[cc-licenses] Version 4:0: second draft suggested change to definition of "noncommercial"

Andrew Rens andrewrens at gmail.com
Mon Apr 9 21:46:43 EDT 2012


On 9 April 2012 07:34, Anthony <osm at inbox.org> wrote:

> On Sun, Apr 8, 2012 at 10:09 AM, David Chart <bydosa at davidchart.com>
> wrote:
> >
> > On 2012/04/08, at 4:31, Heather Morrison wrote:
> >
> >> For the
> >> avoidance of doubt, educational use - teaching and learning - is
> >> Noncommercial, and permitted by this Public License, while selling the
> >> content for profit, or including the content in a package intended for
> >> sale for profit is Commercial, and prohibited by this Public License.
> >
> > This is better, but I don't think this works either.
> >
> > After thinking about what should go in this email, I have come to the
> conclusion that I think
> > it fails because it doesn't remove doubt. I'm completely unclear on what
> you want to allow
> > and what you want to prohibit in an educational context in which the
> teacher is being paid for
> > the course (that is, a commercial educational context).
>
> Yes.  And it becomes even more unclear if that course is online.  But
> there's a bigger problem.  The license is trying to bar people from
> engaging in things that they legally do with almost all other
> copyrighted works.
>
> People sell content for profit, without permission of the author, all
> the time.  It's how book stores are kept in business.
>

There is a distinction between the rights to content and a particular
artefact with content embedded in it.
A book store can sell you a copy of Gibson's Pattern Recognition but it
cannot sell you the right to translate it into Russian and to make it into
a movie.

Copyright law gives various rights for example the right to prohibit others
from making copies. When an author grants a publisher the  right to make
copies the licence either explicitly or implicitly allows the publisher to
sell those copies and after that first sale those copies can be resold
without requiring the permission of the author or the licensee. The licence
has conditions, how much money must be paid to the author for each copy
sold, which jurisdictions the license applies to and how long it is. The
publisher cannot resist these conditions by claiming that the licence
prevents him from selling copies of the book and keeping all the proceeds
even though second hand bookshops can sell the books and keep the proceeds.

When someone licences a work under CC By NC, the Licensor permits the
Licensee to make copies on certain conditions, and one of those conditions
is that the Licensee does not make commercial use of the work. Every person
who uses the work does so in terms of the licence, and is therefore a
Licensee in direct relationship with the Licensor, thus everyone who uses
the work is bound by the licence.

If anyone doesn't want to be bound by the License then he or she cannot
make use of the permissions in the licence such as making a copy.
The right of first sale has never been exhausted for CC By NC works.

Since a Licensor can sell an ARR version of the work in parrallel with
distributing a CC By NC version it seems unlikely that a court would hold
that a Licensor gave up that right in respect of the CC By NC version.

> Thinking about this further, in an educational context, can't I just
require the students to get
> their own copies of the CC-NC material? If I'm at a university, we can
put it on the university
> server.

But that requires making a copy or copies and possibly "communicating to
then public" for those jurisdictions unfortunate enough to have that
exclusive right.

They are clearly allowed to get their own copies and look at them while I
talk about

It is not so clear in many jurisdiction. Many jurisdictions to not have
clear educational exceptions.
> them, after all. But if that's the case, there is no doubt.



This might work for CC-NC-ND.  But for the other NC licenses, what if you
> want to make modifications?  Yes, you could make modifications and then
> distribute the modified material to everyone, student or no.  But even then
> there is doubt - making the modifications is part of your job, and your job
> most likely involves private monetary compensation.
> Do you have to convince the judge that you're teaching primarily for
> love of teaching and not for money?  Do we even want to treat people
> differently depending on their motives?
>

Whether we want to or not treat people differently depending on their
motives it is simply unworkable. How can a Licensor enforce a licence when
the question of whether the licence has been infringed or not is not
subject to normal methods of proof such as whether money actually changed
hands but instead rests on the state of mind of the defendant?



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-- 
Andrew Rens

ex africa semper aliquid novi (http://aliquidnovi.org)
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