"Share No-Resale Clause” License Condition v1.0

The Licensed Material is provided to you by the Licensor under the License, as defined below, subject to the following condition.

Without limiting other conditions in the License, the grant of rights under the License will not include, and the License does not grant you, the right to Sell the Licensed Material.

For the purposes of the foregoing, “Sell” means practicing any or all of the rights granted to you under the License to provide to third parties, for a fee or other consideration (including without limitation fees for hosting, performing, exhibiting, or consulting/support services related to the Licensed Material), a product or service whose value derives, entirely or substantially, from the content of the Licensed Material. Any license notice or attribution required by the License must also include this Share No-Resale Clause Condition notice.

Licensed Material: [licensed material name]

License: [Creative Commons license]

Licensor: [ABC individual / company]

Question & Answer:

What is the Share No-Resale Clause?

The Share No-Resale Clause is a license condition adapted by Michael of St. Joseph from the original license condition simply called "Common Clause." The original license condition was drafted by lawyer Heather Meeker to apply a narrow, minimal-form commercial restriction on top of an existing open source software license. The purpose of adapting the "Common Clause" into the Share No-Resale Clause is to make this narrow, minimal-form commercial restriction applicable to copyrighted works using Creative Commons licenses. The combined text replaces the existing Creative Commons license, allowing all permissions of the original license to remain except the ability to "sell" the material as defined in the text.

This Clause is not intended to replace licenses of existing Creative Commons projects in general, but to be used by specific projects to satisfy urgent business or legal requirements without resorting to the strictest copyright protections offered by default.

If I change from a Creative Commons license to the Share No-Resale Clause, how does this affect my project?

When the Share No-Resale Clause is applied to an existing project, it only affects updates or additions moving forward -- meaning no existing users are immediately affected. Licenses applied to previous versions are not revoked, so the Clause will only apply to future releases.

If you choose to adopt the Share No-Resale Clause, you should understand the implications any license change will have on your community and weigh that against the threat of allowing others to trade your work developing your creative project.

The Share No-Resale Clause was intended, in practice, to have virtually no effect other than force a negotiation with those who may take predatory commercial advantage of openly shared Creative Commons projects. It was also to give creators a specific, protected method of profiting from their creative work. This method is not so heavy-handed as to restrict any and all copying or commercial use as is the case with default copyright protections.

The Share No-Resale Clause was not designed to restrict sharing or collaboration, but preserves the rights of creators to benefit from commercial use of their work. However, those that adopt the Clause should understand the broader implications of making a license change and commitments to no-resale.

May I create, distribute, service, and/or "sell" my products using Share No-Resale Clause licensed components?

Yes!

The Share No-Resale Clause only forbids you from "selling" the Share No-Resale Clause material itself. You may develop on top of Share No-Resale Clause licensed material (chapters, translations, adaptations, additions, changes, etc.) and you may embed and redistribute Share No-Resale Clause material in a larger product, and you may distributed and even "sell" (which includes offering in commercial services) your product. You may even provide consulting services whose substance is not wholly or substantially derived from the licensed material. You just can't sell a product that consists in substance of the Share No-Resale Clause material and does not add value. This is not a new concept. It's similar to "value-add" requirements in many licenses.

[Note: If you have a "NoDerivatives" provision in your Creative Commons license, adaptations will be prohibited as well. This will not preclude others from selling unaltered unsubstantial excerpts of your material within their products.]

Isn't this the same as standard copyright protection?

The Share No-Resale Clause creates a no-resale license that is less liberal than simple attribution-sharealike (or freer) licenses. It allows the licensor more commercial freedom in some ways than copyleft or reciprocal licenses, and it is much more liberal than default copyright protections.

A license that employs the Share No-Resale Clause provides many of the benefits of Creative Commons licenses to anyone not intending to "sell" the Share No-Resale Clause licensed material itself.

Anyone not intending to "sell" the Share No-Resale Clause licensed material itself may view the contents, make modifications, create copies, freely use, embed, print, and redistribute the material, make and distribute and sell derivative works (so long as there isn't a "NoDerivatives" provision).

To anyone wishing to sell the Share No-Resale Clause licensed material itself, an action that the license prohibits, it appears as fully copyright protected, in the sense that it would be necessary to negotiate a license to do that with the owner of the Share No-Resale Clause material.

Why not just use the "NonCommercial" option that already exists in the Creative Commons framework?

NonCommercial simply doesn't work to solve this problem. NonCommercial forbids any form of money being made by licensees of the Creative Commons licensed material. Non-profit organizations can't make use of it because they take donations and receive grants. Content creators can't use it because they often have sponsorships or receive ad-revenue. The application of NonCommercial is too far reaching and often confusing. Any licensee who may want to invest in someone else's Creative Commons material can't be confident they won't get in trouble for sharing that material. No-resale is a far better standard for promoting sharing and collaboration without doing away with the original author's ability to profit from their work.

Why did you use Creative Commons licenses as the basis for the Share No-Resale Clause?

It is because Creative Commons licenses are a known quantity within the law and among creative professionals. The goal was to clearly state everything else in the Creative Commons licenses is permitted, except for one kind of use.

The Share No-Resale Clause prohibits me from selling "substantially" the Licensed Material under this clause. What does "substantially" mean?

"Substantially" is not a new concept. Qualifications like "substantially" are common in legal documents to indicate that minor differences are not important. In this sense, "substantially" means "for the most part," or "essentially" (as the word is defined in the Oxford English Dictionary). The Share No-Resale Clause restricts the sale of a product "whose value derives, entirely or substantially, from the content of the Licensed Material." Selling a product which adds only an insubstantial value to the licensed material -- such as changing the product name, adjusting image size, replacing words with synonyms, removing minor sections, or making the Share No-Resale Clause licensed material available via a subscription service -- would be restricted.

What will this do to the Creative Commons?

The Creative Commons is here to stay, but money works and moves in quick and mysterious ways. Some may want complete and total freedom given to others to use their work, others may want no monetary gain of any kind attached to their work but still wish to permit sharing. What this Clause offers is a middle ground, an alternative that seeks to open the door to real collaboration and reward for those who share. Rewards for the original creators and rewards for those who expand and improve upon the generous work of the former. Ideally, if enough material were to use reciprocal, copyleft, sharealike licenses with this Clause along with evidence of financial success, it could cause a shift in the wider approach to intellectual property and copyright law.

The Share No-Resale Clause is licensed under CC-BY 4.0 in accord with how the Creative Commons licenses their own licenses. Attribution goes to: Michael of St. Joseph

Share No-Resale Clause (SNRC)