[cc-licenses] Need clarification: What is "commercial"?

Kevin Phillips (home) tacet at qmpublishing.com
Wed May 2 18:55:37 EDT 2007

Hey Jake,

You make a good point, it's one that has been covered here many times but to
no particular resolution.

There is a lot of scope for some kind of "NR" license, which means the work
is not to be directly "resold" for instance, or a "free" license which works
like NC (but without the Sound Exchange element for audio recordings) and
with some kind of "fair use" clause (educational use too).

I've been mulling over some questions/scenarios too recently, along these
lines.  I could be wrong (please correct me guys if any of this is
incorrect) but....

NC seems to me to be a cul de sac of a license, and it's ironic (to my mind
at least) that it's one of the few licenses from a musician's perspective
where compulsory licenses (ASCAP/SoundExchange) are not waivered.  So, in
releasing under NC I'm disallowing a podcaster from using the work (unless I
expressly permit it on a case-by-case basis), if he has so much as a google
ad or tip jar.  Yet the same podcaster is expected to pay SoundExchange a
commercial fee for the playback of my work if he follows the license terms.

So alternatively I can license a song under BY or BY-SA and earn nothing
(compulsory licenses are waivered), yet other musicians can freely adapt or
use my song, go on to resell their spin-offs or remixes without so much as a
$1 tip for me.

It could be that I'm confused here, or it could be that there really is a
need for some kind of alternative scheme.

BY/SA would be less confusing to me if the SoundExchange fee wasn't
auto-waivered.  Because what you're saying is in the instance where someone
makes a commercial end-product, at least the originator gets a small piece
of the action.  Much like a songwriter in the (c) commercial world does.  NC
would be less confusing to me if there was no commercial element (waivered
SE fees).

Just my random thoughs, I'm not a lawyer by any stretch of the imagination


----- Original Message -----
From: "Jake McKee" <jake at countersinkdg.com>
To: "James Grimmelmann" <james at grimmelmann.net>
Cc: "Discussion on the Creative Commons license drafts"
<cc-licenses at lists.ibiblio.org>
Sent: Wednesday, May 02, 2007 10:42 PM
Subject: Re: [cc-licenses] Need clarification: What is "commercial"?

> Thanks for the info, James. After reading through that info we're still
> assuming that "commercial" has been previous defined and agreed on. The
> flowchart, for instance, starts with "Is the user non-commercial".
> Ok, so let's take this to a very specific, single question I regularly
> "Can I use NC licensed images in a powerpoint presentation for work?"
> If the answer is a flat no, simply because the usage is applied in a
> commercial setting, that seems like the NC license isn't very effective.
> After all, if you're lumping "commercial presence" together with
> "commerce", then the CC NC isn't doing a very good job of "clarifying
> intent" (which is how I view CC)
> I've raised this question in years past and never heard much discussion
> about it. My question is simple: Why not create two NC attributes? One
> that covers any connection with commercial activity (i.e. if the content
> even touches business/commercial activity, it's in violation) and one
> that covers resale specifically.
> Personally, for example, I don't care what happens with my photography,
> so long as someone doesn't resell it. To me, having a photo used for a
> personal web site isn't any different than having it used in a
> commercial PPT presentation or internal memo.
> So I'm new to this CC discussion (not CC generally, however) - is there
> a better place for me to argue my case?
> Thanks!
> Jake
> James Grimmelmann wrote:
> > Jake McKee wrote:
> >
> >> I'm trying to better understand the noncommercial attribution - namely,
> >> what is "commercial" usage?
> >>
> >> Clearly reselling someone's work is "commercial", no questions there.
> >> But what about usage in commercial activity that isn't commerce? For
> >> instance:
> >>
> >> - Using an image in a powerpoint slide for your business venture (or
> >> heck, even a non-profit)
> >> - Using an image on a web site for your business or organization
> >>
> >> Maybe I'm just not well versed enough in the legalities, but to me,
> >> that's a big huge part of the point of CC - making it easy enough that
> >> don't have to be a lawyer to understand. :)
> >>
> >
> > The definition of "commercial" is not definitively stated anywhere, but
> > CC has produced a set of guidelines that may be helpful:
> >
> > http://creativecommons.org/weblog/entry/5752
> > http://wiki.creativecommons.org/DiscussionDraftNonCommercial_Guidelines
> >
> > The CC wiki has s few more links related to the guidelines:
> >
> > http://wiki.creativecommons.org/NonCommercial_Guidelines
> >
> > including particularly a flowchart:
> >
> > http://www.adamfields.com/CC-NC-allowed-uses-flowchart.pdf
> >
> >
> > The answer to your questions, according to the guidelines, are that a
> > business can never make a noncommercial use (unless it's merely helping
> > a nonprofit or a person to make a noncommercial use).  The slide for the
> > nonprofit and the web site for a nonprofit are probably not commercial
> >
> > James
> >
> >
> >
> >
> >
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