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Wired releases images via Creative Commons, but reopens a debate on what “noncommercial” means

The complexities of sharing: Does “noncommercial” mean not-for-profit? The absence of ads? Or simply that you’re not selling the work someone else is giving away?

Wired.com today announced it would, from today forward, be releasing all of its staff-produced photos under a Creative Commons license. That means lots of photos of tech-and-geek-culture luminaries — from Steve Jobs to J.J. Abrams, Tim Burton to Steve Ballmer — are now available for wider reuse; to kickstart the effort, they’ve released 50 recent photos.

Creative Commons has been a force for good on the web, letting people share their work with others and making it easier to let them define the terms of that sharing. And getting Wired — and, by extension, its parent Conde Nast — on board is a good thing. But there are a couple of wrinkles here worth noting for publishers.

CC sharing as a form of distributed SEO

The Wired announcement says the photos “are free for all to republish” — but “with minor restrictions.” The first one of those is this: “Photos must be properly attributed to the photographer and Wired.com, and we ask for a link back to the original story where the photo first appeared.”

Note that the act of attribution is required (“must”), but the request for a link is phrased as “we ask.” But as the CC license Wired is using states: “You must attribute the work in the manner specified by the author or licensor.” So using one of Wired’s photos would seem to require a link back to the story that includes the photo. (In the case of the photo above, by Jim Merithew, it’s this story here.)

At the cynical-publisher level, you could think of what Wired is offering more as a trade than as a pure act of sharing. It’s not: Here, have these lovely photos. It’s: Here, have these lovely photos in exchange for linking to our stories, driving us traffic and helping our story get better optimized for Google.

That’s not to denigrate Wired’s motives as insufficiently pure. They run a for-profit business, not a photography charity whose mission is to improve the aesthetics of tech blogs. It’s just to note that there’s actually a business argument to be made for a move like this. Having their photos run on someone else’s website costs Wired exactly zero — and they’ll get some small but real financial benefit out of it.

That’s an argument that could make sense to a lot of publishers — particularly since, as the now-near-death Righthaven knows, their photos are going to be widely used around the web anyway. Why not try to monetize them in a web-native way instead of running to the courthouse?

“Noncommercial” remains nonclear

The other restriction Wired is placing on the use of their photos is allowing only “noncommercial use.” Creative Commons builds a “noncommercial use” option right into their licenses; it’s the “NC” in the license Wired is using, CC BY-NC 2.0.

But what does “noncommercial” mean? Creative Commons isn’t very helpful here. Their definition of “commercial” is “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” That’s still pretty fuzzy. Selling the photo would certainly seem to count as “commercial.” But is using the photo on a web page that also has ads on it — is that commercial? How about using it on a web page that has no ads but which is on a site that has lots of them? Or how about using it on the site of a for-profit business — a site that doesn’t sell any ads but is, in effect, one big ad for the business?

Here’s how Wired defines what it means by noncommercial:

We welcome editorial use by bloggers or any other publisher, but we are not authorizing commercial use, like using one of our photos in an advertisement.

Interesting! As a publisher, I happen to like that definition. But that isn’t the definition of noncommercial shared by most Creative Commons users.

We know this because Creative Commons did their own survey of CC users a couple years back and asked them, specifically, what they thought noncommercial meant. (Full study here.) The study asked people licensing their work under CC how commercial or noncommercial they viewed certain uses of their work, on a scale from 1 (definitely noncommercial) to 100 (definitely commercial.)

Here’s a chart showing some of their responses (the two dots for each question represent the mean response from content creators and from content users):

(If that’s too small to read, see page 55 of the PDF.)

What this chart tells us is that (a) creators and users of CC content are generally pretty close to each other in their opinions, and (b) they believe that using CC material on a site with ads counts as commercial use. For content creators, having their work appear near ads scored 84.6 on the noncommercial-to-commercial 100-point scale. For content users, that number was 82.6.

In fact, both creators and users argued that the mere fact that an image was being used by “an organization” instead of “an individual” rendered it more commercial than noncommercial. Go check out that PDF if you want to see much more detail, but the takeaway is that, while Creative Commons has left “noncommercial” ill-defined, people who use Creative Commons believe that most in-dispute use cases count as commercial.

Which is why Wired’s declaration that editorial use by bloggers and publishers — for-profit or not, Wired competitor or not — is okay is so interesting. If more publishers start releasing their work under CC and declaring more liberal use cases okay, that conversation around “noncommercial use” could start to evolve toward more publisher-friendly terms.

What’s doubly interesting is that, in the comments to Wired’s post announcing its move, users are already starting to question its definition of noncommercial. Here’s commenter Simon Lyall:

Yeah commercial use is pretty restrictive. For example this page has 3 large adverts so it counts as commercial. There the images couldn’t be used on the equivilent page on another website.

Thus the ” We welcome editorial use by bloggers or any other publisher ” doesn’t really work for anything that has ads, where money is exchanged or happens in a commercial context (company newsletterssales powerpoint presentations)

To which Wired staffer Ryan Singel replies:

Actually, no one has ever defined and Creative Commons doesn’t define what counts as commercial under an NC license. Wikipedia could use NC photos, imo, and likely face no consequences for it. But that’s their policy.

And user Taylor B. O’Neal rightly notes:

Re: “we ask for a link back to the original story where the photo first appeared.” Could you please place that in the Flickr description as well because that’s going to be difficult to figure out.

I love CC, but this is one of its biggest underlying problems. Its reason for existence is to give people a way to make clear the terms under which they can share content. But those terms aren’t particularly clear to either the people creating CC content or using it.

It’s torn between the twin aims of making sharing simple and making it precise. That lack of precision is one thing that scares away media companies (and their lawyers) from embracing CC. (Lawyers don’t like legal agreements about which someone can say “no one has ever defined” the single most important term, even though that statement’s a bit of an exaggeration.) But making the licenses more specific and complex would likely scare away some users who don’t want to read through a legal treatise to share their Flickr photo.

Indeed, CC’s recommendations for those dealing with these dueling definitions, in one sense, amount to “deal with it”:

licensors should expect some uses of their works that would not meet the most stringently conservative definition of noncommercial, and licensees who are uncertain of whether their use is noncommercial should find a work to use that does unambiguously allow commercial use…

In any event, despite that complication, bravo to Wired for wandering into this space and, perhaps, illustrating a possible business case for openness and sharing.

                                   
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  • http://www.pathawks.com Pat Hawks

    It is also worth noting that, on their website, Wired specifies version 3.0 of the license, but Flickr is claiming version 2.
    http://alt.pathawks.com/cc-by-nc.html

  • EmanueleDG

    As you told, that CC license level specifies that the must is not the link, but a proper citation of the source. It may be also a JS-generated text (with proper NOSCRIPT alternate text for JS-disabled users).

  • Andreas F. Borchert

    To quote Ryan Singel from this article: “Wikipedia could use NC photos [..]“. The is not correct, all Wikimedia projects including Wikipedia insist on free media which, among other points, can be used commercially. See http://wikimediafoundation.org/wiki/Resolution:Licensing_policy and http://en.wikipedia.org/wiki/Wikipedia:Non-free_content for the documentation of some exceptions. Among others, the freedom to reuse content including for commercial purposes gives the freedom to print Wikipedia contents as books, see http://en.wikipedia.org/wiki/Help:Books/Printed_books.

  • http://twitter.com/dankennedy_nu Dan Kennedy

    Wired’s definition of “commercial” does seem to fit with the legal definition, which distinguishes between journalistic/editorial use (with ads or without) and pure commerce. For instance: A newspaper may publish a photo of the high school girls soccer team winning the state championship without restriction. But if it then tries to sell posters of the same photo, the girls might well be able to put in a claim for payment.

  • Mark Loundy

    Just because a concept or principle is widely misunderstood by laypeople does not mean that it is insufficiently defined. The concept of “commercial use” is well-understood by those whose jobs involve licensing images and other intellectual property.

  • Anonymous

    The license (both in 2.0 and 3.0) says: must keep intact “… to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work”

  • Timothy Takemoto

    Is wired.com’s interpretation of non-commercial fair? I am surprised to find that one of my NC photos is on wired. Another news outlet has came to ask for permission and accidentally, I think, gave the link to the wired article where my photo was already in use!
    A legal paper on the definition of “non-commercial”
    http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3234435/#B5
    quotes this article, and suggests that wireds interpretion of non-commercial is
    at the extreme end of generous (to commercial organisations such as wired)

    The authors write

    “In practice, the interpretations range from considering editorial use of
    images in a for-profit journal as non-commercial (e.g. the
    interpretation by Wired magazine, see Benton 2011a) to disallowing any use where money is exchanged, regardless whether for cost recovery or not. ”
    At the same time, I see from your chart that most people you surveyed to see wired as a commercial use (see page 55 of PDF)