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


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  1. icon
    LostSailor (profile), 29 Jan 2010 @ 12:42pm

    Distinguishing the Ideas and the Expression

    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.

    A distinction that sometimes gets lost in these debates is that between an idea and the fixed, specific expression of that idea. Once you keep that in mind, it's not all that confusing, though gray areas remain.

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

    Clearly no. No more so that if you use a bit of information or advice you read in the Wall Street Journal to make an investment is a commercial use of the newspaper. You can use the ideas in a bit of content all you want to guide your investment decisions. Unless of course your investment is to copy the content and sell it without permission.

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

    Perhaps. But hegemon13 above is on the right track with the idea that ancillary income, incidental to the site, but not the specific content should be a non-commercial use of that content. It shouldn't be difficult to craft a general rule on this. For example, if advertising is embedded in the content, such that the content becomes a specific delivery mechanism for the income-earning ads, that might be a commercial use of the content. If the ads are in a sidebar, non-commercial use of the content.

    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?

    Clearly non-commercial. This is how RSS feeds are used all the time. See the first example above. A better question on RSS feeds would be if you use the RSS to feed a "breaking news" feature on your web site and it's the only content on the site other than ads. That would be a gray area, one that I would tend to consider a commercial use.

    Perhaps the lawsuits would establish clear boundaries as well, after a bit of upheaval.... 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.

    There are always two parts to law: legislation and interpretation and application by the courts. Many posts here point out examples of "silly" lawsuits, but while you may not like lawsuits (except when someone is suing for greater fair use, such as Google v. publishers and authors), they are a fundamental part of determining what law is in the real world.

    If legislation were passed (and I agree that this would be a step in the right direction), it is inevitable that there would be lawsuits testing the boundaries of what is allowable under the legislation. It might be messy, it might not be maximally efficient, but then real life is rarely so efficient or clean-cut.

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