An excerpt from the Print-on-Demand Guide, by Lauri Aesoph
Many wonder if it’s permissible for an individual or service to sell printed open textbooks that include the NonCommercial feature as part of the Creative Commons licence.
The answer is yes. So why are so many people concerned that they are breaking the law by doing so?
Authors who are worried that their freely available work might be used for financial gain by an individual or company can add the NonCommercial (NC) option to a work with a CC BY licence. The NC component prohibits anyone from using “the material for commercial purposes.” Creative Commons defines “commercial purposes” as those that are “primarily intended for commercial advantage or monetary compensation.”
The CC BY-NC licence and other NC variations have caused confusion and concern, as members within the open education community have grappled with how or if they are permitted to sell printed copies of NC-marked textbooks, especially in college or university bookstores.
If the price set for an NC-marked textbook is for cost recovery, and not for profit or “commercial purposes,” then selling is allowed. “Cost recovery” refers to setting the price of an item such that it recovers or recoups the costs of a given expense. The costs recovered for an on-campus print-on-demand service might include the price of materials needed to produce a printed textbook, such as paper and ink, or labour costs.
Third-party printing services
Some post-secondary institutions and faculty elect to use third-party copy services to print NC-licensed materials for the classroom.
Question: Is this allowed if the third-party service makes a profit from the printing job?
Two legal cases in the U.S. address this question.
The first case involved Great Minds, a nonprofit that creates curricula for the prekindergarten through grade 12 sector. In 2016, Great Minds sued FedEx, arguing that, because FedEx made money from printing Great Minds’ NC-licensed OER for school districts, their use of the materials was commercial and thus violated the conditions of the licence. However, in 2018, the United States Court of Appeals for the Second Circuit ruled that a commercial copyshop may reproduce educational materials at the request of a school district that is using them under a CC BY-NC-SA licence.
A second ruling in 2019, called Great Minds v. Office Depot, reached a similar conclusion. The United States Court of Appeals for the Ninth Circuit ruled that there “is no dispute that the school and school district licensees’ copying of Great Minds’ material is permitted under the License.”
Answer: The user, or licensee, of a NonCommercial work (i.e., the person exercising the NC licence rights) is permitted to pay a third-party printing service to make copies of the NC-licensed work on their behalf, as the printing service would not be a licensee and therefore would not be barred from making a profit when printing NC-licensed materials.
What is not allowed is for licensees to print and sell NC-licensed works for commercial purposes.
The Power of Copyright Ownership
Copyright is an asset, and those who own copyright have legal permission as the licensor to sell or distribute their work as they wish, including entering into more than one agreement about how that work can be used.
Authors who want to restrict others from commercializing their work without advance notice can do so by assigning a Creative Commons Attribution-NonCommercial licence to it. However, because CC licences are non-exclusive, the author or copyright holder may also engage in non-CC sharing agreements, such as personally selling their work for a profit or giving others permission to do so.
- “Attribution-NonCommercial 4.0 International — CC BY-NC 4.0,” Creative Commons, accessed March 11, 2020, https://creativecommons.org/licenses/by-nc/4.0/. ↵
- “Additional Resources,” Creative Commons Certificate for Educators and Librarians, Creative Commons, accessed March 11, 2020, https://certificates.creativecommons.org/cccertedu/chapter/additional-resources-4/. ↵
- Great Minds v. FedEx Office & Print Services, Inc., No. 17-808, Justia (2nd Cir. 2018), https://law.justia.com/cases/federal/appellate-courts/ca2/17-808/17-808-2018-03-21.html. ↵
- Great Minds v. Office Depot, Inc., No. 18-55331, Justia (9th Cir. 2019), https://law.justia.com/cases/federal/appellate-courts/ca9/18-55331/18-55331-2019-12-27.html, at *8. ↵
- Diane Peters, “Recent U.S. Legal Decision Reinforces Strength of CC Licenses,” Creative Commons, April 2, 2018, https://creativecommons.org/2018/04/02/recent-u-s-legal-decision-reinforces-strength-cc-licenses/. ↵