Update: Mia Garlick, Creative Commons’ General Counsel sent me an email saying she started a Discussion Draft – NonCommercial Guidelines and would like for others to join in. Thanks Mia.
What does the Creative Commons “NonCommercial†license mean? It seems I’m not the only one confused.
Pictured here is the ceiling of a Washington, DC subway/metro station. I took this photo last year while traveling on business. The photo resides within Flickr and is enjoying an Attribution-NonCommercial-ShareAlike licence.
This week, many Flickr photographers received an email from Schmap, a start-up that will soon offer destination guides. Schmap’s email stated my photo was short-listed for inclusion in an upcoming guide, and gave me an option to submit or withdraw my photo from their final selection phase.
So they were nice enough to ask. They didn’t have to ask, since my photo has a Creative Commons license — or did they?
The question at hand is, “Is Schmap considered commercial or noncommercial?” Well, they don’t even know.
Their website said, “The creative commons license that you’ve assigned your photo(s) provides for non-commerical use. While all of our Schmap destination guides will be FREE to download, some photographers might nevertheless consider these to be commercial (advertising revenue will support free distribution to our readers).” And then some Terms of Submission followed.
Since they didn’t know, Schmap decided to play it safe by treating my image more like it was protected by copyright and that I was agreeing to a new terms of use by granting them certain permissions.
Three out of Creative Commons’ six licenses restrict the licensed content from commerical use, which reads “Noncommercial. You may not use this work for commercial purposes.”
Creative Commons fails to better define what Commercial means. Does it mean people pay for a content or service directly? What if the content or service is subsidized through advertising? And how about nonprofits, are they commerical entities or not?
I don’t know these answers and perhaps neither does Schmap, which is why they asked.
Having read the draft CC guidelines on non-commercial use (you have to click through until you get to the PDF), it still seems a bit grey. What does “in connection with” mean?
I’m taking the scope of that to be “pertaining to the whole project”. Others may confine themselves to the particular “supplier” transaction revolving around the CC-licenced work itself, or to the transaction involving the end-user. I think the latter is what Schmap are hoping.
Photographers providing elements of a guidebook don’t always get paid highly. Thousands queue up to get into Lonely Planet books, and I think all you get is another guidebook, and none of your image rights.
In the commercial world, suppliers of many OEM components don’t always benefit from the whole-product value chain either, or influence it very much (unless you are Intel), so it’s on the face of it a bold posture to expect all the terms of your contract to be exactly duplicated further along the chain, and for this to propagate to the entire product.
Like GPL components of Sun’s software, you can require, if you choose, that your OEM component (i.e. your photo) be incorporated in another work without your work being inaccessible as a result. But you would have to be Intel-strength-critical to the success of that product to require that the whole product be placed in the commons.
My feeling is that Schmap does intend to make a profit. If not immediately, then later on. Use of the creative commons photos is a cost saving measure during their startup. Their contract seems to supersede the standard creative commons license in that it allows them to use the photos at any time in the future, regardless of the extent of ad revenue or change in download policy. This certainly seems to be a wise business approach given the extensive database of travel photographs on the Flickr site, although not all are CC. I wonder how many all rights reserved photos are short listed?