Can I charge expenses for a work under CC BY-NC-SA?

Question

I have a 3d printer that I use to print some models. There is a model I like that is licensed in Creative Commons under the Attribution - Non-Commercial - Share Alike license.

I am not sure what "Commercial purposes" are.

My questions are:

• Can I sell it? (I guess the answer is no)
• If someone wants me to print a model for them, can I charge the expenses I have (material, post charges)?
• Can I contact the owner to agree a deal to sell it? Will he be able to grant me permission to sell or he has lost the control?

Answer 1

The CC NC clause is really hard to get a grasp on, and Creative Commons do not provide much guidance about it.

There certainly exists a lot of examples where it is not possible to give a straightforward about exactly what is commercial use. For an example of such a situation, see my answer to this question: Using CC-NC material inside a freemium app.

That being said, I don't see why there is a need to cop out of every question about the NC clause by simply saying that it isn't clear.

Sometimes it possible to give a straightforward answer. Then we should.

AFAIK, there is almost no case law about the NC clause. This means that it isn't often contested. In most cases, people are able to figure out if it applies or not, and do the right thing.

This question is one where I think it is reasonable to provide a straight answer.

The legal code defines "Non-Commercial" as:

not primarily intended for or directed towards commercial advantage or monetary compensation

That means that you cannot sell it for an amount of money that will make you a profit.

As for someone asking you to print a model, you can obviously get compensated for your direct outlay in materials, but if you make a profit by providing this service, you're breaking the license.

Until October 2008, the CC FAQ provided a much more detailed guidance on how to understand the "NC" clause than the present, deliberately vague FAQ, does.

The old FAQ discussed a scenario where a commercial print copy shop were charging the commercial rate for the service of making copies of some materials licensed under CC BY-NC, and concluded that this was not allowed. However, if a commercial print shop agreed to just charging its own costs for the same operation, then it would be OK.

While this specific example has since been removed from the CC FAQ, I think it still applies.

As for the owner allowing you to sell it: Yes. CC is not an exclusive license. As with all CC licenses, can always ask copyright owners for an alternative licensing arrangement.

Answer 2

One of the problems with CC NC is that when you say "I am not sure what "Commercial purposes" are", you are not alone in that.

The relevant clause in CC BY-NC 3.0 reads

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

The definition of NonCommercial in CC BY-NC 4.0 is

NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation

What that means exactly is not very clear, and opinions differ on whether something is commercial use or not - and a whole lot of discussion about it has not produced much, if any, clarification on the matter.

Creative Commons commissioned a study to what exactly the NC clause in their license means in 2008, see https://wiki.creativecommons.org/wiki/Defining_Noncommercial and http://creativecommons.org/weblog/entry/17127 which found that opinions on what exactly is commercial use differ significantly.

For example, it is generally thought that use of CC NC materials is not allowed on websites that are supported by advertisements, even if those advertisements are only intended to cover the running cost of the website. The study cited above found that

On a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial” creators and users (84.6 and 82.6, respectively) both rate uses in connection with online advertising generally as “commercial.” However, more specific use cases revealed that many interpretations are fact-specific. For example, creators and users gave the specific use case “not-for-profit organization uses work on its site, organization makes enough money from ads to cover hosting costs” ratings of 59.2 and 71.7, respectively.

When you want to sell it, or receive a compensation for the materials (and power) used, one of the findings of the report is that

virtually all creators agree that a noncommercial use is one in which “no money changes hands.”

When looking at the question where "money would be made from the work, but only enough to cover the costs", which seems to be your scenario, roughly 60% of users considers this "definitely commercial" (about 10% "definitely noncommercial, and the rest "can't say"), and about 45% of creators considers it "definitely commercial" (vs ~20% definitely non-commercial and the rest "can't say")

If the copyright holder believes your use is commercial, it's up to the court to decide whether it is or not, creating a legal hazard.

You can always contact the owner to make a separate deal that is not covered by the license, or discuss (and put in writing) whether they consider your use commercial purposes.

Answer 3

If someone asks you to print the model then you are likely in the clear. The 2nd and 9th circuit courts have decided that a non-commercial entity can contract a for profit entity to make their copy, and as long as the entity doing the copying is working within their normal parameters, they are not using the work commercially.

So you definitely can't sell copies (that you printed with the intent to sell), and you probably can't advertise it's availability (just a feeling that advertising prints of the models is using them commercially).

But if someone says "I'd like this model, can you print it for me, it's CC-NC-SA" as long as you charge the same time and materials you'd charge for somebody trying to get their own self designed model printed, you are free to do so.

If the owner used someone else's CC-NC-SA piece as a starting point, they cannot change the license, but if it is their original work, than they can.

Sorry to reply to an old thread, but I was looking for similar information and stumbled across this (both referenced cases are newer than the answers, so I figured it was relevant to add):

https://creativecommons.org/2020/01/07/u-s-appellate-court-enforces-ccs-interpretation-of-noncommercial/

Answer 4

Transforming medium (CD→MP3, PDF→paper, 3D-file→physical, etc) doesn't change the copyright state so that does affect you directly if you want to sell the printings of the model directly.

I'd suggest staying well away from the non-commercial definition nonsense. There madness lies. Be a service provider. What most people in this space do is lease their printers. Charge for the time, materials, finishing, postage, etc and the client takes responsibility for licensing. And you can be as unreasonable as you like. You can profit from your resources.

Now, there's clearly overlap there. If you can freely give somebody the model file and they can legally hire you out, why can't you pretend they give you the model and just sell the model? It might seem ridiculous but if you're doing this as a business, I'd work very carefully to make sure your business model remains that of a service provider; that you're letting them use your printer to print their files.

You can throw technology at this as a workaround. Provide your users a free 3D model storage service, a model library that where they can download to their storage, and then a printer hire service where they can print things from their storage. Convoluted, painful... But probably legal. At the very least, open to argument.

And a copyright owner can transfer copyright assignment, but simply providing something under one license doesn't mean you can't also license it out under other licenses. For something like this, the original owner almost certainly has the ability to give you a commercial license.