Andrew W. Mellon Foundation

Defining Noncommercial report published

Mike Linksvayer, September 14th, 2009



Almost one year ago we launched a study of how people understand “noncommercial use.” The study, generously supported by The Andrew W. Mellon Foundation, included in-depth interviews and two waves of in-person and online focus groups and online questionnaires. The last included a random sample of U.S. (geographic restriction mandated by resource constraints) internet users and in an extended form, open questionnaires promoted via this blog (called “CC Friends & Family” in the report).

Today, we’re publishing the Defining Noncommercial study report and raw data, released under a CC Attribution license and CC0 public domain waiver respectively — yes, this report on “noncommercial” may unambiguously be used for commercial purposes. Also see today’s press release.

The study was conducted by Netpop Research under advisement from academics and a working group consisting of several CC jurisdiction project members as well as CC staff and board members.

Study findings

Creative Commons noncommercial licenses include a definition of commercial use, which precludes use of rights granted for commercial purposes:

… in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

The majority of respondents (87% of creators, 85% of users) replied that the definition was “essentially the same as” (43% of creators, 42% of users) or “different from but still compatible with” (44% of creators, 43% of users) theirs. Only 7% of creators and 11% of users replied that the term was “different from and incompatible with” their definition; 6% or creators and 4% of users replied “don’t know/not sure.” 74% and 77% of creators and users respectively think others share their definition and only 13% of creators and 11% of users wanted to change their definition after completing the questionnaire.

On a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial” creators and users (84.6 and 82.6, respectively) both rate uses in connection with online advertising generally as “commercial.” However, more specific use cases revealed that many interpretations are fact-specific. For example, creators and users gave the specific use case “not-for-profit organization uses work on its site, organization makes enough money from ads to cover hosting costs” ratings of 59.2 and 71.7, respectively.

On the same scale, creators and users (89.4 and 91.7, respectively) both rate uses in which money is made as being commercial, yet again those ratings are lower in use cases specifying cost recovery or use by not-for-profits. Finally, both groups rate “personal or private” use as noncommercial, though creators did so less strongly than users (24.3 and 16.0, respectively, on the same scale).

In open access polls, CC’s global network of “friends and family” rate some uses differently from the U.S. online population—although direct empirical comparisons may not be drawn from these data. For example, creators and users in these polls rate uses by not-for-profit organizations with advertisements as a means of cost recovery at 35.7 and 40.3, respectively — somewhat more noncommercial. They also rate “personal or private” use as strongly noncommercial—8.2 and 7.8, respectively — again on a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial.”

See much more in the study report and draw your own conclusions from the data.

The below is drawn from the Section 4 of the report, titled “Next” — we urge you to read that section for more, including ideas for future research.

Import for Creative Commons noncommercial licenses

In the next years, possibly as soon as 2010, we expect to formally kick off a multi-year, international process for producing the next version (4.0) of the six main Creative Commons licenses.

This process will include examination of whether the NC term should be usefully modified as a part of that effort, or if the better approach might be to adopt a “best practices” approach of articulating the commercial/noncommercial distinction for certain creator or user communities apart from the licenses themselves. Whichever the result, this study has highlighted that in order to meet the expectations of licensors using CC NC licenses it will be important to avoid any modification of the term, however manifested, that makes a use widely agreed to be commercial — or only agreed to be noncommercial with low consensus — explicitly noncommercial. There is an analogue in our statement of intent for CC Attribution-ShareAlike, which provides assurances that we will not break the expectations of licensors whose intent is to release works under copyleft terms.

While the costs of license proliferation are already widely appreciated and resisted by many, the study weighs against any lingering temptation to offer multiple flavors of NC licenses due to strong agreement on the commerciality of certain use cases that, in the past, may have been considered by some to be good candidates for splitting off into specialized versions of the NC term, such as online advertising. For even in those cases where strong agreement may appear to exist upon initial inquiry, such as with online advertising, nuances and sometimes strong differences of opinion are immediately revealed when more specific use cases are tested and facts presented — such as those involving cost recovery or support of nonprofit organizations.

The study results also advise against any concerted effort by CC to attempt appeasing all license users, all the time — study participants are divided over the value of more or fewer specific “use cases” to delineate the commercial/noncommercial divide, some see the lack of specific uses as a strength and others as a weakness, and many others still disagree with the notion that a single definition of noncommercial use could be workable. Thus is the challenge, and opportunity, of public license stewards.

Aside from decisions about the NC licenses themselves, we will be looking back to the study as we update explanations of noncommercial licensing on our license deeds, license chooser, and other materials. Your ideas and feedback are most welcome (see below).

Creative Commons recommendations on using noncommercial licenses

Overall, our NC licenses appear to be working rather well — they are our most popular licenses and we are not aware of a large number of disputes between licensors and licensees over the meaning of the term. The study hints at some of the potential reasons for this state of affairs, including that users are in some cases more conservative in their interpretation of what is noncommercial than are creators and that in some cases creators who earn more money from their work (i.e., have more reason to dispute questionable uses) are more liberal in their interpretation of what is noncommercial than are those who earn less.

While it would take a more focused and exhaustive study to conclude that these seemingly fortunate attitudinal differences are correct, strong, and global, they do hint at rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses — licensors should expect some uses of their works that would not meet the most stringently conservative definition of noncommercial, and licensees who are uncertain of whether their use is noncommercial should find a work to use that does unambiguously allow commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain) or ask the licensor for specific permission (interestingly about half of respondents to the “CC Friends & Family” questionnaire who had released works under a NC license indicated that they had been contacted for specific permission). Note that this rule of thumb has an analogue in network protocol design and implementation known as the robustness principle or Postel’s Law: “Be conservative in what you do; be liberal in what you accept from others.”

One way to think about Creative Commons generally is of providing tools to prevent the failed sharing that results from relying on copyrights’ defaulting to “all rights reserved” — uses that you would allow but that will not occur because you haven’t authorized them (maybe haven’t even thought of them) and the costs of finding you and getting authorization are too high for the intended use (or maybe you’re dead and even scholarly use of your works is suppressed by your estate). This sounds dry, but think about the anti-network effects of failed sharing at the level of a society, and the costs are large indeed. Some have realized that too much use of NC licensing suppresses uses that a licensor who wants to share may wish to allow, at a cost to NC licensors and licensees and a greater cost to communities and the broader free culture movement — failed sharing, though at a much smaller scale than the failed sharing engendered by default copyright. The Definition of Free Cultural Works website includes an article summarizing reasons to avoid NC licenses (and use a free license such as CC BY or CC BY-SA). If you’re concerned about the costs of NC licensing to yourself, the free culture movement, or society at large, review the arguments and consider “dropping -NC” from your license.

The potential negative impact and corresponding lack of use of noncommercial licensing differs across fields. For example, noncommercial licenses do not exist at all in the free and open source software world (note that CC recommends using a free and open source software license for software). Science and education are two large fields in which we believe that liberal licensing or the public domain are most appropriate. Unsurprisingly Wikipedia, with strong relationships with the free software, open access (scientific publishing), and open education movements, mandates liberal licensing, and many other massively collaborative projects are following.

However, compelling use cases for NC licensing remain — most obviously when an existing significant revenue stream from a work would be compromised by release under liberal terms. Giving your audience legal certainty that they won’t be prosecuted for doing what comes naturally from using digital networks — copying and remixing for no commercial gain or monetary exchange — while exploring the sharing economy and still protecting existing business — these are great reasons to start or continue releasing works under a NC license. It is little surprise that major music and book publishers’ use of CC licensing thus far has almost exclusively been of the NC variety.

How to participate in the discussion

There are a variety of ways you can participate in discussion of this study, the future of CC NC licenses and accompanying material, and future research on this and other topics related to voluntary sharing:

Thanks to everyone who has contributed in any way to this work!

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Second Round of the Noncommercial Use Study — “User” Questionnaire Launched

Mike Linksvayer, April 15th, 2009

Creative Commons is launching the second and final round of a survey intended to collect information on how people understand the term “noncommercial use”. As previously announced, this study is funded by The Andrew W. Mellon Foundation, and we are fortunate to have the help of a distinguished group of advisors and colleagues.

During the first phase of the study, which took place last fall, we focused on talking with and surveying creators, using a questionnaire that was fielded to a sample of US-based content creators, and also made available (in an expanded version) to anyone interested. See 1, 2, 3.

Now we want to hear about noncommercial use from the user’s perspective — recognizing of course that the creator/user distinction is itself worthy of study! Whether you consider yourself a member of the Creative Commons community, or are interested more generally in copyright, we hope you will respond. While answering all the questions can take a while, particularly if you have a lot to say, many people who participated last time found it an interesting and useful experience.

Note that we could not incorporate as many suggestions from the previous questionnaire (see comments on posts linked above) as we would have liked due to the structure of the study — we want to be able to compare data from the two phases of research, and to be able to do that, we have to retain the wording of certain concepts and questions.

While to our knowledge this is the first empirical research project to tackle understanding how people define “noncommercial use”, we hope it is only the first of many efforts to explore the many dimensions of the subject. We will release the raw empirical data collected and some early reports from the first (creator) questionnaire next week, and will release a report on the full study and all data this summer. We hope others will be able to mine and build on this data.

If you’ve read this far, we know you have an opinion, and we hope you understand that we’re trying to provide a way for you to share that opinion. What are your views? Please help us make the data set as robust as possible! Take the questionnaire (allow 15-25 minutes), and help us tell others about it.

Questions about the study or this poll may be sent to noncommercial@creativecommons.org.

9 Comments »

Creative Commons Launches Study of “Noncommercial Use”

Eric Steuer, September 18th, 2008

Today, Creative Commons announced the launch of a research study that will explore differences between commercial and noncommercial uses of content. The study will explore how the definitions of “commercial use” and “noncommercial use” are understood among various communities and in connection with a wide variety of content.

“The study has direct relevance to Creative Commons’ mission of providing free, flexible copyright licenses that are easy to understand and simple to use,” said Creative Commons CEO Joi Ito. “The NC term is a popular option for creators choosing a Creative Commons license, and that tells us the term meets a need. However, as exponentially increasing numbers of works are made available under CC licenses, we want to provide additional information for creators about the contexts in which the NC term may further or impede their intentions with respect to the works they choose to share, and we want to make sure that users clearly understand those intentions. We expect the study findings will help us do a better job of explaining the licenses and to improve them, where possible. We also hope the findings, which will be made publicly available, will contribute to better understanding of some of the complexities of digital distribution of content.”

You can read more about this news in the press release CC issued this morning.

Thank you to The Andrew W. Mellon Foundation for its generous support of this study.

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