What is non-commercial?

Just like Fair Use, the term “non-commercial“ has to be filled with constructive discourse, to be understood and applied. In addition to that, the discourse should be held by creators of all kinds and levels as well as users.

Three out of six Creative Commons (CC) licences carry the attribute “non-commercial“. Collecting societies that try to implement the thought of CC, offer their own non-commercial licencse. Let‘s take a quick look at the differences.

I. Creative Commons

For CC the term „non-commercial“ means: „ not primarily intended for or directed towards commercial advantage or monetary compensation.“1

The main difference to the other definitions is the embracement of the fact that there are grey areas between commercial and non-commercial uses. That‘s why secondary advantages are not taken into consideration. Not to get in too deep at this point, but promotional and commentary purposes for example, might be two of those. The latter is a conversation point when it comes to Fair Use as well. But that‘s a work in progress, maybe a never-ending story. Also noteworthy; By this definition the intention counts. Meaning if unintented or unsolicited financial benefits arise, CC should be fine with it. I don’t regard this a loophole, because there’s enough case law concerning the question, if  something had to/ could be expected in business.

Preventing copyright infringement with a CC license might be one of the factors that immensely increased the use of CC licenses over the last decade.

II. Collecting Societies

There’s hardly any source directly from US collecting societies or the copyright office that offers clearance on their interpretation of the term. But there is a very detailed explanation by the german PRO – GEMA. Being that ASCAP is an organisation just like GEMA – being founded an run by creators – it may not be wrong to assume their points of view are pretty much congruent. At least until further notice.

The german collecting society – GEMA2 – a pretty long-winded explanation with a bunch of exemptions AND the note that each case has to be viewed individually.

Excerpt: “Commercial are all uses that are directly or indirectly aimed at a business advantage or financial compensation.“

So far it’s congruent with CC’s definition. But here comes the catch:

This includes all uses that result in a direct or indirect financial benefit or such benefit is intended without regard of the nature of the use or the licensee.“

Here’s the thing; First part of the definition seems plausible and as far as my research showed, creators and users mostly agree on this part. The problem lies with indirect business/financial advantages. Including this in the definition creates a big legal uncertainty that was supposed to be eliminated by introducing non-commercial licenses. The only way to clear that uncertainty is a case-by-case ruling by GEMA.

It also means, that if a financial benefit occurs, which no one has expected or thought of, let’s say a voluntary, unrequested donation is paid into your account, you would actually have to contact GEMA. You would need to let them know of the (unwilling) license infringement and get another, commercial license. Bureaucrazy!

Another thought;

Organizations like GEMA and ASCAP are built and run by music professionals of all kinds. They percive the right holders’ rights in their name. Shouldn’t there be some kind of minority protection to those creators who want to take a more liberal approach to the interpretation of the term non-commercial??

Let me know what you think in the comment section!

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