It's a limitation of using loosely defined terms in a licence. Great for meeting the perceived needs of licensors (arguably), not so comfortable for users. However, in most use cases (I almost typo'd 'use' as 'sue' - Freudian slip?!), a sensible decision will suffice. In others, I'll grant, it's an inconvenient choice between don't use/ask/use with risk. With respect to the opening scenario, and noting that only the licensee can make the risk decision, if the payment could be shown only to cover the costs of physical reproduction, and that it was part of an activity which could classed as being within the 'public good', and if it wasn't otherwise related to a commercial activity, I'd be taking a decision that such reproduction was consistent with NC. However, I'd be first checking to see whether I could stick to OERs which didn't have the NC restriction (and if so, perhaps telling NC licensors that their OERs aren't being included because of the uncertainty over that restriction. Cheers, Jason Jason Miles-Campbell | Manager | Jisc Legal | T 0141 548 2889 | E [log in to unmask]<mailto:[log in to unmask]> Jisc Legal, a part of Jisc, is hosted by the University of Strathclyde, a charitable body, registered in Scotland, with registration number SC015263 From: Open Educational Resources [mailto:[log in to unmask]] On Behalf Of Pat Lockley Sent: 18 March 2014 13:06 To: [log in to unmask] Subject: Re: non-profit = non-commercial ok, so 4 pints IOU attached So if NC is defined by the licensor, then you'd need some level of due diligence (to upgrade from "getting it") would be required and logistically this could only be via a side letter / communication with the licensor? Which works with a small set of materials but not really with a large collection Thanks though On Tue, Mar 18, 2014 at 12:12 PM, Jason Miles-Campbell <[log in to unmask]<mailto:[log in to unmask]>> wrote: The fundamental issue here is that 'non-commercial' is not an externally-defined concept. As part of a licence, it represents the understanding between the licensor and the licensee, in the particular context which brings them together. Statutory terms are often defined explicitly, or through the consideration of the courts. However, terms of a licence can only be defined as part of that licence. So it's not about 'getting' NC, it's about the in-built ambiguity of a concept that depends on its context. That's why the report that Creative Commons commissioned on the NC restriction didn't conclude with definitive statements as to its meaning. Instead, it analysed various factors which could be considered. Now, it might be advantageous to remove such uncertainty, and, as I understand it, I think there may have been some consideration of removing the NC qualified licences from the CC 4.0 suite (as it happens, they stayed in). The sticking point, I think, is that there is a strong demand from licensors to be able to restrict commercial use. Perhaps if licensors were offered a more closely defined restriction "NTBS" (not to be sold), they'd be willing to switch. In the meantime, licensors are free to define their interpretation of NC, or answer queries on such, as they like. They are likewise free to use an ad hoc licence if the CC terms don't suit them. As much as I would like to be granted omnipotence to define 'NC' once and for all for the universe, that doesn't fit, alas, for better or worse, with the art of licence interpretation. In the absence of omnipotence, I'm always willing after four pints and a signed disclaimer to give my views on the application of NC in any particular use scenario :) Cheers, Jason Jason Miles-Campbell | Manager | Jisc Legal | T 0141 548 2889 | E [log in to unmask]<mailto:[log in to unmask]> Jisc Legal, a part of Jisc, is hosted by the University of Strathclyde, a charitable body, registered in Scotland, with registration number SC015263 From: Open Educational Resources [mailto:[log in to unmask]<mailto:[log in to unmask]>] On Behalf Of Pat Lockley Sent: 18 March 2014 11:51 To: [log in to unmask]<mailto:[log in to unmask]> Subject: Re: non-profit = non-commercial The only time at work I wanted to use a NC license I asked the creator for their definition and we agreed the use case I presented was commercial so I didn't use it. So to summise so far 1) No one really gets NC 2) Some people feel the spirit of NC means non-profit is ok (which I agree with) On Tue, Mar 18, 2014 at 11:34 AM, Scott Wilson <[log in to unmask]<mailto:[log in to unmask]>> wrote: On 18 Mar 2014, at 11:22, David Kernohan wrote: > Hi all - no-one has ever understood the creative commons non-commercial clause. There are rumours that somebody at CC central once did, but this was quickly hushed up and the person responsible is now safely hidden away in Kazakhstan. > > Unsurprisingly, there is little case-law around NC. > > A former Dutch MTV VJ (remember VJs?) shared some images on Flickr via a BY-NC-SA license and a gossip magazine reprinted them. The magazine was fined and told not to do it again, but this centred on the SA component of the license. > http://news.cnet.com/2100-1030_3-6052292.html > > The Vodafone Australia case (http://en.wikipedia.org/wiki/Virgin_Mobile_Australia ) was the other main one, but all mentions other than on Wikipedia now appear to be behind "The Australian" 's paywall. > > I've been consistent in advising people always to go for -SA clauses rather than -NC clauses to avoid confusion (and I'll reiterate this here for any new readers). But if something is NC and your use may be commercial in some obvious way I would advise people to contact the source of the material and ask them. Also worth remembering that the rights owner can issue the same resource with different licenses. So there is nothing to prevent the rights owner issuing a standard commercial use license that removes the "NC" ambiguity. Though if you do issue resources under an NC clause, I think the best strategy is to prominently display an explanation of what YOU think NC means, as that will help licensees figure if they can comply with your intent. > > David > > > - > David Kernohan > Jisc > > -----Original Message----- > From: Open Educational Resources [mailto:[log in to unmask]<mailto:[log in to unmask]>] On Behalf Of Alex Fenlon > Sent: 18 March 2014 11:01 > To: [log in to unmask]<mailto:[log in to unmask]> > Subject: Re: non-profit = non-commercial > > Hi Pat et al. > > I remember several of these discussions taking place over recent weeks and months (and years even!) as we've struggled with the different interpretations. I seem to recall there was something from CC themselves about taking care to define what NC means. I think the advice was for each Licensor that grants an NC licence to consider what it defines as commercial use and also NC. This would remove the ambiguity at least for Licencees of those particular works and help in those circumstances. (I also have bells ringing where certain OER-ers did do this ... ?) > > Not sure that helps much either with the umbrella approach you might be looking for Pat. > > Alex. > > -----Original Message----- > From: Open Educational Resources [mailto:[log in to unmask]<mailto:[log in to unmask]>] On Behalf Of Chris.Pegler > Sent: 18 March 2014 10:53 > To: [log in to unmask]<mailto:[log in to unmask]> > Subject: Re: non-profit = non-commercial > > Pat > > If its non profit its not profitable after all costs are accounted for, which raises an issue about what the costs are and so what the 'cost price' is. For example its common in universities for the cost of an academic to include not only their salary but also a whole load of overheads. This can almost double the cost and includes an automatic allocation to all sorts of general expenses. Did you mean 'direct costs'? > > This sort of discussion also comes up when charities charge large admin fees. For example including large salaries. > > This may not be the solution that you are looking for? > > Chris > > ________________________________________ > From: Pat Lockley [[log in to unmask]<mailto:[log in to unmask]>] > Sent: 18 March 2014 10:41 > To: [log in to unmask]<mailto:[log in to unmask]> > Subject: non-profit = non-commercial > > Hello all, > > Discussion in the other place led me to an sticking point with NC licenses > > If there was a site which sold - at cost price - physical copies of presently digital OER, say bound printed epubs or CDs / DVDs, and in the sale of these items made no profit (so was non-profit / > provident?) would you consider that commercial? > > Thinking is for people who don't have easy access to the internet this might prove a useful intermediary > > Pat > -- The Open University is incorporated by Royal Charter (RC 000391), an exempt charity in England & Wales and a charity registered in Scotland (SC 038302).