4

Assume that someone is working on a government project either as a government employee or a contractor working on a site which will be delivered and then subsequently maintained by a government agency.

The question: Can the project make use of software which is free use for non-commercial purposes, such as e.g. under the Creative Commons licence CC BY-NC 3.0?

I've noticed that in the Highcharts FAQ section regarding this issue, they are rather explicit about government organisations being non-commercial, even though they do link to the software licence page. My question is not about Highcharts which has been very explicit about the matter, but rather about other software which is under that licence and is not explicit about whether government organisations are considered non-commercial or commercial (an example of such software would be fancybox).

  • 3
    The referenced FAQ says "Governmental organizations are not regarded as non-commercial," i.e. they are explicit about government organizations not being non-commercial. – Glenn Randers-Pehrson Jul 7 '16 at 19:37
  • @GlennRanders-Pehrson yes, but there's other software under that licence that are not explicit about it. My question is not about highcharts but rather things like fancybox who are not explicit about what they consider non-commercial. – apokryfos Jul 8 '16 at 8:01
5

It depends. The type of user itself doesn't matter, at least according to Creative Commons. It is how you use it that matters. From their FAQ:

Does my use violate the NonCommercial clause of the licenses?

CC's NonCommercial (NC) licenses prohibit uses that are "primarily intended for or directed toward commercial advantage or monetary compensation." This is intended to capture the intention of the NC-using community without placing detailed restrictions that are either too broad or too narrow. Please note that CC's definition does not turn on the type of user: if you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the term. Whether a use is commercial will depend on the specifics of the situation and the intentions of the user.

Their definition of "NonCommercial" can still be pretty fuzzy. This is a big weakness in Creative Commons Non Commercial licenses (and perhaps non-commercial licenses in general). CC have not clearly defined what "non-commercial" means, leaving it up to individual courts to decide.

How ambiguous can it be? Try this out: would you consider the following non-commercial?

  • Used by a public/government, not-for-profit entity
  • On a website for free
  • Without advertising or sponsorship

But a German court interpreted this as "commercial use". Apparently they drew on German law's definition of "non-commercial", which is something more like "private use".

Therefore if you must use CC's non commercial licenses, it's a good idea to explicitly define what you mean by "non-commercial", with the aid of a copyright lawyer. This looks like what Highcharts is doing in their FAQ. If you want to use something that's under a non-commercial license, you have to be very careful, and preferably seek permission from the author directly.

3

The CC-BY-NC-4.0 license contains a definition of noncommercial in Section 1.i:

NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.

CC-BY-NC 2.0 and 3.0 don't include this definition of Noncommercial.

You could write a license with a different definition of NonCommercial, but you wouldn't be able to call it CC-BY-NC, or, in fact, you wouldn't be even able to call it "open source". Note that the Highcharts FAQ mentioned in the question explicitly states that it is not "open source".

IANAL so maybe I'm missing something, but that does appear to me to say that government use is a noncommercial use.

0

Please check Highcharts FAQ:

Governmental organizations are not regarded as non-commercial and will require a license to be in line with our terms and conditions.

If you work on a government project with Highcharts' products you should buy a license.

  • I am aware about the highcharts FAQ line (I noted that in my question). My question is does above line only apply to Highcharts who were explicit about it or does it apply to all software under the creative commons CC BY-NC 3.0 licence (even ones which don't specify this line). – apokryfos Jul 8 '16 at 7:58
  • 2
    @apokryfos You noted it in your question but left out an important "not", which is why I commented above and probably why Mustapha posted this answer. – Glenn Randers-Pehrson Jul 8 '16 at 19:29
  • @GlennRanders-Pehrson Thank you, that was my point. – Mustapha Mekhatria Jul 10 '16 at 20:19
  • @GlennRanders-Pehrson I thought I was clearer that I was referring to the creative commons CC BY-NC 3.0 licence in general and not any particular software which is under that licence but I will update the question. – apokryfos Jul 11 '16 at 8:35
  • That's better but the sentence should say "they are rather explicit about government organisations NOT being non-commercial". It's confusing with the double negative, and even worse when one is omitted. – Glenn Randers-Pehrson Jul 11 '16 at 15:48

Your Answer

By clicking "Post Your Answer", you acknowledge that you have read our updated terms of service, privacy policy and cookie policy, and that your continued use of the website is subject to these policies.

Not the answer you're looking for? Browse other questions tagged or ask your own question.