Another approach to distinguish commercial from non-commercial use could be to evaluate not the specific usage, but the type of user. Then you would only have to assess whether the user or institution – as a whole – can be considered commercial. Public schools and museums could then be classified as non-commercial based on their not-for-profit mandate, and one would not have to inspect the individual use cases for their commercial nature. Unfortunately, the NC mo- dule does not make it this easy, since it explicitly mentions the acts that have to be non-commer- cial. Hence we have to assume a commercial act if, for example, content is sold in a museum shop which is aimed at generating revenue, re- gardless of the legal status of the shop and the not-for-profit status of the museum. Completely irrelevant for the distinction bet- ween commercial and non-commercial use is whether the user is even financially able to pay license fees or if they would pay for usage rights in comparable situations. A charitable fund, for example, that uses a picture within their not- for-profit mandate, is considered non-com- mercial under the NC license terms even if it disposes of considerable means and would pay photographers in a similar situation. But there are very few not-for-profit institutions these days that have adequate funding and do not depend on additional revenues – which again places them into the gray area of our att- empted distinction. To completely avoid the NC module and its restrictions would avoid these uncertainties.
however contains no moral evaluation of the business conduct of the respective institutions or persons, but merely describes that they are obtaiting a commercial advantage and possibly aim for a financial remuneration. And that is necessary for anyone who is not fully financed by public funds or private donations. It is evidently commercial usage if a compa- ny uses an image or a text on their company website. It is also commercial use if an image is printed in a book that is published by a pub- lishing house, entirely independent of whether the author receives a remuneration or possibly even has to pay a printing fee to make the publi- cation possible. The publishing house acts with a commercial interest in either case. A more difficult decision is whether private blogs act with commercial interest, if they (or their hos- ting service) display advertisements and achieve revenues. These revenues are often minimal and cover barely the hosting costs. There are good arguments against classifying these undertakings as predominantly aimed at a monetary recom- pensation, and therefore allow to call them non- commercial. The distinction is difficult, though, and many cases are disputed. To stay with the example of the private blog: At which point does a blog lose its non-commercial nature? Already if the advertisement revenue surpasses the operati- onal costs? Or when the first penny is earned? Or only when an ‘appreciable‘ income is generated? Out of precaution, this difficult distinction will often lead the responsible party to not make use of CC licensed content, when the license contains the NC module. Even where the usage would actually be acceptable as non-commercial.
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