- A. Overview
- B. NC and free licences
- C. Room for interpretation
- D. Interpretation and national legislation, law on general terms and conditions
- E. Objective interpretation
- F. Use and users
- G. Individuals and institutions
- H. No blanket prohibition on remuneration and commercial advantage
- I. No reduction to purely private use
- J. Rule of doubt under general terms and conditions law
- K. Social media platforms
- L. International understanding
- M. File sharing
- N. Version history
Literature: Till Kreutzer, German UNESCO Commission e. V. (ed.), Open Content – A Practical Guide to the Use of Creative Commons Licences, 2nd edition 2016; TillJaeger/Axel Metzger, Open Content Licences under German Law, MMR 2003, 431; Free Knowledge thanks to Creative Commons Licences Consequences, Risks and Side Effects of the Condition Non-Commercial – NC, accessed on: 14 July 2023, https://perma.cc/C75X-YLV6; LG Cologne, 05.03.2014, 28 O 232/13; OLG Cologne: Public broadcasting is "non-commercial" | ifrOSS, accessed on: 14 July 2023, https://perma.cc/2D8W-CDNU; Paul Klimpel, Prohibited from earning money? Educational materials and the problem of non-commercial licences, 2018; Definition: Open knowledge – Open Definition – Defining Open in Open Data, Open Content and Open Knowledge, accessed on: 14 September 2021, https://opendefinition.org/od/1.1/de/; Definition: Open Knowledge – Open Definition – Defining Open in Open Data, Open Content and Open Knowledge, accessed on: 14 September 2021, https://opendefinition.org/od/1.1/de/
A. Overview
73 Section 1.i regulates the NC – Non Commercial module. By referring to this in the licence grant, only non-commercial uses are permitted. The licensor thus reserves the right to make an individual decision regarding commercial use. If a user wishes to use the material commercially, they require an additional licence from the rights holder.
74 The module also contains a definition of what is considered non-commercial, namely uses that are not primarily aimed at obtaining a commercial advantage or monetary remuneration. In addition, it clarifies that file sharing is not considered commercial as long as no monetary remuneration is involved.
B. NC and free licences
75 The NC module is very widespread, but also raises many unresolved questions. This is because it severely restricts the possibilities for use, which conflicts with the fundamental orientation of CC licences to allow use. The Institute for Legal Issues of Free and Open Source Software (ifrOSS) lists CC licences that use the NC module as "open content licences".
C. Room for interpretation
76 The definition of "non-commercial" in Section 1.i. leaves room for very different interpretations. It is also controversial among lawyers. This leads to uncertainty both in the granting of licences and in the use of the licensed material. Adding to the uncertainty is the fact that even in court, the same use (use in public broadcasting) was assessed as commercial by the regional court in the appeal proceedings
77 These uncertainties also led to cautionary avoidance of non-commercial uses because users wanted to avoid risks : A 2008 study conducted by Creative Commons on the understanding of commercial and non-commercial found that users tended to have a narrower understanding of "non-commercial" than the licensors, and therefore refrained from uses that the licensor wanted to allow.
D. Interpretation and national legislation, law on general terms and conditions
78 CC licences are a set of contracts that are used worldwide and have become an international standard. Nevertheless, there are special features in their interpretation in Germany that arise from the nationally applicable laws and that are also decisive for what is understood as "non-commercial". This is because when granting rights of use through standardised contract texts and thus also through CC licences, the provisions for general terms and conditions (GTC) pursuant to Sections 305 et seq. of the German Civil Code (BGB), in particular Section 305c BGB, apply (cf. VorCCPL margin note 9 et seq.).
79 This legislation pursues the aim of interpreting the binding meaning of a declaration for the parties involved in the specific constellation in which contracts are not negotiated but are pre-formulated for a variety of constellations and therefore recourse to the specific features of the concrete legal relationship is ruled out in the interpretation. [9]
80 The rules of interpretation under Section 305c of the German Civil Code (BGB) include objective interpretation and the rule of doubt, according to which, in case of doubt, the interpretation should be to the detriment of the user.
E. Objective interpretation
81 For interpretation within the meaning of the CC licence in conjunction with Sections 305 et seq. BGB, neither a prevailing international nor a specific legal understanding of which uses are considered commercial applies. Rather, according to the established case law of the Federal Court of Justice (BGH), the principle of objective interpretation applies. According to this principle, the meaning must be determined "according to objective standards, detached from the accidental circumstances of the individual case and the individual perceptions of the contracting parties, taking into account their economic purpose and the chosen wording".
82 What matters here is the recipient's perspective, and not that of a recipient with special prior knowledge. Relying on special prior knowledge would not do justice to the nature of pre-formulated contracts, where it is not known who will read them. The decisive factor is therefore how a particular term is understood in general. This is because it is generally assumed that the term is used in its common linguistic sense. This is all the more true given that the CC licences, in particular the pictograms and summary (Deed, see Einl Rn. 27), use language that is intended to be understandable even without legal expertise.
83 Therefore, the distinction between commercial and non-commercial use contained in various provisions of copyright law plays at most an indirect role in the understanding of the term. The wording there is "non-commercial archives or institutions [...]" (Section 54c UrhG), "for non-commercial purposes" (Sections 60a (1), 60b (3) UrhG), "non-commercial scientific research" (Section 60c (1) UrhG), "non-commercial purposes" (§§ 60d (2) No. 1, (3) No. 2 and (4); 60e (4) and (5); 61d (1) UrhG), "no direct or indirect commercial purposes" (Sections 60e (1), 60 f (1) UrhG) or "non-commercial use" (Section 87 g (2) No. 2 UrhG).
84 The precise distinctions in the wording of the aforementioned provisions should not be assumed to be generally known. However, they do express that certain public institutions are generally assumed to be non-commercial, for example when Section 60a (4) UrhG lists a number of institutions. It is true that the legislative materials indicate that it is no longer the institution that matters, but rather the specific action.
F. Use and users
85 The wording of the licence text itselfrefers to the type of use when it comes to distinguishing between commercial and non-commercial activities. In principle, it depends on the specific use and not on the user.
86 In the case of a company, it is generally assumed that its actions are profit-oriented, whereas it is necessary to provide separate justification as to why the action is, in exceptional cases, to be classified as non-commercial. In the case of non-profit organisations, on the other hand, it is generally assumed that their actions are non-commercial, and only in exceptional cases are activities classified as commercial.
87 A company can nevertheless act non-commercially if, in a specific case, it does not primarily seek remuneration or a monetary advantage. This may be the case where the use of mere information serves no purpose other than to generate profit.
88 Conversely, in the case of a non-profit, non-commercial institution, it can generally be assumed that its actions are to be classified as non-commercial.
89 Here, too, there are exceptions. Not only for tax purposes is a museum shop or museum cafe considered a commercial entity of a museum. Similarly, the commercial nature of uses by other fundamentally non-commercial institutions must be affirmed if in specific individual cases these are primarily aimed at generating income.
G. Individuals and institutions
90 It is generally irrelevant whether the use is made by individuals or institutions.
91 Uses by individuals in a purely private context are classified as non-commercial. In the case of uses by individuals in a professional context, however, the classification depends on whether the use appears to an outside observer to be that of the employer or client. If this is the case and the employer or client is acting on a non-commercial basis, this also applies to the use in question. This is because, when viewed from the outside, it appears to be a use of the institution. It is irrelevant whether and how employees or contractors are remunerated and what contractual relationship they have with the institution. A differentiation based on whether it is an employment relationship subject to instructions or a contract would be based on the internal contractual relationship, which is not apparent from the outside. However, the decisive factor for the nature of a use is how it is perceived. It is not in line with the general understanding of non-commercial that the uses of non-commercial institutions are to be regarded as commercial as soon as employees or contractors are paid.
92 An example: Use in an adult education centre course is to be considered non-commercial because the adult education centre is perceived as a publicly funded organisation that is not profit-oriented. It is therefore not "primarily" aimed at monetary remuneration; it is merely a contribution towards the costs of a service that is largely financed by the public sector.
93 In Germany , general education schools, universities and adult education centres are state-funded and are also perceived as services provided by the public sector, which are not, at least not primarily, concerned with generating profits. Under state aid law, it is only possible for the public sector to engage in economic activity to a very limited extent. Education and culture should be offered as public services regardless of whether they are financially viable. There are, of course, commercial, profit-oriented educational services such as language schools, driving schools or training courses to prepare for the hunting licence exam. There are also commercial support services that supplement public institutions, such as commercial tutoring centres that supplement public schools or fee-based legal revision courses that supplement universities. However, there is a very clear distinction in the general consciousness between public, non-profit-oriented institutions and commercial services.
94 What matters is this distinction in the general understanding that shapes the recipient's perspective, and not how high the rate of public funding for an institution is or the amount of the participation fees. Therefore, neither the participation fee paid by course attendees nor the remuneration of individual lecturers changes the classification of an adult education centre as non-commercial. Nor does it matter what contractual relationship exists between the lecturer and the adult education centre, whether it is an employment relationship or a contract. This is because the lecturer's services are integrated into the adult education centre's offering and are also perceived as services provided by the adult education centre.
95 The extensive economisation of the healthcare system means that the use of content by hospitals is generally considered commercial, even if the hospitals are publicly funded and although the healthcare system in Germany is also regarded as a public service, the provision of which is secured by a compulsory insurance system and tax revenue. This applies even more so to private hospitals and registered doctors. In contrast, economic considerations take a back seat for fire brigades and rescue services, so that the use of CC-licensed content there can generally be considered non-commercial.
96 Deutsche Bahn's services are also perceived as "commercial", not only because of the private-sector legal form of the state-owned company, but also because certain services are purchased here in a clear exchange relationship and the railway company also operates on a profit-oriented basis. It is therefore not a question of the ownership structure or organisational form of a company, but rather whether a service is typically perceived as public and non-commercial or not.
97 Unlike the railways, public service broadcasting has the much-discussed peculiarity that it is predominantly financed by licence fees and is therefore not subject to commercial exploitation logic. This applies in particular to the advertising-free Deutschlandfunk, which is also not subject to the market logic of the advertising market. The classification as non-commercial by the Higher Regional Court of Cologne is based on the fact that the licence fee is not subject to commercial exploitation logic. The classification as non-commercial by the Higher Regional Court of Cologne
98 A freelancer, on the other hand, who is engaged in entrepreneurial activity as part of their own business, always acts commercially.
H. No blanket prohibition on remuneration and commercial advantage
99 Remuneration or payment does not without exception preclude the classification of use as "non-commercial". The definition in the licence text also states that the uses are not primarily aimed at a commercial advantage or monetary remuneration. Remuneration or commercial advantage are therefore irrelevant as long as they are not the primary objective. For example, contributions towards expenses or nominal fees do not automatically lead to the action being classified as commercial. The same applies to fees, especially in the case of public-law fee creditors. By definition, fees are only intended to cover all or part of the costs incurred. However, they are not primarily aimed at monetary remuneration.
100 A distinction must be made when it comes to advertising on websites: in the case of a private website or the website of a non-profit institution, where advertising merely serves to refinance server costs, does not dominate the appearance and where the nature of the website otherwise indicates that there is no intention to make a profit, this cannot be considered commercial. No commercial advantage is sought here, and despite the advertising revenue, the website is not primarily aimed at monetary remuneration. However, even in the case of websites run by non-commercial providers with advertising, the threshold for commercial use may be crossed if, in individual cases, this advertising dominates the appearance of the website.
101 Advertising on the websites of commercial providers, such as publishers, is to be viewed differently. This does not change even if, for example, a newspaper publisher makes individual articles available online free of charge. This is because even these free loss leaders either serve to advertise the paid offers or are refinanced by advertising. The publisher's offer is fundamentally driven by the intention to make a profit.
I. No reduction to purely private use
102 Purely private uses are always classified as non-commercial. Contrary to the ruling of the Regional Court of Cologne from 2014
103 Nor does the doctrine of transfer purpose in Section 31(5) UrhG justify such an assessment. On the one hand, because the use of CC BY-NC-licensed content is also and especially outside the private sphere in educational institutions and in science. In this respect, there is no uncertainty as to whether uses outside the private sphere are also considered non-commercial and, consequently, no room for the application of a rule of doubt.
104 Secondly, in the case of rights of use granted by means of a standard form, the rule of doubt in Section 305c (2) of the German Civil Code (BGB) takes precedence over Section 31 (5) of the German Copyright Act (UrhG) in any case.
J. Rule of doubt under general terms and conditions law
105 According to Section 305c (2) BGB, a clause is only to be interpreted to the detriment of the user if it is actually unclear.
106 With reference to the rule of interpretation in Section 305c (2) BGB, the Higher Regional Court of Cologne ruled that public service broadcasting could invoke a CC BY-NC licence.
107 The court had previously stated that there was no generally accepted understanding of commercial use within the meaning of the CC licence. This can no longer be considered true in general terms today. In recent years, the use of CC licences has also increased significantly in Germany. The requirements of various funding bodies have contributed to this. Public broadcasting uses CC licences, they are widely used in academia, in the education sector the concept of OER is based on free licences, and CC licences are also a widely used standard in the cultural sector. Therefore, ideas about the scope of the individual licence variants have generally become more concrete and an understanding of what is undoubtedly to be understood as non-commercial has developed.
108 Nevertheless, there are still cases of doubt today where an interpretation in accordance with Section 305c (2) of the German Civil Code (BGB) is required at the expense of the licensor. In addition to public broadcasting, the use of content by commercial enterprises should also be considered if this use is not related to economic activities and at least does not directly serve the purpose of generating profit.
K. Social media platforms
109 When publishing content on social media platforms, what matters is whether the user who publishes content on the platform is acting commercially, and not whether the platform itself is operated commercially.
110 As a general rule, if a non-commercial user makes use of a service that is operated commercially, this does not constitute commercial use. For example, if a non-commercial school district uses a commercial copying service to copy CC NC-licensed content, this does not violate the licence.
111 The same applies to well-known social media platforms such as Instagram, YouTube, Twitter, X and Facebook. Although these are operated commercially, using these platforms does not automatically constitute commercial use. Legally, when assessing specific content, the focus is on the person who publishes this content on the platform. In this respect, platforms merely provide the technical infrastructure. They are therefore not directly liable for content published there. Even though the liability privilege for providers originally regulated in Section 10 TMG has since been restricted and specified by the DSM Directive, the UrhDaG and also the Digital Services Act, the basic principle remains that the admissibility of a publication on platforms is based on the legal position of the users.
112 The same must also apply when it comes to whether this publication is of a commercial nature.
113 If a private individual or a non-profit association posts content without the intention of making a profit, this is to be considered non-commercial use – even if the platform is operated commercially.
114 The situation is different, however, for users who are themselves commercial operators. A professional YouTuber who publishes videos with the intention of making a profit is acting just as commercially as a company that publishes content for advertising purposes.
115 Section 6 of the Digital Services Act (DDG) stipulates that platform operators are obliged to label commercial communications as such. Conversely, this means that not all communications on the services covered by the DDG are to be regarded as commercial.
L. International understanding
116 This national legal requirement under the BGB does not apply internationally. Only in Germany do the rules of interpretation in Sections 305 BGB ff. and, in cases of doubt, an interpretation in favour of the licensee pursuant to § 305c (2) BGB. This must be taken into account because CC licences are used in an international context, particularly in the field of science. This is not to say that the above-mentioned principles of interpretation cannot be justified in an international context.
117 The "rule of doubt" also applies within the EU on the basis of Art. 5 Directive 93/13/EEC. However, for countries outside the EU, its validity cannot be assumed. This can play a role in two ways: On the one hand, international licensors could consider a certain use to be commercial, which is considered non-commercial here due to the rule of doubt in Section 305c (2) BGB. This can lead to discord or even legal disputes. On the other hand, the licensing of German authors by internationally active publishers not based in Germany could lead to certain uses that are borderline commercial being considered commercial abroad, whereas they are not in Germany. Consequently, authors' expectations of what they achieve through the NC condition differ from those of internationally active publishers.
M. File sharing
118 Section 1.i clarifies in sentence 2 that file sharing is not considered commercial use if no monetary remuneration is involved in connection with it. This clarification is understandable given the importance that file sharing has had in the past for the digital distribution of content on the one hand and in disputes over copyright on the other.
N. Version history
119 The definition of NC in the international version corresponds to the wording of all previous versions, from 1.0 to 3.0 international. Version 4.0 contains an explicit definition at the beginning of the definitions section, while all previous versions, due to a different structural layout, contain the definition under "Restrictions" in 4 b.
Creative Commons License
Open Access Kommentar, Commentary on Section 1.i./h. Non-commercial is licensed under a Creative Commons Attribution 4.0 International License.
