commercial use as (overlap in italics): "primarily intended for or directed toward commercial advantage or private monetary compensation or gain".[1] The Imperial War Museum uses its own 'IWM Non-Commercial Licence' with the following definitions (overlap in italics): "'Commercial' means intended for or directed toward commercial advantage or private monetary compensation", and "'Non-Commercial' means not intended for or directed toward commercial advantage or private monetary compensation."[2] Use of "private" in these instances likely stems from reliance on text from the NC 3.0 version.[3]
The Fleming Collection and National Galleries of Scotland cite charity law in provisions stating they treat other charities (and their trading arms) as commercial organisations and prohibit their use of website materials on that basis.[4]
4.2.7. Unenforceable terms
Certain policy terms are unenforceable, such as terms overriding acts permitted by copyright law.[5] Others raising questions around enforceability may require litigation to resolve.
Bradford Museums & Galleries states that "[b]y agreeing to these terms and conditions you are also confirming that you are over the age of 13 and thus legally able to give permission for your data to be held".[6] Users allegedly agree to terms by viewing the website, similar to Tyne & Wear Archives & Museums's policy: "By choosing to view the collections you have accepted these conditions."[7] East Riding Archives states by "viewing and or purchasing an image from this collection, you are agreeing to comply with copyright licensing regulations".[8] Upon "terminating your viewing", Atkinson Art Gallery requires users to "destroy any downloaded materials in [their] possession whether in electronic or printed format".[9] These terms are often referred to as "browse wrap terms", as they bind the user by virtue of simply viewing the website. Such terms raise concerns around lawfulness, consent and enforcement.
At least two GLAMs attempt to control use of materials on external platforms through policies on their websites. In a section called 'Copyright of Flickr Images', East Riding Archives explains images on Flickr Commons are marked as "'no known copyright restrictions', indicating that we are unaware of any current copyright restrictions on these images, either because copyright has expired, no evidence has been found that copyright restrictions apply, or we own the copyright and have chosen not to exercise that control".[10] The Archives then attempts to condition their use with: "The images that we upload to our Flickr photostream are available for non-commercial research, private study, or educational purposes." The National Archives includes a similar statement for collections uploaded to both Flickr Commons and Wikimedia Commons and limiting reuse "for the purposes of research, private study or education (non-commercial use) only".[11] On Wikimedia Commons, all 381
- ↑ Download this image, 47. Royal Armouries (Closed licences)
- ↑ Imperial War Museum Non-Commercial Licence, 21. Imperial War Museums (Closed licences)
- ↑ https://creativecommons.org/licenses/by-nc/3.0/legalcode
- ↑ Terms & Conditions, 14. Fleming Collection (All rights reserved); Copyright & image licensing, 34. National Galleries Scotland (Closed licences)
- ↑ A court will not compel a party to act according to a term that is deemed unenforceable. In some cases, an entire contract may be unenforceable, such as when notice, the offer or acceptance of the contract itself is deemed insufficient.
- ↑ Terms and Conditions, 6. Bradfords Museums & Galleries (All rights reserved)
- ↑ Search our collections, 56. Tyne & Wear Archiive & Museums (All rights reserved)
- ↑ Archives online, 12. East Riding Archives (All rights reserved)
- ↑ Terms & Cons, 3. Atkinson Art Gallery (All rights reserved)
- ↑ Archives online, 12. East Riding Archives (All rights reserved)
- ↑ Creative Commons and photo sharing, https://www.nationalarchives.gov.uk/legal/copyright/creative-commons-and-photo-sharing/
