work without worrying about whether they might accidentally make money from it!

5.1 Creative Commons licences
5.2 Institutional polices and copyright
5.3 Funder mandates
5.4 Third Party rights and author rights
5.5 Commercial Use Questions
5.6 Benefits of publishing with a Creative Commons licence

Creative Commons License
This work is licensed under a Creative Commons Attribution 3.0 Unported License.