Creative Commons offers a set of license modules such as “Attribution” or “ShareAlike” that can be recombined to different copyright licenses (see for an overview). One such license module is the “non-commercial”-module. From the very beginning of Creative Commons this module was at the center of most of the license related debates.
First of all, the non-commercial clause was an attempt to enable both sharing and remixing among users and commercialization for creators. Successful examples of hybrid business models such as Jamendo rely on this clause: at Jamendo, musicians receive 50 percent of all revenue generated by commercial use of their works – for example when used in commercials, played as background music in restaurants or in films – while at the same time users can freely download, share and remix those works.
Powerful critics like Wikimedia’s vice-executive director Erik Möller, however, fundamentally challenge the need for a non-commercial module. For him the diversity of incompatible open content licenses is a major barrier for remixing different works. In his 2006 piece “The Case for Free Use: Reasons Not to Use a Creative Commons-NC License” he instead advocates using the copyleft module “ShareAlike.” (It is this module that Wikimedia recently chose for re-licensing its content, see “Wikimania Preview #1“.)
But even adopters and users of the non-commercial clause face the non-trivial problem of defining commercial and non-commercial use. Is it commercial use, for example, if content is used on a webpage of a non-profit organization (for example, a research centre), which allows advertisement on this webpage? What if the content is used by a government or state-run entity? What if the work would be posted on an aggregator website which hosts millions of works (such as YouTube or MySpace), and which makes money from the advertising because of the high volume of traffic it attracts?
These and dozens of similar questions have been asked in study conducted by Netpop Research under the auspices of Creative Commons. The recently released final report “Defining Noncommercial” is very interesting – even though it hardly gives precise answers as to how best define a non-commercial clause.
First, the study is an interesting example of community participation in processes of private regulation. Before, drafting Creative Commons licenses had been reserved to legal professionals, trying to offer legally waterproof licensing options. While there were calls for feedback on the licenses, the open invitation to a broad audience of both creators and users to participate in a survey on one particular license clause is a completely new approach.
Second, looking at some of the study’s key results, however points to the difficulties of such a participative approach to standardization. The press release mentions as an example that “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.” The numbers refer to a scale of 1-100, where 1 is “definitely noncommercial” and 100 is “definitely commercial”. So, asking (potential) standard adopters does not free standardizers from their burden to make decisions on what to include or exclude under a certain standard.
Finally, the results seem to emphasize the benefits of (at least: some degree of) vagueness in defining a standard. Coming up with “the final” or a “definite” description of “non-commercial” might even lead to more conflict and hinder license adoption in fringe areas, while it would not help in (the majority) of clear cases.