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Highcharts is supposed to be an open source chart project that is free for personal use and for non-profit organisations. For non-profit organisations and individuals it is licensed under the Creative Commons (CC) Attribution-NonCommercial licence

Now I'm in a situation that I am a software developer, developing software for an eligible organisation (non-profit, non-government since highcharts does not consider government organisations to be covered). Now as I understand it, this organisation does not need a licence for Highcharts and if I was an employee of this organisation I could just use highcharts to develop a Highcharts enabled website for them.

My questions are:

  1. Is my previous assumption that if an in-house team develops the organisation's website then a licence is not required correct?

  2. If I am not an employee of of that organisation but I am just contracted as an individual to create and deliver a Highcharts enabled website for them, do I need to purchase a licence for Highcharts?

  3. If I belong to a for-profit company which is contracted to develop a to create and deliver a Highcharts enabled website to a non-profit organisation, is a licence required in that case and if yes, what kind of licence (assuming that Highcharts is not generally going to be used by that company in any other projects or services)?

  • Have you tried reaching out to Highcharts to ask? They have a dedicated contact point for sales & licensing and I would assume they'd be happy to clarify for you. – Unsigned May 26 '17 at 15:01
  • @Unsigned I'll probably end up doing that but I'm concerned that their interpretation of the licence will be heavily biassed towards disqualifying entities which the licence is normally intended to include (they're apparently already doing that with government organisations for example). I just needed some more information before I did that which is why I've asked here. – apokryfos May 26 '17 at 15:11
  • If you're looking for a loophole in the license that goes against the rights-holder's wishes, you should probably hire a lawyer to consult. None of the respondents here are likely to show up and testify for you, should this ever go to court. I would still start with the easier (and cheaper) option of simply explaining the situation to their sales department. – Unsigned May 26 '17 at 15:19
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Firstly, IANAL/IANYL.

That said, Creative Commons says that the NC licence prohibits uses that are "primarily intended for or directed toward commercial advantage or monetary compensation". They go on to 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.

So the answer to question one seems to me to be that it depends what the non-profit, through its development team, is using the software for. If it's serving the non-profit's charitable purpose, then I suspect that is a lawful use under CC BY-NC. If it's fundraising, this is arguably not lawful (primarily intended for ... monetary compensation). My church rents its rooms out as a commercial proposition, and that activity would almost certainly not be lawful.

Questions two and three seem easier: your primary purpose in question two, and your company's in question three, are to make money, so the use under CC BY-NC is not lawful and in both cases a commercial license will need to be purchased.

In the end, CC advises that "you should either contact the rights holder for clarification, or search for works that permit commercial uses".

This is an excellent illustration of why non-commercial-only licences are not considered free.

  • The 2nd case still seems a bit odd to me. Presumably if the non-profit hired me as a temporary worker instead of contracting me then case 1 would apply? – apokryfos May 26 '17 at 12:32
  • I certainly think so; for me, that's one of the crucial differences between contracting and employment. Michael Kay disagrees in his answer, so you'll have to decide which to go with. However you make this decision, asking the licensor would certainly be a good idea. – MadHatter May 26 '17 at 16:17
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The CC-BY-NC 3.0 license has this to say about non-commercial/commercial use:

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.

CC-BY-NC 3.0 section 4.b

So contrary to the Highcharts FAQ it is not relevant what the identity of the user is: the actual license makes no distinction between individuals and organizations, or between non-profits, government agencies, and companies. The relevant part is the manner and intent with which the work is used. In particular, non-profit organizations sometimes do commercial things like fundraising.

What exactly non-commercial use means is left intentionally vague in the CC-BY-NC license. The Creative Commons Wiki has a page on the NonCommerical Interpretation but that is not part of the license. For cases that are not clear you'll have to ask the licensor, though in this case they might be biased towards interpreting usage as commercial use.

It is my subjective understanding that an organization may use a CC-BY-NC work if their use is clearly not primarily commercial, e.g. as part of an awareness and information campaign. This looks different if the “awareness campaign” is actually an advertisement for a product or for a fundraiser. If an otherwise informational web page gets a “donate now!” button, that would look commercial to me. Similarly, I would interpret use as part of internal accounting software as commercial use.

While the use of the non-profit organization may be non-commercial, this does not mean that your use as part of developing the work is also non-commercial. If you are selling a web page to the organization, that looks commercial to me.

Note that this answer is purely about the concepts of the CC-BY-NC license. I am not a lawyer and cannot advise on the licensing scheme of any concrete product.

  • So if I understand it correctly the statement in the FAQ under "Can I use the Non-commercial License for a government website?" is basically moot without specific context of how the software is used? – apokryfos May 26 '17 at 12:38
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    @apokryfos I think Highsoft is interpreting the CC-BY-NC license more narrowly than is correct. Note that the FAQ merely explains their interpretation of the CC license, and of course their interpretation is that more people should pay for their license. But the only legally relevant document is the full text of the CC license, and the license does not explicitly call out government use as commercial. The licence's (very vague) definition of commercial use is 100% about the intent and context of use, 0% about the identity of the user. – amon May 26 '17 at 12:53
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Now as I understand it, this organisation does not need a licence for Highcharts and if I was an employee of this organisation I could just use highcharts to develop a Highcharts enabled website for them.

IANAL. But

(a) the licensee would normally be the organisation rather than its employers or contract workers.

(b) the organisation does need a license. That's why Highcharts has provided one: specifically, the CC-BY-NC license.

(c) I don't think there's a distinction between employees and contract workers. If the organisation has a license to do X (and it appears they do) then they can ask you to do X on their behalf, whether you are an employee or not, unless the license defines explicit constraints, which it doesn't.

(d) If this license ever gets tested in court then the lawyers are going to have a field day and the outcome is highly unpredictable. It's therefore highly unlikely that anyone will risk suing anyone unless it's a flagrant breach. If what you are doing seems fair to you, then it's unlikely to be a problem.

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No answer seems to have told you this already so let me highlight that Highcharts is not open source nor free software! On their website they are very careful not to use these terms. Instead they say that they are "Free for non-commercial" (this means at no cost) and "Open" (which is vague but is basically about trying to benefit from the advantage of open source without fully committing to it). Indeed, they are developed in the open, on GitHub and anyone can contribute.

Next, I wouldn't venture in giving definite answers to your questions because the interpretation of the non-commercial clause might very well vary from jurisdiction to jurisdiction. So I cannot advise you in any way except to tell you that you should either:

  1. Talk to a lawyer.

  2. Ask to Highcharts themselves in writing, and hope that they give you a clear answer (this should help you to defend yourself in court if they later change their interpretation).

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