[cc-licenses] Will CC 4.0 Make NC Clause Problems Worse?

jonathon jonathon.blake at gmail.com
Sun May 6 21:33:39 EDT 2012


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On 03/05/12 00:45, David Wiley wrote:
> licenses are, according to the license itself, prohibited and meaningless in the context of the license.

The major, if not only purpose of those add-ons that organizations and
people provide, is to provide _their_ understanding of what the terms
that the CC license does not define. Whilst they are not part of the
agreement, courts will take note of them, as part of what the content
creator understood the license to mean.

> So here are two almost perfectly contradictory definitions of
Noncommercial Use. ... The salient point is that the definitions
contradict each other.

You've just provided the simplest explanation of why NC licenses neither
protect nor grant the rights that the typical user would expect from the
name.

> For this reason, BY-NC-SA works (like MIT OCW) and BY-SA works (like Wikipedia) cannot be remixed

Depending upon specific circumstances, they can be remixed. However,
this isn't something you want to do without the help of a lawyer that
specializes on copyright clearance issues.

> And you thought NC was confusing before!

I'm not sure NC licenses can be clarified, without breaking them into
three or four different licences:
* One that requires content to be distributed gratis for the recipient;
* One that explicitly prohibits usage by, for, or on behalf of
non-individuals;
* One that permits auxiliary, unrelated advertising;
* Something for what photographs consider commercial usage, but
everybody else considers to be non-commercial;
* Individuals and 501(c)(3) organizations can use the content, nobody
else may use the content;
* Individuals and educational organizations may use the content.
Everything else is "commercial" usage;
* Individuals and religious organizations may use the content.
Everything else is "commercial" usage;

>  if CC continues to refuse to define the NC term, individual Licensors are each going to want to provide their own definition. 

a) The lack of a definition of "Non-Commercial" in the license is a huge
omission.  It is not enough to say "that which is not commercial in
nature".
[My favourite example here is selling BY-NC-SA content in a commercial,
retail outlet. Perfectly legal, and completely within the license, if
you know how to do it. The sale is, legally speaking, not a commercial
transaction, and hence not prohibited by the license, or application of
local commercial law.]

>However, under no circumstances should they be allowed to do that.

Licensors are going to provide their own add-on document that explains
their understanding of the license. Whilst not legally binding, these
add-on documents will be used to demonstrate why the infringing party
knew, or should have known that what they were doing was an infringement.

> remix with other BY-NC-SA works would cease to be permitted for their works,

For all practical purposes, the only way to remix content that uses an
NC-BY-SA license is to treat it as if it is ARR.  [This is over and
above the normal due diligence that has to be done, regardless of the
alleged or actual license of the content being utilized.]


I am not a lawyer.  This is not legal advice.

jonathon

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