The Distinction Between Commercial and Non-Commercial Use in Copyright - Part 2 of the Copyright Saga

Please also read Part 1, Part 3, Part 4, and Part 5 of the Copyright Saga.

One of the problems with Copyright, at least the US version with Fair Use, is its distinction between commercial uses and non-commercial uses.

Referring back to the conditions of Fair Use:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

conditions 1 and 4 make distinctions between non-commercial and commercial uses. I will focus on condition 1 in this article and focus on condition 4 in the Economic argument against copyright. I am covering this problem first because it makes the Economic and other arguments easier and it is big enough to require its own article.

The problem with the distinction between commercial and non-commercial uses is that it is very vague. This issue received special attention when Creative Commons studied "That Blurry Line Between Commercial & Non-Commercial Use Still....

If you are skeptical, consider these situations:
Someone draws a picture for you. They do so without expecting anything in return. Meanwhile, a month later, they get hired when an someone sees the picture and is so impressed by it that they hire your friend. Your friend did not intend it for this purpose, but is happy for the job. Was giving you the picture a commercial use or not?

Another friend uses a strategy of giving away their work as an advertisement for new jobs. They too, do not expect anything in return. Eventually they too get a job and their strategy pays off.

Another friend runs their own business and decides to give away some of their work for charity. It eventually gets displayed in a non-profit Children's hospital and the person's name and company are written on their work. Also, what if, instead of just donating something small, they built an entire building and named the building after themselves or their company? Would that be commercial use?

What if two friends both draw pictures and give them to each other? What if each time they gave each other something, they gave the other person a high five several times based on how much they liked it? What if they used pennies or cookies instead of a high five? Is that commercial use?

Is everything you do at work commercial use? Does listening to NPR at work make NPR for commercial use there? Does using anti-virus on your work computer make the use of anti-virus commercial use? What if you own your own computer but still use it for work? What if you bring your work home and work on your home computer which is not normally used for work. Do you suddenly need a commercial license for your home anti-virus software?

Is charging rent in your own house commercial use? What if you are sharing an apartment and you have the responsibility of sending the payments to the landlord and utilities? Is collecting and combining the checks commercial use or not?

What about web-hosting? What about using advertisements to pay for bandwidth? What about showing advertisements for free?

My point here is not that someone could not figure out which of these were commercial and which were non-commercial. My point is that different people will come to different answers. Meanwhile, when considered separately, the answers will probably be different as well, even for the same person. For most of these distinctions, there is no formal way of describing the difference, and people are just relying upon tradition.

The issue seems to be that commercial transactions make some otherwise appropriate actions repugnant. Repugnance, however, is difficult to define, changes over time, and differs between cultures.

If you consider all the different ways that we exchange goods using virtual currencies, verbal contracts, yard sales, free cycling, barter, gift exchanges, advertising, and whatever else, commercial use potentially includes just about everything that we do. Trying to restrict copyright or any associated license for non-commercial use only is confusing now and will only become more difficult in the future.

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Tags: commercial, copyright, economics, fair, non-commercial, non-profit, use


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