Can You Fairly Distinguish Commercial vs. Non-Commercial Use In Copyright?

from the not-convinced...-but... dept

One issue that comes up in discussions of copyright quite often is the idea of whether or not you could change copyright law to distinguish between commercial and non-commercial use. In some ways this is quite appealing, and Cory Doctorow's latest column makes the case for at least exploring those distinctions. However, even he admits that there is a gray area, and I wonder if that gray area is really complex. I don't think it would necessarily make copyright law any worse, and my guess is that, at least initially, it would make copyright function better. After all, copyright law itself was really intended for commercial use (though, there are some lobbyists who falsely claim otherwise). It's only in this day and age when everyone has the tools of content creation, reproduction, performance and distribution in their pockets and on every desk that the old copyright laws have been shown to not function properly at all.

So perhaps separating out commercial and non-commercial use is a step in the right direction. But I'm still confused about how you determine what really is commercial use vs. non-commercial use. If I use your information to make an investment, is that commercial use? If I have a blog that uses a bit of your content, but has ads on it, is that commercial use? There are some RSS feeds that declare "not for commercial use!" But, if I put that RSS into my feed reader and read it for work, is that commercial use? It's not really that clear. And given that many individuals and companies feel that any even (borderline) commercial use of their works deserves compensation, you could see an awful lot of lawsuits filed as we try to define the borders. Perhaps copyright law could be written to make the border clear (though, I doubt it). Perhaps the lawsuits would establish clear boundaries as well, after a bit of upheaval and lawsuits. But I think that there will always be new situations that again test the fuzzy border between the two types of use, and drawing any sort of bright line distinction won't really fix very much.

Filed Under: commercial, copyright, copyright reform, non-commercial


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  1. identicon
    hegemon13, 29 Jan 2010 @ 12:13pm

    Direct profit

    I like this idea, but I agree that it would be difficult to define. It would be worth it to implement it, just to stop the crazy, anti-fan lawsuits. To do it right, though, "commercial use" should involve direct profit only. That is, if the profit is made directly from the sale of the content, either in a cost-per piece or subscription model, it is commercial use. Commercial adaptations, such as a movie made from a book, also count. However, ancillary income, even when enhanced by content, should not count. If a torrent site makes money from advertisement, that is not direct profit. Their money comes from the advertising, not the content. Even if their advertising space is more valuable because of the content, I don't care.

    As a writer, the only thing I care about is a publisher snatching my story, printing, and selling it without any compensation. Allowing corporations with the means for distribution to cut an author out would be not be a fair solution, which is why I don't support the full abolition of copyright. Anything else is fine with me. Share my stories for free, show them to your friends, anything to get my name out. But don't start selling copies directly. Although they are not the only opportunity for income for an author, books are scarce goods, and there are still plenty of people who will buy a physical book. Let the author in on the profits there.

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