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CC, the CBC, and What We Talk About When We Talk About “Noncommercial”

Just over a year ago, in September 2009, Creative Commons published the lengthy Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” (PDF, creativecommons.org), which I have only just begun to read.

I’ve always wondered what qualifies as “commercial use” when it comes to Creative Commons music. The pressing concern for netlabels, which often release music under the Creative Commons license, is: Does having a blog about music, and streaming or providing download links to non-commercial-use CC music, count as “commercial” if the blog features advertising? How about podcasts, or radio shows, that also have advertising? There are currently no ads on Disquiet.com, so it’s a moot point here, from a practical perspective. (This site is licensed by CC “permitting non-commercial sharing with attribution.”)

But from a philosophical perspective, it’s a pressing concern. The reason: An apparent decision by the CBC to not use CC music on its podcasts has brought the issue to the fore. There’s good coverage and comment-discussion at michaelgeist.ca, techdirt.com, and createdigitalmusic.com.

An overview of the September 2009 Defining “Noncommercial” survey, in the form of a press release (creativecommons.org), provides some initial insight, stating that websites on which advertising is in the realm of “cost recovery” (“to cover hosting costs”), as well as “use by not-for-profits,” is not viewed as “commercial” as much as are more clearly for-profit uses.

The forums at Creative Commons appear to be underutilized (forum.creativecommons.org), and as of this writing there’s no mention of the CBC issue at twitter.com/creativecommons either, so let’s look forward to a formal response from the organization.

By Marc Weidenbaum

Tags: , / Comments: 7 ]

7 Comments

  1. anonymous
    [ Posted October 9, 2010, at 10:40 pm ]

    Commercial use is undefined. It is defined in law by its precedent and use. So you need to read a bunch of case-law or rely on someone’s interpretation you trust in order to determine commercial use. This is why CC doesn’t define commercial use.

    NC as a CC license is not a great license. It means I can’t be sure about what I can do when distributing your NC’d material. What if I have an ad? What if in my country that ad counts as commercial use? Because of CC’s lack of definition of what they consider commercial use, we’re in this boat.

    Basically the NC licenses are dangerous to everyone except P2P users and the original creators themselves.

    I suspect though that the CBC thing was more than commercial-use.

    Commercial-use is defined by courts, not by the CC survey.

  2. [ Posted October 9, 2010, at 11:14 pm ]

    Commercial use seems pretty easy to define, to me. If you are using the music as part of a profit making enterprise, then it is commercial and you should pay a licensing fee. So, yes, that profit oriented blog that snipes CC music so the blog owner can sell advertising in the hopes of making more money by pulling in listeners is commercial use and should license from the artists, sharing some of the profits. While the not-for-profit blog that is covering basic costs is not and should have no worries. It is a simple as PBS versus CBS, really.

    Or at least it seems that way to me.

    • [ Posted October 10, 2010, at 9:43 am ]

      Yeah, I see it the same way you do. The thing is, apparently not everyone sees “non-commercial” the same way. This is something that needs to shake out. I have a lot of confidence in Creative Commons, but there is work to be done.

  3. [ Posted October 9, 2010, at 11:19 pm ]

    NC as a CC license is not a great license. It means I can’t be sure about what I can do when distributing your NC’d material. What if I have an ad? What if in my country that ad counts as commercial use?

    Wrong. Dead wrong.

    It means you need to contact the artist and clarify whether or not your use would be considered commercial by the artist. That is all that matters. There is no need for courts unless you are unwilling to respect the artist and ask permission when you feel there may be a misunderstanding.

    • anonymous
      [ Posted October 10, 2010, at 8:26 am ]

      If I have to ask the artist every time for commercial use allowance then I cannot use any form of automation to work with their work other than contacting them.

      It means that NC is a really awful license. The Debian free software guidelines exist so that Debian can determine if Debian and any other distributor of debian down the line is legally allowed to redistribute the work. NC cannot be redistributed by debian because debian allows commercial use (which is a requirement for anything to be opensource or to be DFSG-approved). This means that NC is Free/Libre Open Source Software (FLOSS) incompatible.

      Asking the artist every single time is difficult and it defeats the purpose of such a license for distribution. Terms should be clear and commercial use is not clear, it is very undefined for a layperson. Basically I can’t touch NC other than for personal consumption without doing what icastico suggested. What does this mean? I am licensed something with dangerous and ambiguous terms that in every case needs clarification.

      What does this prevent? * automation * automated generation * remixing * distribution of your own remixes * Using NC audio as a track for a video (unless explicitly licensed) * Radio play

      I suspect CC-BY-ND could allow massive uptake and copying while still allowing weak commercial use.

      You could even try to be more complicated and dual license it CC-BY-NC.

      But really if you’re using CC, you should just use CC-SA, share-alike, that will stop advertisers from using your stuff because then they’ll have to open it too. Share-alike is better than no commercial-use because it is clear and scares proprietary people like commercial organizations.

      • [ Posted October 10, 2010, at 9:42 am ]

        If I have to ask the artist every time for commercial use allowance then I cannot use any form of automation to work with their work other than contacting them.

        The Debian contrast is interesting. Thanks for bringing it up. I’ll dig into that some more.

        Remixing and video-track usage aren’t prevented, so long as those are non-commercial. Creative Commons exists in part to allow for remixing and non-commercial video-track use.

        The other issues you raise (as well as commercial versions of remixes and video use) are outstanding, and I’m looking forward to seeing it sorted out.

        Non-commercial CC doesn’t keep someone from simultaneously using standard copyright for commercial use. These things aren’t antithetical; they can be used in parallel.

      • [ Posted October 10, 2010, at 9:47 am ]

        If I have to ask the artist every time for commercial use allowance then I cannot use any form of automation to work with their work other than contacting them.

        The problem with your complaint, from my perspective, is that you are ignoring that CC licenses don’t in anyway negate artist’s copyrights. If I release with “all rights reserved” you have to contact me to license any non-fair-use usage of my creation. Releasing under CC with a Non-commercial stipulation is designed to let those who want to use the creation in a non-commercial way know that their use is fine with the artist and they don’t need to worry.

        But for users that are involved in more complex usages of the product that raise concerns that the use may be violating the artist copyright, a complaint that it is bothersome to contact the artist and clarify that issue rings pretty hollow to my ears. A CC license does not save you any of the legally required steps needed to clear the usage when your usage might be seen as commercial. A CC license with a non-commercial use is OK license is one-step clearer than “all rights reserved” and as such is beneficial for everyone. For the vast majority of non-commercial users, the CC license is clear enough and effective.

        I agree with your comments regarding share-alike.

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