Defining “non-commercial” and the trouble with Creative Commons

Recently photographer Lane Hartwell started a bit of a dust up by going all legal on someone using her photos inappropriately. I don’t want to rehash well covered ground, but I have appreciated the conversation about photography and rights and specifically Creative Commons licensing. If choose a CC license that doesn’t allow “non-commercial”, the simple license simply states: “You may not use this work for commercial purposes.”

As Gordon Haff smartly points out:

At first blush, this seems intuitively fair and reasonable. Many of my own photographs on Flickr are licensed under a noncommercial Creative Commons license. It just feels right. Sure, you can use one of my photos on your Web site (with proper attribution, as required). But I can’t say that I’d be especially thrilled to learn that someone was off hawking my pics on a microstock site or selling posters without giving me anything back. Thus I, like many, chose a noncommercial license.

Ditto for me on Flickr. Certainly the full legal code behind the CC non-commercial attribute is pretty clear (emphasis mine):

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

The term “commercial advantage” pretty much ends that discussion, right? Wrong. What would you, as a content creator consider “commercial advantage”? Let’s set aside the legal definition discussion for a second and look at what you’re specifically trying to do: express your intent. After all, that’s the core purpose of CC, no? Consider these scenarios that Gordon mentions:

  • What if I have some AdSense advertising on my Web page or blog?
  • What if I use the photo in an internal company presentation? (The question that started me on this quest)
  • What if I’m using those photos as “incidental” illustrative content in a presentation I’m being paid to give?

What the current licenses basically says is that there is no distinction between these two potential scenarios:

  • A company downloads a photo from Flickr at full resolution and sends it to a printer. 1 million copies are printed and mounted and delivered to Wal-Mart where they are sold for $50 a piece.
  • An independent consultant downloads a Flickr photo for inclusion in a blog entry. He doesn’t make money off the blog, but he leverages his blogging to show clients that he knows the business.

I seriously doubt many people who’ve chosen the CC non-commercial license would be that concerned about the latter but are specifically attempting to avoid the former. When I brought this up on the CC email list I was chastised for attempting to “fragment the system” , that if CC added two flavors of non-commercial that they would have to start adding variations for every potential possibility. Bull.

Scott raises the same issue (emphasis mine):

I know what you’re thinking: “But you can choose a noncommercial use license to protect yourself from this.” Sure you can, if:

1. You are informed enough to make the correct license choice;
2. The publisher of your photo is informed enough to know the differences among the various licenses; and
3. You, the publisher and the rest of the world can all agree on what “noncommercial use” actually means.

While point #3 is the crucial one, point #1 misses the point: the “correct license” doesn’t exist!

Clearly from the amount of discussion around this topic, the CC non-commercial license is failing, in far too many cases, to properly help content creators express intent. Adding additional attributes to the CC framework should be highly considered, but never ruled out. In this instance, the case for creating two flavors of CC-noncommercial seems clear.

What do you think? Do you use Creative Commons for your content? If so, how do you feel about “commercial advantage”?