A recently-filed lawsuit may be forcing the re-evaluation of “NonCommercial” Creative Commons licenses, an aspect of the licensing system that has long been viewed as comparatively nebulous. For those unfamiliar, Creative Commons (CC) is a nonprofit organization that has, for over a decade, sought to make the often-complex world of licensing copyrighted materials a bit simpler. They have a series of pre-packaged licenses that provide copyright holders with an easy way to let others know how they are allowing their work to be used. Copyright holders may elect to release their work (for example) under a CC BY 4.0 license, meaning that anyone can use the work for any purpose so long as the original copyright holder is given appropriate credit and any changes from the original work are noted (the BY portion of the license). They may instead use a CC BY-NC-ND 4.0 license, meaning their work can be redistributed by anyone so long as appropriate credit is given (BY), but the material can’t be remixed, transformed, or changed (NoDerivatives, or ND), and the work cannot be used for commercial purposes (NonCommercial, or NC).
It is this last concept, “NonCommercial,” that is currently the subject of the aforementioned lawsuit. Those familiar with CC licensing have long been aware that the terminology used by CC when defining its NC licenses has been a bit vague. This was, to some extent, by design; CC’s guide to interpreting NC licenses states that their definition of a commercial use “is intent-based and intentionally flexible in recognition of the many possible factual situations and business models that may exist now or develop later.” Though there is usually no question as to whether a use is commercial or not (e.g. the use of a photograph as cover art for a popular novel is clearly commercial, while the use of a photo by a student in an essay for a class clearly is not), there are some cases when the answer is not so clear.
The educational nonprofit Great Minds feels that it has one such case. In a lawsuit filed by Great Minds in March of 2016, they argue that FedEx violated their intellectual property rights by reproducing materials released under a NonCommercial CC license. FedEx, they argue, is a commercial entity and is profiting off of the reproduction of Great Minds’ materials, hence violating the terms of the CC license. Great Minds caught wind that FedEx was making copies of their materials around October of 2015 in Michigan and contacted FedEx to negotiate a licensing agreement whereby FedEx would pay a fee to Great Minds. FedEx refused, arguing that the use was noncommercial because the reproductions had been made for nearby school districts who were not using the materials for profit.
In plain terms, Great Minds feels that FedEx should have to pay a fee each time one of their materials is copied. A decision in their favor would be a pretty significant blow for the CC licensing system, especially those falling under the NC licenses. It could open the door to a host of other unpleasant claims. Aren’t internet service providers profiting in some way every time a video released under a NC license is viewed online? Isn’t your email service netting some profit when you use their service to send an NC-licensed document to a colleague?
To be fair, CC has sought to ensure that their NC license does not break down in scenarios like those I’ve described above. The specific language of the NC license states that “NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.” and the guide linked to above points out that their use of the word “primary” in that definition is important. “The inclusion of ‘primarily’ in the definition recognizes that no activity is completely disconnected from commercial activity; it is only the primary purpose of the reuse that needs to be considered” (emphasis mine).
It is fairly obvious that, in both of the scenarios described above, the primary use is not a commercial one. That’s why the Great Minds lawsuit seems so backwards; the primary reason for copying their materials is to distribute these materials to students, a noncommercial use. The CC’s fuzzy language on what exactly constitutes a commercial use may have left the door open to this interpretation, though. It certainly seems now that the district court’s ruling on this matter, should the parties be unable to settle, will make the definition a bit sharper.
CC has recognized how important this ruling is for the future of its NC licenses and has asked to file an amicus brief which supports FedEx’s motion to dismiss the lawsuit. They go so far as to say that Great Minds’ interpretation “is emphatically not how Creative Commons NonCommercial licenses were designed to work,” and hope to have the opportunity to argue why that interpretation is incorrect. It is also clear from the language of the request that CC knows the fate of its NC licenses hang in the balance:
The point of Creative Commons licenses is to be useful tools that facilitate creative, socially constructive activity. […] The artificial distinction drawn by Great Minds […] would, if applied more broadly, preclude the use of most or all standard channels of dissemination and render the licenses all but useless. It would force users to choose between owning the entire chain of production or distribution, and leaving a trail of actionable copyright infringements in their wake.
It would disrupt the settled expectations of innumerable users and creators of works governed by CC BY-NC-SA 4.0 licenses around the globe. And it would substantially diminish the utility of a license that enables the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world.
Rest easy, everyone. You can perform your stunning rendition of the Happy Birthday song without paying royalties!
Questions about Copyright?
February 23-27, 2015 is Fair Use Week!
Can I make a copy of this article?
May I share this material with my class?
Will posting this work to Blackboard violate copyright?
“Fair Use Week is an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate success stories, and explain these doctrines.”
Fair use doctrines permit limited use of copyrighted materials without acquiring permission from the copyright holders.
The Wayne State University Library System offers a number of helpful resources to help you answer your copyright and fair use questions.
Did you know we have a Copyright Decision Tree to help you stay copyright compliant?
We also offer an Interactive Fair Use Checklist to help you determine whether or not your use is “fair”.
Are you an instructor who would like some assistance providing full-text access to materials for your class? Use our Permalink Request Form.
For more information, please visit copyright.wayne.edu.
You may be familiar with the Georgia State University e-reserves copyright case, ruled on by Judge Evans in the Northern District of Georgia on May 11, 2012.
To refresh: a number of publishers – including Oxford, Cambridge, and Sage, funded largely by the Copyright Clearance Center – brought the suit against Georgia State University claiming the university engaged in “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” through its e-reserves system.
Judge Evans ruling in the case was widely considered a victory for libraries, as she found copyright infringement in only five of the 99 specific readings challenged in the case.
As you may expect, the case has been in appeal since that time.
On October 17, 2014, the Eleventh Circuit Court of Appeals issued its ruling, reversing the District Court’s judgment and remanding the case back for proceedings in light of the Court of Appeals ruling.
Concerning Judge Evans’ original analysis, the Appeals Court found errors in her interpretation of the second and third fair use factors. To summarize, she cannot presume all of the works in question are “informational” and a case-by-case evaluation is necessary. Furthermore, her ruling that a firm 10% or one chapter was fair use was considered too rigid by the Appeals Court. The Appeals ruling also informed Judge Evans to give more weight to the fourth factor – concerning market harm.
As an instructor at Wayne State, linking to resources owned/subscribed to by the library system is a surefire way to ensure copyright-compliance in your instruction. Would you like help creating permalinks to library resources in Blackboard? The Libraries can help! Submit a Permalink Request Form here: http://library.wayne.edu/forms/persistent_link_request.php
February 24-28 is Fair Use Week!
With efforts from the Association of Research Libraries (ARL) and The Scholarly Publishing and Academic Resources Coalition (SPARC), Harvard University is the “beta” site for the first annual Fair Use Week.
Here is what they have planned:
- Monday, 2/24: Krista Cox (ARL Director of Public Policy Initiatives) guest blogs
- Tuesday, 2/25: Kevin Smith (Director of Copyright and Scholarly Communication at Duke) guest blogs
- Wednesday, 2/26: Kenneth Crews (Director of the Copyright Advisory Office at Columbia) guest blogs
- Thursday, 2/27: Harvard Law Professor Terry Fisher’s new fair use CopyrightX video will be featured on the blog
- Friday, 2/28: Fair Use Week Panel at 2:30 in the Lamont Forum Room, featuring Andy Sellers (Harvard’s Berkman Center), Ann Whiteside (Harvard’s Graduate School of Design), Laura Quilter (UMass Amherst), and Ellen Duranceau (MIT)
There has been a lot of talk recently about the Trans-Pacific Partnership and the copyright provisions in the agreement.
Yesterday, after eight years of litigation, the U.S. District Court for the Southern District of New York dismissed the Authors Guild v. Google case, ruling that Google’s scanning of over 20 million copyright-protected books is within fair use.
For more in depth analysis of the case, see the blog post of Dr. Kenneth Crews, Director of Columbia University’s Copyright Advisory Office.
The Association of College & Research Libraries (ACRL) released an ACRL Insider update which details the Library Copyright Alliance’s work in this case, including the amicus brief they filed, and the importance of this case to education, research, and libraries.
For more information on Fair Use, including our Interactive Fair Use Checklist, please see http://copyright.wayne.edu.
In January 2012, the Association of Research Libraries (ARL) published the “Code of Best Practices in Fair Use for Academic and Research Libraries.” This code is “a clear and easy-to-use statement of fair and reasonable approaches to fair use developed by and for librarians who support academic inquiry and higher education”.
Very recently, the ARL, along with American University’s (AU) Washington College of Law, and AU’s School of Communication, issued an infographic entitled “The Good News about Library Fair Use.” This infographic is a useful and informative graphical presentation of the basic case for fair use, best practices, and the Code mentioned above.
You can access the infographic in various formats here.
Do you have copyright questions? Do you want to make sure the materials you are using in your research and instruction are copyright compliant? What is considered “fair use”? What materials are in the “public domain”?
Welcome to Copyright@WSULS. We can help you answer these questions and assist you in staying copyright compliant.
Aside from basic copyright information, we have a couple of useful tools for you to use.
- Copyright Decision Tree: A helpful step-by-step decision tree to provide you with guidance in using desired materials in your instruction
- Fair Use Checklist: An interactive checklist that will help you determine whether or not your intended use leans towards “fair”
You can also reach us at firstname.lastname@example.org with specific copyright questions or concerns you may have.