Despite the apparent clarity of Creative Commons licenses, there is great variety in how rightsholders define (or fail to define) commercial use. Specifically with regard to Open Access (OA) content with a CC-BY-NC or CC-BY-NC-ND license, we have been working with publishers from as far back as 2006 to define commercial use. Although some publishers originally defined commercial use by the nature of the user, at this point, no major STM publisher uses this definition -- thanks to the advocacy of authors, OA funders, and our own publisher relations team.
Instead, commercial use is now defined by the nature of the intended use case. Some publishers use a narrow definition of commercial use, which includes only re-publication and bulk reprinting of the article. Other publishers use a broader definition, which includes use in support of a product for sale on the market or intended to be on the market (this includes use in a regulatory submission or for medical affairs purposes). Taking the varying interpretations of commercial use into account, if the article is to be used purely for research purposes -- even if that use is at a commercial organization -- a royalty is not expected as long as no modifications are made to the article.
For these reasons, you may see what looks like inconsistencies in the way we charge for Open Access articles. Our decisions are based not simply on the nature of the requesting customer or the creative commons license of the article, but also on the stated intended use of the article, the publisher’s interpretation of the Creative Commons license, and whether modifications have been made to the content of the article.
We regularly discuss these issues with publishers and Open Access advocates. It is in this evolving landscape that we encourage publishers to define their interpretation of commercial use and gather new information from other publishers and OA advocates. We are often in the position of having to make judgment calls on royalty payments for OA material. With so much complexity surrounding various publishers’ interpretations of the definition of commercial use and what constitutes commercial use, mistakes are possible, but we are prepared to defend our decision-making process to all stakeholders, including customers, publishers, authors, and funders.
If you have questions regarding the use case, license terms, or publisher policy on a specific OA article or book chapter, please seek clarification from our customer service team.