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In Defense of the Creative Commons Non-Commercial License

If you’ve heard me talk about the Creative Commons before, you’ve probably heard me make the claim that the organization’s gift to the world is not – as might be supposed – more licenses. My firm belief is that, instead, what the Creative Commons has done exceptionally well is to help people understand the implications of licensing choices. With one exception, which is what we’re here to talk about.

Rather than present content authors with a bewildering set of obscurely titled licenses written by lawyers for other lawyers, the Creative Commons lets pretty much anyone make a simple set of choices regarding what others may or may not do with their work. You may modify this work, or you may not. Or you may, but you have to share the derivation under the same terms. And so on. Which works well, generally, and has seen the Creative Commons become far and away the most popular set of licenses for content that is not code this side of All Rights Reserved.

Except for the exception: the non-commercial provision.

Mark Pilgrim once said Non-Commercial licenses were “too restrictive,” Stephen Shankland thinks they are a “legal minefield,” and Gordon Haff call the NC restriction “problematic.”

My view? They’re all right.

It’d be tough to build a case arguing anything else, actually, when even the Creative Commons itself is admitting as much. As announced by Joi Ito, the CC is launching a study of “Noncommercial use.” If the authors of the license don’t understand it, I’d say it’s safe to conclude there’s an issue. But I would argue that stripping the Noncommercial license, as Gordon argues for, would be throwing out the baby with the bathwater.

When I made this argument, Gordon asked – quite reasonably – what we gained from using the NC license derivatives. My reply was that it makes commercial organizations ask me first. To explain, let’s look at two cases that involve me personally and professionally.

At RedMonk, I currently employ two licenses for my content: a Creative Commons BY-NC-SA and a BY-SA. As discussed when we announced the plugin we had built to accomodate both licenses, they are identical in that they require users to both include attribution of my work and to share derivative works under the same terms; the sole distinction is that one prohibits commercial usage and one does not. We apply the noncommercial version of the license for sixty days – when the content is, at least theoretically, most valuable – and then retire it in favor of the more permissive variant.

We employ these restrictions not to be onerous or overly restrictive, but rather to require that commercial organizations ask us before they use our content for their own commercial profit. In most cases, we’ll simply agree; in others, it might be something we’d require payment for. But either way, the noncommercial provision compels them to ask first; without it, there’s no need. And in spite of the restriction, our content is simultaneously available for noncommercial usage and repurposing, and is heavily leveraged under those terms.

The feedback? While the noncommercial license does impose restrictions, we have yet to field a single complaint about our new policy of graduating the content from one license to another.

On a personal level, I’ve had a few pictures solicited for usage by commercial organizations. This picture, for example, is included in Schmap’s guide to Denver. My compensation for the shot? Nothing; it’s not that great a shot in the first place. And yet Schmap had to ask, because the asset is licensed with a noncommercial provision. It’s possible that, absent the license, I would never even be aware that the picture had been used in this fashion, because there would be no legal need for Schmap to inform me.

I like that, as an author, commercial entities have to ask. The overwhelming majority of the time an organization wants to use something I or RedMonk has produced, we’ll be amenable. But on the off chance that it’s a commercially viable asset, or we disapprove of the usage, it’s nice to have some protection. Imperfect though that protection might be, for authors and content consumers, it works for me, and I personally don’t consider the above examples all that unusual. Certainly not corner cases, as Gordon might argue.

I’ll make no argument here that the Creative Commons has or will achieve the same type of simple messaging for noncommercial usage that they have with, say, allowing modifications. The licenses aren’t perfect now, and they’re unlikely to be in future. But as someone who both uses and sees the benefit of NC variants, I cannot support calls for their demise, because at least in my case, it would result in a pullback of content from a license that grants the commons some rights.

Some rights, after all, are better than none. Or so it seems to me.

Categories: licensing.


  • Simon Phipps

    The problem here is similar to the one people have understanding open source licenses. We have got very used to the role of a license as being to define the parameters for a bilateral relationship. But as Eben Moglen points out, open source licenses are more about defining the context of shared values for a community, and when we see them that way choices become much easier.

    CC licenses are not so much about defining exact terms for a bilateral relationship (although they can do that, and well enough that Gordon, Stephen and others see them as playing that role) as defining the bounds of a sharing community. As I tweeted at the time of the original conversation, the CC license is there to tell you when you have to go ask for rights as much as it is there to give you rights.

    So the non-commercial clause has massive value, becuase it tells your community the point at which they need to go ask for rights. As soon as it’s not clear rights are available, go ask. People who use CC licenses are usually delighted to help.

  • Gordon Haff

    I appreciate the response to my argument–even if I don’t necessarily agree. I’m still muddling this and may have to do another post, but a few thoughts.

    - We all benefit from open content that has been released as such by its owners. I’d like the rules for explicitly asking for permission to use that content (as Simon notes is what CC is really about) be defined as simply and crisply as possible.
    - Defining commercialness seems very difficult. And there is certainly no consensus today. (See endless threads on flickr for example.)
    - But it could be done–though I suspect there would be little consensus of a broad community.
    - I would see such a definition being in the vein of allowable uses by stock photo sites–basically, you can’t just take the whole work and resell it.
    - I’m not sure how this maps for different types of content. I see the “not post a RedMonk blog entry about X on X’s site.” But how to distinguish from incidental use of a random photo in a presentation by employee of X at a conference?
    - But if you don’t, you’re back to essentially all usage being commercial.

  • Simon Phipps

    @Gordon Haff: “I’d like the rules for explicitly asking for permission to use that content be defined as simply and crisply as possible.”

    How about “If you’re not comfortable you personally have the necessary rights, ask. If the rights-holder isn’t comfortable, they will ask”?

    Remember, the rule for open source licenses is to try to make it work. Same goes for CC licenses – I always ask abusers to fix things, I never start with a legal threat. So that’s as precise as I need for my own use of CC licenses.