Does a non-commercial license like CC BY-NC-SA 4.0 preclude a work to be sold for money?

Question

If a work is published under, e.g. CC BY-NC-SA 4.0, does this mean the work or one of its (appropriately licensed) derivatives can never be sold in a physical medium, even if the price asked for it:

1. merely covers the production costs?
2. covers the production costs plus some amount that will be donated to some sort of charity?

Assume all derivatives are also provided free of charge in a suitable electronic format (does this even matter?).

I have tried to find an answer from CC, but this doesn't seem to be spelled out anywhere, including their wiki.

Answer 1

All of this is entirely unclear. The NonCommercial clause is intent-based, and relies on a concept of ”commercial advantage“ that is not further defined.

Arguably, a NC-licensed work can be provided free of charge but still for a commercial purpose, e.g. if a CC-BY-NC-SA licensed photograph is used on an advertisement.

That the covered work is also available electronically free of charge is not relevant, since here the physical/non-electronic use also has to comply with the license. The NonCommercial clause doesn't require that the covered work is available in a non-commercial context, but that any reproduction or sharing is only done for NonCommercial purposes.

There is however some flexibility in the definition of NonCommercial. It means “not primarily intended for or directed towards commercial advantage or monetary compensation” (emphasis mine). In particular, a for-profit business can use material under the NonCommercial clause even though it might have an indirect commercial advantage from this use.

I would think that it is acceptable to sell NonCommercial works at cost. Since there is no profit, there would likely be no commercial advantage. While there would be a monetary compensation involved, the goal of an at-cost sale is not to make money.

Fundraising for charity is very likely NonCommercial. The CC-BY-NC-SA doesn't prevent payment, it just prevents commercial purposes.

But again: all of this is entirely unclear. Uses that are not obviously allowed by the license carry some risk. If the work in question only has a single copyright holder, it may be feasible to ask them for explicit permission.

This difficulty in establishing what is and isn't commercial is part of the issue why there are no good “open-source but not for certain purposes” licenses. Instead, truly open licenses (like CC-BY-SA) do not discriminate against any field of use. Even when restrictions like a NonCommercial clause are well-intentioned, they tend to create legal uncertainty and will likely have the effect of excluding some uses that the licensor intended to allow.