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Legal Details of NonCommercial Creative Commons Licencing
The NonCommercial (“NC”) element is found in three of the six CC licenses: BY-NC, BY-NC-SA, and BY-NC-ND. In each of these licenses, NonCommercial is expressly defined as follows:
"NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.
The definition is intent-based and intentionally flexible in recognition of the many possible factual situations and business models that may exist now or develop later. Clear-cut rules exist even though there may be gray areas, and debates have ensued over its interpretation. In practice, the number of actual conflicts between licensors and licensees over its meaning appear to be few.
This page sets forth fundamentals of how the definition of NonCommercial operates and should be interpreted from CC’s perspective as the steward of the CC license suite. We provide some key points to consider before choosing an NC license for your own work or before using an NC-licensed work.The NonCommercial limitation applies to licensed uses only and does not restrict use by the licensor.
As with all CC licenses, the NC licenses only restrict what a reuser may do under the license and not what the licensor (rights holder) can do. Licensors that make their works available under an NC license are always free to monetize their works.
NonCommercial turns on the use, not the identity of the reuser.
The definition of NonCommercial depends on the primary purpose for which the work is used, not on the category or class of reuser.  Specifically, a reuser need not be in education, in government, an individual, or a recognized charity/nonprofit in the relevant jurisdiction in order to use an NC-licensed work. A reuser that is not obviously noncommercial in nature may use NC-licensed content if its use is NonCommercial in accordance with the definition. The context and purpose of the use is relevant when making the determination, but no class of reuser is per se permitted or excluded from using an NC-licensed work.
Reusers may make NonCommercial uses only, even when reusing NC material with other works.
The NC licenses limit reusers to NonCommercial uses of the work only, which includes when the work is used in a collection or when it is adapted. For example, an NC essay may not be included as part of a collection in a commercially distributed book of essays, even if it is only a small portion of the book. For an example of an adaptation, an NC song may be used as the basis for a video where the visual elements are under a different license such as the BY license. When the music video is distributed as a whole, it may not be used commercially because of the NC license of the song.
The NonCommercial term does not limit uses otherwise allowed by limitations and exceptions to copyright.
Nothing in the NC licenses (or any CC license) controls or conditions uses—even commercial uses—covered by an exception or limitation to copyright or similar rights, or otherwise controls any activity for which no permission under such rights is required. For example, a person may commercially use an NC-licensed work for purposes of criticism in jurisdictions where this is a fair use or otherwise covered by an exception to copyright. Similarly, because posting a link to a work does not require permission under copyright, a for-profit university may still include a link to NC-licensed courseware in a syllabus or on its paywalled website. In such cases, the CC license never comes into play and the NC restriction (and other limitations or conditions contained in the license) may be disregarded.
Explanations of NC do not modify the CC license.
Some licensors or website providers state expectations or interpretations about what NC means. Those explanations never form part of the CC license, even if included in terms of service or another resource designed to contractually bind reusers. CC strongly discourages the practice when such statements carve back (rather than expand) on reuses allowed by the NC definition or contradict the plain meaning of the licenses. When those statements are intended to bind reusers or to modify the CC license, no CC trademarks may be associated with either the work or the terms under which it is offered. For more information about CC’s license modification policy, visit this page.
NonCommercial licenses are non-exclusive.
Like all CC licenses, the NC licenses are non-exclusive. This means that an NC licensor is free to offer the material under other terms, including on commercial terms. A frequently discussed use case for the NC licenses is a creator who wishes to allow NonCommercial use but also authorizes commercial uses in exchange for payment. (Additional permissions such as this may always be offered; licensors may also use our CC+ protocol to offer these in a standardized manner.) Also, licensees are always free to contact licensors to ask permission to use the work for commercial purposes.
For a given work, permitted NC uses may still be restricted due to non-copyright rights.
Even if a use is NonCommercial for purposes of the CC license, it may still not be permitted because of other rights that prevent that particular use of the work. For example, a use that is otherwise NonCommercial could violate the publicity or personality rights of an individual featured in the work.