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. icon
    Crosbie Fitch (profile), 30 Jan 2010 @ 4:23am

    Corporate/non-corporate is a better distinction

    Why, only just the other day in response to a suggestion that copyright should only apply to commercial use (whatever that is), I suggested that a better, ethical distinction is not commercial/non-commercial, but corporation/individual.

    It's not unethical to subject corporations to copyright, but it is unethical to subject individuals to it. This is because corporations, being artificial entities, don't have such a thing as a natural right to liberty.

    Here are examples of how things would work in each case:

    Commercial/non-commercial
    • Individuals and corporations can file-share or stream music with impunity as long as no money changes hands.
    • Individuals are sued when they sell their MP3 player without having first deleted its contents.
    Corporate/Individual
    • Copyright applies to corporations as usual, in all cases, whether commercial or non-commercial.
    • Individuals are never sued for copyright infringement, even if money changes hands, e.g. when selling full MP3 players, or as indie artists singing covers at a concert in exchange for a share of ticket sales. The labels of signed artists would have to pay a license fee, etc.

    Ultimately, even if copyright applied only to corporations it would still be culturally detrimental.

    However, for an interim compromise, a corporate/individual demarcation would be far better than a commercial/non-commercial one.

    It would be an even better distinction for Creative Commons to adopt than NC, given most CC users seem to think NC means 'big nasty publishing corporations' can't exploit their work, but nice, little guys can (if they ask politely). It actually means the little guy will ignore the NC work, whereas the corporation will exploit it without a second thought given the copyright holder has zero litigation budget.


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