User:Fastfission/Noncommercial

Since Wikipedia is an educational and non-commercial site, members will sometimes contribute copyrighted material which is approved only for non-commercial or education-only use ("NC/EO" material). Unfortunately, such material is not permitted on the English Wikipedia. Textual content must be licenseable under the GFDL, which makes no provisions for whether or not the use of a work derives revenue or whether it is used for educational purposes or not, and Jimbo Wales made it clear in May 2005 that such restrictions on images were not permitted on Wikipedia in an e-mail to the WikiEN-l list:

All images which are for non-commercial only use and by permission only are not acceptable for Wikipedia and will be deleted. ... As of [May 19, 2005], all new images which are "non commercial only" and "with permission only" should be deleted on sight. Older images should go through a process of VfD to eliminate them in an orderly fashion, taking due account of "fair use".

— Jimbo Wales

Because this policy is somewhat controversial and often misunderstood, this page is an attempt to make clear the rationale behind it, and to answer some of the most frequently asked questions about the policy. It is not intended to be a policy guideline, but rather to give some explanation behind the policies. None of the views expressed here are official, and none of them are uncontested or uncontestable.

What's a "non-commercial" or "education-only" (NC/EO) license?

This is fairly easy to determine. If a license prohibits use for commercial or for-profit purposes, it's a "non-commercial" license. This includes the Creative Commons' "Non-Commercial" license module, which is a very popular non-commercial license. Similarly, if a license restricts use to educational institutions or purposes only, it's an "education-only" license. Often the NC/EO clauses are present in very crude licenses used on websites (i.e., "You are free to use these photos for non-commercial purposes"), as opposed to a fully-developed legal license like those given by Creative Commons.

Are these considered "free" licenses?

According to Wikipedia's definition, these are not free licenses. These licenses put additional restrictions on the material's use, and Wikipedia's license demands that anyone be free to use the material for any purpose. NC/EO restrictions are just that: restrictions. They are not compatible with Wikipedia's license.

But if money is not charged, aren't they free?

This can be confusing to those not familiar with free content principles. The word "free" has at least two means in English: one referring to "freedom" (libre) as a political right and the other referring to "free" as in a lack of purchase cost (gratis). "Free content", as it applies to Wikipedia, refers specifically to the former and not the latter: Wikipedia content is licensed under the GFDL, which means that although it is copyrighted, it is free for others to re-use as they wish under the liberal constraints of the GFDL (see Wikipedia:Copyrights for more information). The fact that Wikipedia is offered free (as in gratis) to the public is a nice perk, and is currently key to Wikipedia's model of development and growth, but is not a necessary part of its self-description as "the free encyclopedia". That "Wikipedia is free content", in the sense of libre, is one of the Five pillars of Wikipedia, where as Wikipedia being gratis is not.

Why do some people use NC/EO licenses?

Some people feel that if their work is licensed under a NC/EO license, it will be used for "better" purposes than if it was available for commercial use. And many people are afraid of a situation in which a large corporation would be able to exploit their work for profit.

Aren't these valid concerns?

Yes and no. Wikipedia's license does not forbid commercial use, but the desirability of a given usage does not necessarily have anything to do with commercial status. For example, a commonly-discussed future possibility for Wikimedia would be to sell Wikipedia content at cost in book form in third-world countries. Charging any money would be disallowed by a non-commercial license, but distributing the literature would be prohibitively expensive if there were no charge. Other examples have been discussed as well.

As for the possibility of a large corporation exploiting Wikipedia contributions for profit, such a situation, while technically possible, has never occurred for content released under a free license. Most major corporations are disinclined to use content licensed under a viral license like the GFDL (which requires that any derivative content made with it also be licensed under the GFDL), because they rely upon strong copyright enforcement for their profits. After all, the purchaser of this content could legally make copies and distribute them freely, according to the terms of the GFDL.

In the end, if a content provider decides he or she must license material only under a NC/EO license, then Wikipedia cannot use that material. This fact alone has convinced some providers to license their material under the GFDL.

What use is considered "non-commercial" or "educational-only"?

The categories "non-commercial" and "educational use" are often imprecise, and the implementation of them can vary in different local and international contexts. Sometimes groups that one would consider to be doing things in a "non-commercial" manner are not legally registered as "non-profit", and other seemingly commercial groups (such as the National Football League) are legally non-profit organizations. Further, the category of "educational" is very constricting, currently excluding Wikipedia itself in many legal contexts.

So can Wikipedia content be used for profit?

One of the common misunderstandings about the free content movement is that it disallows profiting. This is not, and has never been, true. The question is over what terms can profit be generated. Generally speaking, profit can be made from "free content" as long as it is not being made from the intellectual property rights. A common example of this is the distribution of the Linux operating system. An individual may not charge another individual for the rights to use Linux, but they may charge for the distribution costs (i.e. the CDs, the manuals, the boxes), and they can also charge for things such as service (i.e. technical assistance). As such, there are companies which make their entire profits from "free software", profitting from the "extras" they add to it rather than the intellectual property. In the end, everyone profits from this sort of scheme: it allows a for-profit market to exist, which can improve upon the intellectual property, without removing the intellectual property from future public use. It is a combination meant to capitalize on the best of both worlds: the "gift culture" of the free software movement and the market-driven approach of private enterprise, and works best when it does not restrict either from using the intellectual property. (For a more thorough discussion of this, see Eric Raymond's book, The Cathedral and the Bazaar)

Does it hurt Wikipedia to disallow NC/EO content?

By disallowing content not available under the GFDL, Wikipedia loses the ability to incorporate some content from other sites or producers. In the end, mostly this will have a short-term aesthetic effect (i.e., we will not have a few photographs that we might otherwise have). In the long-term, it will probably work to encourage the creation of even more completely free content, not bound by economic restrictions.

Jimbo has phrased this in the following manner:

> IMHO we would severely hamstring ourselves if we didn't allow this.

I don't think so. There might be some extreme cases in which we might desperately need something that is unavailable under a free license and also unavailable under a conservative interpretation of 'fair use/fair dealing', but it is very hard to think of examples.

One very big issue is that if we permit ourselves to use content under a proprietary license, we do two very bad things:

1. We dilute our standing as a shining example of what freedom can bring. We lose the ability to speak publicly and say: "Look, the claim that proprietary copyright is necessary for the production of quality content is not true; we have proven it." Instead, we have to point to our work and say "Well, some of it is free, but some of it is proprietary, and we really needed the proprietary stuff to make it work."

2. We remove the incentive for free alternatives to develop. Imagine if I went to a major stock photo house and obtained, as a charitable contribution, licenses for wikipedia-only use of photos of major landmarks around the world. Then why should anyone bother to go out

and take a photo of the Leaning Tower of Pisa with Wikipedia in mind?

— Jimbo Wales

Why did Wikipedia choose a license that allows commercial and non-educational use?

There are many reasons, some of which have been discussed above: Wikipedia may not legally be considered educational in all situations, any commercial use would still have to keep the material freely available, and it dilutes the "free and open" principle upon which Wikipedia was based.

In addition, such restriction could be limiting to Wikipedia's own growth. While at the moment the Wikimedia Foundation is a registered non-profit, and Wikipedia is run in a non-commercial fashion, the future is always unknown. As Wikipedia grows larger, it may also want to pursue partnerships with other sites which are for-profit, or expand some of its projects beyond a reasonable interpretation of what is "educational". Wikimedia has chosen not to limit its future possibilities by incorporating such restrictions.

Can we use NC/EO material under a "fair use" doctrine?

Yes, if the fair use rationalle is valid. Wikipedia allows unlicensed material to be used under the "fair use" clause of U.S. copyright law (described at Wikipedia:Fair use). This is true for material for which we do not apply the license, such as works released under a NC/EO license.

In the thread in which he prohibited "non-commercial" content, Jimbo clearly separated out "fair use" as a different issue:

If an image meets our fair use/fair dealing guidelines, which

basically means that it is easily fair use for us, and likely fair use for most contemplated reusers, then we can keep it (because it is free in the relevant sense) even if we are also able to obtain a license of some sort. It can be wise for us to have licenses for content that we could use without a license, just to make things more clear. ...

If the only way we can use a particular image is through a non-free license, and we believe that a fair use defense would be unavailable to us, or to most contemplated reusers, then it should be avoided.

— Jimbo Wales

Images used under the "fair use" clause are, by definition, being used outside of a license. This has been used as a way to preserve some material which was licensed under prohibited NC/EO licenses. This might make a "fair use" defense necessary for a re-user, while not legally necessary for a non-profit company like Wikimedia, but a fair use rationalle is still necessary according to Wikipedia policy. For the moment Jimbo and the Wikimedia Foundation have decided to permit "fair use" content and to leave all "fair use" decisions for re-users up to the individual re-user.

Should I license my material under a free-license, rather than a NC/EO one?

This decision is, of course, up to you. But of course Wikipedia cannot accept your contributions unless they are released under a free license.

Bear in mind that the GFDL requires that any re-user re-license the final work under the GFDL as well. Most for-profit producers would never do this, as it would endanger their own ability to make money off of their intellectual property. Using a license like the GFDL almost by default rules out the possibility that a major content producer would re-use the work, as it generally would not fit in with their legal model.

Since you retain the copyright for works released under the GFDL (or other free licenses), you can always license them in other ways as well. For instance, some users leave a note on the description page of their images stating "If you are interested in using this under different licensing terms, please contact me directly." Just because you have licensed something as GFDL does not mean you cannot establish different licensing terms with other parties at a later date —- it simply means you cannot turn around and sue people for infringement if they continue to use it under the terms of the GFDL (that is, you cannot later grant an exclusive license to it if you have previously licensed it under the GFDL).

If you are worried that educational institutions will not be able to use it under the GFDL (for whatever reason), you could also add a line after the license that says, "There are no restrictions on the educational use of this image." Here you would be "granting" extra rights for educational users, allowing them to reuse the material outside of the GFDL. In any case, if the content is also licensed under a free license for all other users, then this should not be against any of Wikipedia's copyright policies.

Some people choose to release only low-resolution (i.e. web-resolution) versions of the content under the GFDL, with the hope that people wanting higher-resolution versions of it would contact you individually. This is not prohibited by Wikipedia's policies, but is a less-preferred solution.