A book by Yours Truly entitled “Networks, Complexity and Internet Regulation: Scale-Free Law” will be published in the near future by Edward Elgar Publishers in dead-tree form and hopefully also in ebook format. While negotiating the contract, the publishers kindly agreed to have the book published under a Creative Commons licence.

Whenever I present to an audience about Creative Commons, one of the top questions is whether it is possible (and viable) to have commercial content published with a CC licence, and if so, how would it be possible to profit from such an endeavour. The answer is that it is indeed possible for commercial content to survive with an open licence, and the key is the use of non-commercial clauses. The NonCommercial element in CC licences generates heated debate amongst open advocates. I do not wish to enter this debate, a simple Google query will give you an ample taster of the various arguments. In my experience, a large number of those who are not in favour of the NonCommercial element tend to come from a software background, particularly the Free Software movement, where freedom and openness tend to be defined as allowing both commercial and non-commercial derivatives. While I am sympathetic to the arguments of those against NC clauses, I believe that the easiest way to “sell” the idea of CC to commercial publishers is to release a work under an NC licence. This is merely a pragmatic approach, as the following paragraphs will explain.

In my experience, the main question asked by commercial intermediaries whenever you suggest to distribute content under a CC licence is very simple. Will I be able to make my money back? Intermediaries in the cultural and academic industries are businesses, so you must be prepared to make a strong and coherent case that it is possible for CC to co-exist with profit. My argument is that by using NonCommercial clauses, particularly BY-NC-SA or BY-NC-ND is the best way to ensure this. Imagine that you are a music publisher, you want to have exclusive commercial rights over the work. In an All Rights Reserved commercial work, you also want to have exclusive rights over non-commercial uses of the work. However, the Internet is making it more difficult to police such non-commercial uses, and to be honest, it is also more difficult to enforce commercial rights. If a musician wanted to publish their work under an NC CC licence, it would allow people to download and share the song for free. True, some publishers may not like such proposition, but in a competitive market, and particularly with less-known acts, this could prove to be valuable advertising. So, for a song published under a non-commercial licence, the publisher would retain their exclusive rights and would still get money from commercial uses, like radio, concerts, bars, etc. The only thing they would be giving up is the non-commercial side of the market.

The same thing applies for book publishers. They would have an exclusive licence from the writer to exploit all commercial uses of the book, but they would give up non-commercial uses, such as a teacher printing and photocopying the work for their class, or non-commercial PDF distribution of the work. There is growing evidence that both can co-exist successfully: Lessig’s Code 2.0, Benkler’s The Wealth of Networks, Boyle´s The Public Domain, and Zittrain’s The Future of the Internet are all released under a CC licence, and by all accounts are commercial successes (see Mathias Klang’s list of CC books). It is almost trite to mention Cory Doctorow as an immensely successful sci-fi writer who also releases his books under CC licences. These may very well be the exception to the rule, but I believe that publishers have nothing to lose and lots to gain from taking the CC route, particularly academic publishers.

How does this work in practice? In my case I was extremely lucky to meet a publisher who was willing to let me tinker with their boilerplate agreement. In most academic publishing contracts, the author grants the publisher an exclusive right to exploit the work. In my case, I modified the copyright grant clause to give them only exclusive commercial rights, not the non-commercial ones, which are covered by the licence. All CC licences allow for the author to enter into agreements that allow uses that go beyond the wording of the licence, so by this simple legal sleight of hand, one is able to grant exclusive commercial rights, while maintaining non-commercial uses intact.

Most books will contain a copyright page with a clause that looks like this:

© Name 2011
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher.

I modified this to read:

© Andrés Guadamuz 2011
Some rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise for commercial purposes without the prior permission of the publisher.
This book is Licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

This serves both the commercial interest of the publisher, and allows non-commercial uses.

I believe the above formula will become more common in the future, as authors wise-up to the advantages of using CC as a vehicle for promotion, and publishers realise that anything that can help increase sales is in their best interest. Perhaps you can have your non-commercial cake and eat it too.



greglas · May 27, 2011 at 12:24 am

Good luck with it — I'll be interested to hear your thoughts down the road about how it plays out for you.

In copyright class, I used the RDR case to explore the oddity of the way copyright relates to non-commercial internet-based distribution. Prior to the lawsuit, the defendant was apparently encouraged by the copyright owners to share the Harry Potter lexicon online non-commercially. But moving from a website to a commercial hard copy market changed the story. Copyright law, as currently written, pays hardly any attention to the distinction there, but Warner Bros or Rowling were commercially sophisticated and seemed comfortable with the de facto non-commercial licensing arrangement prior to the commercialization of the book.


    Andres · May 27, 2011 at 1:32 am

    Will do.

    Excellent point. The only distinction between commercial and non-commercial use nowadays seems to be that some commercial uses carry criminal liability.


Joey · June 24, 2020 at 12:17 am

I really like Creative Commons, but I’m finding that publishers don’t as there is so much grey area. I have a small press and publish my own books, but am thinking of starting to do ebooks with CC and the print like normal. For one, I’ve had so many headaches trying to publish older books, even in Public domain, for authors that have been dead for years and years, on Amazon and elsewhere. People who have nothing to gain any more from that copyright. It’s just awesome to be able to give the book freely to people who will read it, and not worry that big publishers will cut off the book from readers for money before and after I’m dead.

I don’t know though, if I could still publish the ebook on Amazon for profit. I’ve heard of some sellers getting flagged for that, though technically you should be able to. But I like that CC is growing, and more writers are publishing their books freely on the web, and that the big publishers don’t control everything anymore.

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