I can’t define it, but I know it when I see it

No, the title, a paraphrase of a famous remark by Justice Potter Stewart, does not refer, in this instance, to pornography, but to non-commercial uses of copyrighted works.

One of the persistent criticisms — or perhaps reservations is the correct word — about the Creative Commons licensing scheme has been that one of the major terms used in CC licensing — non-commercial use — is too vague and subject to varying interpretations.  The core purpose of the Creative Commons, of course, is to allow copyright holders to license their works in a way that assures subsequent users that they can make use of the works within defined parameters.  Two of those parameters are attribution, which is protected by CC licenses even though not adequately ensured under U.S. copyright law alone, and, often, a restriction to non-commercial uses.  But if there is no agreement on what it means to call a use non-commercial, then there is a real problem with the licensing scheme; it would fail to provide that assurance, which reduces the need for transaction costs involved in seek permission, that is its basic purpose.

Now the Creative Commons has released a voluminous report it commissioned to study this potential problem.  Although “Defining Noncommercial” is a massive document that I have not read in its entirety, it is clear from the executive summary and a perusal of the survey data that the situation is not really as serious as some feared.  The report suggests that although a comprehensive definition of noncommercial remains elusive, there is not a major problem with its use in CC licensing.  Basically, most people seem to agree that “they know it when they see it.”

Two specific findings in the report struck me as particularly supportive of the continued use of “non-commercial” as a licensing term.  First, the marketing firm that did the research found that there was broad agreement on what non-commercial meant.  Most creators and users agreed that a use that made money for the user or involved advertising was commercial, while those that did not, were not.  This broad agreement helps explain why the millions of items licensed under CC licenses have generated so little litigation in the eight years since its founding.

Even more interesting was the finding that showed that when creators and users disagreed about whether or not a use was commercial, it was the users who were more likely to err on the side of seeing a use as commercial, and thus not covered by an “nc” license.  The reason this is such an encouraging finding is that it suggests that users will ask permission in doubtful cases, even when the creators (who hold the rights) do not think permission is needed in the particular situation.  Thus CC licenses can reduce the transaction costs involved in seeking permission, but they will not eliminate all need for permission and users are likely to ask when they are in doubt.  CC licensing, of course, facilitates asking permission as well, since works so licensed will have an identifiable rights holder.

This finding is consistent with our experience at the Duke University Libraries, where we placed most of our web pages under a CC license over two years ago.  We still do receive some requests for permission, even for pages that carry the CC license.  I try to inquire about why people are asking when the page carries a prior permission that almost always covers the proposed use.  Invariably I am told (mostly by other librarians) that they consider asking both the cautious and the courteous thing to do.  So while we believe that the license empowers many users and reduces transaction costs, we also see that users who are in doubt feel free to contact us for clarification.  This confirms that the non-commercial term is not the problem that some have feared.

Creative Commons has always striven to make its licenses effective and useful, and this study is one more tool for understanding how those licenses are and can be employed.  The CC itself suggests three lessons that we can take away from this study:

the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use.

Good advice, available for those who want to be sure that, in regard to non-commercial use, we “know it when we see it.”