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
    Rollie Cole (profile), 30 Jan 2010 @ 11:17am

    Commercial/Noncommercial vs Corporate/Individual

    There are many more solo proprietorships and partnerships then there are corporations, so an individual/corporate division leaves a lot of "business" use on the non-corporate side.

    As someone who taught Copyright Law at a law school, and practiced Copyright Law for several years, I actually favor the commercial/noncommercial distinction and think it could be made to work, SO LONG AS "commercial" is given a fairly limited and specific definition.

    Here are few examples -- selling a copy (and/or licensing it) for a fee would be clearly commercial. But if I were czar of the universe, "using" a copy (e.g. a software program like MS Word) in a commercial place would not be a "commercial" use, especially since the copyright law (in the US at least) is fairly clear about what rights a copyright holder has control of, (reproduction, distribution, et al), and "use" is NOT one of those.

    Reproducing and distributing copies, in my universe, would be subject to a fact-based analysis, with the idea that such activity is only "non-commercial" if in fact bundles without the work in question are being distributed with no change in the fee collected. This would apply to both per-item and subscription bundles. I would put the burden of proof on the party claiming "non-commercial." So "attend a conference, get free software or photos or music or whatever" would have to prove that a number of people came, for exactly the same price, without receiving the item(s) in question.

    I would allow "Superbowl parties," for instance, so long as no fee was charged, or if a fee was charged (say to pay for chips and beer), people were allowed to come without paying if they promised not to consume and chips or beer, to make it clear the fee was for the "chips and beer," not the Superbowl.

    If the organization was regularly in the business of selling chips and beer, and wanted the Superbowl to increase such sales, that would be a different case.

    But I would allow churches, etc. to do "movie nights" so long as the charge was for the refreshments, not entry per se.

    This is NOT a perfect system by any means; but I think it would be better than the status quo.

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