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

from the YMMV dept

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.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

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

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Techanon says:

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.”

Anonymous Coward says:

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!

TKnarr (profile) says:

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.

Scote (profile) says:

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.

G Thompson (profile) says:

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

PaulT (profile) says:

Re: 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.

btrussell (profile) says:

Re: 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?

Ole Juul (profile) says:

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?

Arthur says:

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”.

ZachOfAllTrades (profile) says:

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.

Epicanis (user link) says:

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)?

Simone Aliprandi (user link) says:

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):

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