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.

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

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  1. icon
    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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