German Court Says Creative Commons 'Non-Commercial' Licenses Must Be Purely For Personal Use

from the YMMV dept

Thu, Mar 27th 2014 10:03am — Glyn Moody

Creative Commons licenses have been hugely successful in allowing people to share their creations in ways otherwise impossible using traditional copyright monopolies. But one problem remains unresolved: what exactly does the "non-commercial" license allow you to do? This lack of clarity has led various people to advocate avoiding the use of CC-NC. Back in 2012, Techdirt reported on a call to drop completely both the non-commercial and the no-derivatives licenses. In the same year, a group of German copyright experts released in collaboration with Wikimedia a document entitled "Consequences, Risks, and side-effects of the license module Non-Commercial -- NC", which was made available in an English translation the following year (PDF).

Now a German court has weighed in on the subject, with interesting results (original in German.) The case concerned the use of a photo from Flickr, released under a CC-BY-NC license. The photo appeared on the Web site of Deutschlandradio, part of the German public broadcaster -- a non-commercial organization, that is. Alongside the photo, Deutschlandradio's Web site included the name of the artist, the license, and a link to its terms. Despite this, the photographer demanded 310 Euros plus costs on the grounds that Deutschlandradio had used the photo for commercial purposes.

The public broadcaster pointed out that there was no charge for its Web site, there was no advertising, and no sponsorship. Nonetheless, the judge agreed it should be treated as a commercial use. In coming to this view, the judge drew on German law, which defined "non-commercial" as purely for personal use, and excluded all commercial use in the "generally accepted sense", and that apparently included radio stations, irrespective of how they were funded.

As this underlines, quite what "non-commercial" means is likely to vary from country to country, and possibly even judge to judge. Yet another reason to avoid using CC-BY-NC altogether.

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Filed Under: copyright, creative commons, germany, non-commercial, personal use

36 Comments

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Anonymous Coward, 27 Mar 2014 @ 10:09am

Alternatively, it's a reason to avoid exposing yourself to German IP law.
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- Anonymous Coward, 27 Mar 2014 @ 10:45am
  
  Re:
  CC-NDE?
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ChurchHatesTucker (profile), 27 Mar 2014 @ 10:22am

Version?
Does it mention which version of the license it was? I thought more recent ones were supposed to address these kinds of things. Or is it just an impossible concept to implement under German law?
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- Techanon, 27 Mar 2014 @ 11:09pm
  
  Re: Version?
  You're right, CC-BY-NC 4.0 includes a definition of "NonComercial".
  
  Quote from the CC legalcode:
  "NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange."
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- Techanon, 28 Mar 2014 @ 2:47am
  
  Re: Version?
  The original article (in german) mentions cc-by-no 2.0 which doesn't have a definition of NonComercial.
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TG, 27 Mar 2014 @ 10:28am

There's only one CC 'license' worth using and that's CC0.
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Bengie, 27 Mar 2014 @ 10:29am

what?
If they wanted "non-commercial" to mean "personal", they would have just used the word "personal"
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- Anonymous Coward, 27 Mar 2014 @ 11:07am
  
  Re: what?
  Changing the meaning of stuff is how people in power get their way. Stupid people like you and me do nothing about it. Soon, no one knows any better because it has been allowed to be redefined. I have a good job and a nice living. Not giving that up for the rest of the yahoos, therefore nothing with change.
  
  I am part of the problem, so are you, but the biggest problem is the electorate being low information to nothing more than partyline voters... to hell with any form of integrity so long as we get our way.
  
  To most... the end, does in fact, justify the means!
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- TKnarr (profile), 27 Mar 2014 @ 12:43pm
  
  Re: what?
  Thing is, in legal terms words don't mean just what you want them to mean. That's what the court noted here: the license used the term "non-commercial", and in German law that term is defined to mean "personal". If you want to use the term "non-commercial" in your license in Germany and want it to mean something other than what German law says it means, you need to provide a specific definition for it in your license and say that whenever you use this term it refers to your definition.
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Scote, 27 Mar 2014 @ 10:38am

So, is a "personal" blog on the WWW also "commercial"?
Seems to me that thanks to the internet "personal" use isn't that specific anymore. Broadcasting world wide via the internet could make all sort of personal use "commercial", including on your blog, or on FB, which is ad supported. This is a terrible ruling, sought by, IMO, a terrible photographer who shouldn't have use the non-commercial CC license if he was just going to be an ass about it.
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- Chronno S. Trigger (profile), 27 Mar 2014 @ 11:22am
  
  Re: So, is a "personal" blog on the WWW also "commercial"?
  The reason he probably went for Creative Commons instead of regular copyright is because getting a CC registered is free.
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  - G Thompson (profile), 27 Mar 2014 @ 8:22pm
    
    Re: Re: So, is a "personal" blog on the WWW also "commercial"?
    probably not since 'Registration' of a copyright is automatic and not needed most laces in thew world if you intend to take action under that copyright. Only America does it really require physical and separate registration of the work for statutory or otherwise damages to be obtained
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    - G Thompson (profile), 27 Mar 2014 @ 8:22pm
      
      Re: Re: Re: So, is a "personal" blog on the WWW also "commercial"?
      *laces= places
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Ninja (profile), 27 Mar 2014 @ 12:09pm

Now correct me if I'm wrong but shouldn't creators be free to choose whatever copyright system or license they want? What's a fucking court doing forcing them out of a choice?
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- Anonymous Coward, 27 Mar 2014 @ 4:40pm
  
  Re:
  Isn't the court siding with the creator here?
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  - Ninja (profile), 28 Mar 2014 @ 2:50am
    
    Re: Re:
    It may seem so but they are undermining the NC clause by restricting it to purely personal use they are stripping it from its main benefit (allow wide use and thus exposure).
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- nasch (profile), 28 Mar 2014 @ 12:32pm
  
  Re:
  Now correct me if I'm wrong but shouldn't creators be free to choose whatever copyright system or license they want? What's a fucking court doing forcing them out of a choice?
  
  The court is saying that this is what that license (that the artist chose) means in Germany.
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Ima Fish (profile), 27 Mar 2014 @ 12:58pm

Can someone explain why Creative Commons doesn't simply define the phrase itself? It seems idiotic to create a license without defining important terms in the license.
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- John Fenderson (profile), 27 Mar 2014 @ 1:56pm
  
  Re:
  In the US, "noncommercial" is already well defined in law. This mistake seems to be a translation error or a misunderstanding. Perhaps the lawyer who vetted the German version of this didn't fully understand that the use on "noncommercial" was not intended to be synonymous with "personal".
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  - PaulT (profile), 28 Mar 2014 @ 1:53am
    
    Re: Re:
    I'd also guess that there's some kind of order of precedent. That is, you probably can't define terms to mean whatever you want in a licence if there's already a legally established definition in current law. The established definition would take precedent over the licence, else what would there be to stop unscrupulous companies from redefining all sorts of basic rights?
    
    IANAL, etc., but that's the way I presume it would happen.
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  - btrussell (profile), 28 Mar 2014 @ 2:17am
    
    Re: Re:
    "In the US, "noncommercial" is already well defined in law. This mistake seems to be a translation error or a misunderstanding."
    
    Maybe the rest of the world doesn't agree with USA definitions?
    
    Maybe something can be non-commercial and non-personal at the same time?
    
    Personal use means just yourself doesn't it? If you have a medical marijuana license, I assume they are for personal use like other prescriptions, does that mean you can share with your friends and your license covers their use as well?
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- R.H. (profile), 28 Mar 2014 @ 6:49am
  
  Re:
  They have in more recent versions of the license. Techanon quotes it in reply to comment #2 above.
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Ole Juul (profile), 27 Mar 2014 @ 1:16pm

I have a local radio station which is for personal use. It only covers about a block, and I doubt anybody else listens. The thing is that commercial vs. personal is a very wide area. I assume that the judge would think that the court was commercial since he's probably getting paid and making money at this. Sure, that sounds silly, but is there some confusion between "commercial" and "public" in this ruling?
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Arthur (profile), 27 Mar 2014 @ 1:56pm

Public broadcaster
I dunno about German public broadcasters, but if it's anything like the US, they do air commercials - i.e. "Sponsored by Acme Furniture, where to go to buy your best furniture" - because they are paid to do that.

Sure, these commericals are, thankfully, much shorter and less obnoxious, but still, the basics are there. The radio station makes a lot of their money from these "mini commercials".
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- vka, 28 Mar 2014 @ 3:39am
  
  Re: Public broadcaster
  Deutschlandradio is commercial free but you have to pay a kind of tax which goes to all german public broadcasters
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- Donglebert The Needlessly Unready, 28 Mar 2014 @ 4:00am
  
  Re: Public broadcaster
  I don't believe they have any adverts outside publicising their own shows. They don't have sponsorship either.
  
  Much like the BBC.
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Zonker, 27 Mar 2014 @ 3:38pm

So in German legal language "non-commercial" literally means "commercial" when it's not personal use, just like how in American English the word "literally" means "figuratively" when it's used as hyperbole.
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- techflaws (profile), 27 Mar 2014 @ 11:19pm
  
  Re:
  This is also how they bust file shares cause since they get their media free and don't pay for it, they gain a commercial benefit for themselves. Rightsholder love German courts, especially the one in Cologne.
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toyotabedzrock (profile), 27 Mar 2014 @ 8:09pm

Obviously there needs to be more work done to explain what is non commercial in each jurisdiction. I prefer they keep the NC.
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Ole Juul (profile), 28 Mar 2014 @ 2:22am

Could it be that the license just needs to be translated into German?
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ZachOfAllTrades (profile), 28 Mar 2014 @ 8:35am

WHO should avoid it ?
It seems clear that the German court in this particular case has made a bad decision regarding the meaning of 'non-commercial'. But what seems to be missing from the conversation is clarity of perspective when considering the value of the CC-NC license.
From the perspective of noncommercial website owners that use CC-NC content, the court decision is especially bad. They have basically been told that they must avoid (or remove) CC-NC content, or risk being sued for infringement.
From the perspective of content creators that make their work available, the decision is not so bad -- on the one hand, they can be confident (in Germany anyway) that the license has some teeth to it if they want to pursue an infringement case; but on the other hand, they may find that the distribution of their work that they may have hoped for will now be reduced due to noncommercial site owners fear of using work with that license.
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Epicanis, 29 Mar 2014 @ 9:29am

Isn't NC usually redundant/unnecessary?
I've only asked a couple of people so far, but it seems like people just reflexively click "non-commercial" purely to prevent someone from "selling the work as their own", without intending any of the other restrictions that come as a side-effect (e.g. a business like a restaurant otherwise complying with the license but playing a CC-BY-NC piece of music, which counts as a "public performance" by a profit-making enterprise, hence "commercial").

Shouldn't the Attribution and Share-Alike clauses deter the abuses that people are assuming the NC clause is for (i.e. if you have to give credit and can't monopolize the work, it's less convenient to "sell" copies purely for profit to begin with, and I can't think of many cases where someone would be stopped by the NC clause who wouldn't already be put off by the BY and SA clauses to begin with)?
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Anonymous Coward, 29 Mar 2014 @ 11:20am

It is no judge's business. Creative Commons is a private contract between two parties (one who gives and one who receives).

But wait, it comes from country and judiciary which "leagalized" gas chambers.
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- nasch (profile), 29 Mar 2014 @ 11:54am
  
  Re:
  It is no judge's business. Creative Commons is a private contract between two parties (one who gives and one who receives).
  
  Until the two parties disagree about what the contract means, and then it can become a judge's business. That's what happened here.
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anonnymouse, 30 Mar 2014 @ 12:51pm

Or you could just accept that IP is an area of law with shades of grey and you can't hammer it down. I would be happy to use the NC licence, and I agree with the judge's approach here. I think any organisation using NC material should contact the owner of the material and ask.
This isn't a reason to get rid of NC.
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Simone Aliprandi, 14 Apr 2014 @ 6:08am

it's not specifically about "non commercial"
Dear Glyn, I agree that the Non Commercial clause is problematic... but I don't agree with the overall intepretation you give for the case. The German judge does not specifically talk about "non commercial". Here my two cents (Italian only): http://aliprandi.blogspot.com/2014/04/tot-licentiae-tot-sententiae-autore-ragione.html
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