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
    Anonymous Coward, 29 Jan 2010 @ 1:42pm

    Copyright does not apply to information itself.

    If I use your information to make an investment, is that commercial use?

    I don't think "information" is covered by copyright, so the answer is "no", and I don't know why you would think otherwise.

    If I have a blog that uses a bit of your content, but has ads on it, is that commercial use?

    I would say "yes". And that would include Techdirt (although it might be permitted by fair 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?

    Again, that doesn't seem like anything that copyright would cover in the first place (in the US). As far as I know, copyright doesn't grant a monopoly right to "read", but to copy and distribute. So I don't know why you would ask about a commercial copyright distinction in a case where copyright doesn't apply. You really seem to be over-reaching.

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