Brian Chau is a JD candidate at Osgoode Hall Law School.

Where do we draw the line between commercial and non-commercial uses? Is this view the same across content creators and users?

A quick background

Creative commons licences are designed to help content creators (who own the copyright) communicate to their users which rights they have reserved, and which rights they provide to the users. (You can create your own licence here). These licences provide users with a ‘core right’ to redistribute works for non-commercial purposes without modification.

Given the costs of obtaining and granting permissions is beyond reach for the general public, creative commons has created a set of 6 licences that provide various rights and restrictions in standardized legalese. To date, CC estimates that these licences are attached to over 250 million web pages and creative works.

It’s a tempting compromise simplifying the struggle between the desire to adhere to arcane copyright laws and the desire to share. As such, these licences have become wildly popular in the online community - but they also raise several sticky questions:

(1) What exactly constitutes a ‘commercial’ usage?

(2) Is it enough to simply state that a ‘commercial usage’ is defined as anywhere profits are made?

(3) Can different usages be ‘more’ or ‘less’ commercial than others?

The report

A report was commissioned by Creative Commons to answer this question from the perspectives of both online content creators and users. The study consisted of a questionnaire with a two pronged approach:

• An empirical study of the U.S. population
• A less rigorous study of the broader international online population

The report's significance is that these findings will contribute to the next revision cycle for the six main creative common licences.

The questionnaire itself asked respondents a set of situational questions and asked them to rate on a scale of 1 to 100 – where 1 was not commercial at all, and 100 was totally commercial.

Key findings

There is a general agreement among creators and users regarding the overall definition of commercial, stated in the questionnaire as “…primarily intended or directed toward commercial advantage or private monetary compensation”.  I believe this definition is simply a broad restatement the most obvious tenets of the definition, so there isn’t much of a surprise that there is relative consensus among all parties.

However, there are interesting findings that came up on the more specific use cases where context played a role. Where the uses were for cost recovery or non-profits, a variance occurred between content creators and users. What I found noteworthy was that in many of these situations, content users had a stronger belief than content creators that these uses were in fact more commercial. Is this an indication that the growing awareness of the legal issues is coming to a point where, in some cases, users are more worried about infringement than they ought to be?

For the cases cited above, it is also important to note that these tended to push responses towards the 40-60 range – which essentially is the non-commercial / commercial gray zone. To me, it seems that from a preliminary perspective, the existing creative commons licences are not providing enough clarity in these areas. But a case for the primary objective of creative commons needs to be made here as well – how many situations should the creative commons licence account for before it itself becomes too narrow and thus confusing for the user?

I’m a huge proponent for the creative commons team – they’ve done a fantastic job in helping maintain that cybercitizens have good, legal sharing options available to them. In my opinion, the best approach to helping solve this quandary would be to keep the existing main licences – and add a secondary layer for content creators. The initial secondary layers should be focused on the areas cited in the report as being most ambiguous. That way the creators would have a means to communicate how they wish to deal with special circumstances, rather than leaving it open to interpretation (and potentially misinterpretation) by all parties.

Please feel free to provide your comments and thoughts on this - I'm sure there will be plenty more room for debate as new revenue and distribution models arise in the coming years.