<nettime> What's the meaning of "non-commercial"?

[rasmus fleischer <rasmus.fleischer {AT} post.utfors.se>]

In a recent book published by Creative Commons in France (scroll down for 
URL), there is a text titled "What's the meaning of non-commercial?", 
written by a lawyer working with the Swedish Creative Commons. The 
starting point is a question that was raised in a blog post of mine: Can 
we really divide the world into two spheres, one "commercial" and one 
"non-commercial"? Examples range from RSS flows and web advertising to 
public education and television.

Personally, I'm astonished that so many people (including a large part of 
the net's "copyfighters", and many nettimers too) by default put 
NonCommercial-licenses on every line of text they produce -- seemingly 
without a thought on what consequenses such that license may bring.

Neither does Lawrence Liang's recent "Open Content Guide" reflect the 
problematic at all: 
http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide/04- 
chapter_3/

Consider how Freeculture.org, the "student movement for free culture", 
makes the NonCommersial-license the default choice, and mandatory(!) for 
participating in their contest at http://undeadart.org/

For a clear case of how NonCommercial-licensing may turn into pure 
hypocrisy, check these texts (and remember how the Beastie Boys were 
themselves sued for "commercial" sampling): 
http://www.wired.com/wired/archive/12.11/sample_pr.html 
http://detritus.net/pipermail/rumori/2004-October/001429.html

OK, now the text:

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Mikael Pawlo: WHAT IS THE MEANING OF NON-COMMERCIAL?

BACKGROUND

One of the cornerstones of the Creative Commons is noncommercial sharing. 
During the adaptation of the license complex into Swedish law, I was 
asked: what is the meaning of non-commercial? The question is fundamental 
to Creative Commons but the answer proved to be very complex. It is a 
question of legal and common definitions and the interaction between them 
through the eyes of users. I first stumbled over the question through the 
Swedish blog Copyriot.[1] In a submission by blog owner "Rasmus" titled 
"What is the meaning of non-commercial?"[2] Blogs are very important to 
the Swedish iCommons adaption, since Swedish bloggers have been very early 
adopters of the Creative Commons licenses. Swedish bloggers are not a 
homogenous population, but when it comes to licensing their content 
several bloggers have chosen an U.S. Creative Commons license.

[--- cutting a couple of pages on copyright in Sweden ---]

One way of addressing the issue regarding copyright, if you do not like 
the expansion of intellectual property rights, is by offering new ways of 
licensing content. The copyright proprietor may, as discussed above, 
freely decide how and when his works should be distributed. Through the 
free software movement a new way of looking at the distribution, 
development and essentially -- sharing. Free software is a matter of the 
users' freedom to run, copy, distribute, study, change and improve the 
software. [5]

More precisely, it refers to four kinds of freedom, for the users of the 
software:

* The freedom to run the program, for any purpose (freedom 0).

* The freedom to study how the program works, and adapt it to your needs 
(freedom 1). Access to the source code is a precondition for this.

* The freedom to redistribute copies so you can help your neighbor 
(freedom 2).

* The freedom to improve the program, and release your improvements to the 
public, so that the whole community benefits (freedom 3). Access to the 
source code is a precondition for this.

Free software is very simple in its construction. It uses the provisions 
of copyright law whereby the author has an exclusive economic right in his 
work. In copyright law, computer programs are regarded as literary works. 
Thus, the author of a computer program can enter into any agreement 
regarding his work. One such agreement is the GNU GPL. GNU GPL stands for 
GNU General Public License. The GNU GPL is the license agreement that 
implements the four freedoms above to the licensing scheme of computer 
programs. The European debate on interoperability ended in 1991, when the 
European Union introduced a directive on the Legal Protection of Computer 
Programs. The directive exempts ideas underlying any element of a computer 
program, including its interfaces, from copyright protection. It also 
specifically permits disassembly of computer programs in order to achieve 
interoperability. Transparency is therefore ensured, but without access to 
the source code of the computer program it would still be hard to 
disassemble and interpret the functions of the computer programs. The GNU 
GPL wants to solve this by always forcing the developer to disclose and 
distribute his software.

Creative Commons is an online resource where authors of other works than 
computer programs may designate their licensing terms, in similar ways as 
the GNU GPL. You may for example choose that your works should be 
distributed freely in a non-commercial environment, while commercial 
distribution should be subject to your prior consent and possibly a fee. 
Creative Commons describe its efforts like this: "We use private rights to 
create public goods:creative works set free for certain uses.

Like the free software and open-source movements, our ends are cooperative 
and community-minded, but our means are voluntary and libertarian.We work 
to offer creators a best-of-both-worlds way to protect their works while 
encouraging certain uses of them to declare "some rights reserved." [6]

Thus, a single goal unites Creative Commons' current and The Legal Porting 
and the Adaptation Process future projects: "to build a layer of 
reasonable, flexible copyright in the face of increasingly restrictive 
default rules." In the light of the Swedish debate over the expansion of 
intellectual property rights, the interest for Creative Commons has been 
huge in terms of how much people commonly are interested in license terms.

RASMUS AND THE CASE OF NON-COMMERCIAL

Following this walk in the landscape of Swedish copyright and debate over 
expansion of intellectual property, back to Rasmus' weblog Copyriot. One 
of the most popular Creative Commons licenses in Sweden, used by many 
Swedish bloggers, is Attribution-NonCommercial-ShareAlike 2.0. [7] 
According to this license you are free to copy, distribute, display, and 
perform the work and to make derivative works as long as you give the 
original author credit, you share a like that is if you alter, transform, 
or build upon this work, you may distribute the resulting work only under 
a license identical to this one and as long as you do not use the work for 
commercial purposes. Rasmus is concerned that confusion over the term 
"noncommercial" used in the Creative Commons licenses will make both 
authors and users confused over which rights and restrictions they make 
part of their agreement. In version 2.0 of the license's so-called "legal 
code" (the actual license agreement) an attempt at a definition of 
non-commercial is introduced. [8]

Section 4c states:

"You may not exercise any of the rights granted to You in Section 3 above 
in any manner that is primarily intended for or directed toward commercial 
advantage or private monetary compensation. The exchange of the Work for 
other copyrighted works by means of digital file-sharing or otherwise 
shall not be considered to be intended for or directed toward commercial 
advantage or private monetary compensation, provided there is no payment 
of any monetary compensation in connection with the exchange of 
copyrighted works."

This is a negative definition, limiting the scope of rights granted 
through the license agreement. Still, we can not be sure what 
non-commercial is supposed to mean. Since the term non-commercial is 
supposed to be used in the Swedish adaptation and translation, we need to 
investigate what commercial means in Swedish. Two methods may be used to 
find the meaning of "commercial". One is of course to find the legal 
definition. Another is to look for a common meaning in the Swedish 
language. Rasmus starts out with looking for a language definition, by 
looking up "commercial" in the national dictonary Svenska Akademins 
Ordlista. According to the national dictionary "commercial" is something 
that has to do with "trading". There is also a national encyklopedia 
project in Sweden, called Nationalencyklopedin. According to 
Nationalencyklopedin, "commercial" means something that serves the 
interest of profit and the word is sometimes used in a defamatory sense. 
[9] Rasmus gives several examples of how hard it is to define what 
non-commercial is. Where should one draw the line? One of Rasmus' many 
examples concerns public service television. Sweden has two major 
tevechannels that are held by a foundation which was initiated by the 
state. These tevechannels may be seen by all Swedish citizens. This may 
sound like some country to the east of Sweden (a bit far more east than 
Finland, mind you), but the idea is not to carry thoughts and messages by 
the government but to provide Swedish citizens with PBS like material. 
Public service television shall be non-commercial and non-partisan. 
Commercial television is also available. Commercial television may not use 
content that is licensed under the Attribution-NonCommercial-ShareAlike 
2.0 license, that is rather evident. But may Swedish public service 
television do it? The commercial channels to compete with public service 
television over the public's attention. Further, commercial messages are 
broadcasted even in public service, although not by using commercials, but 
by using "sponsored by"--billboards and product placement. Is this the 
kind of use that Creative Commons would like to endorse with its drafting? 
Probably, but I can not be certain, one is looking for a less commercial 
environment. Perhaps a school or a strict hobby, in the basement, 
not-for-profit environment. There are public schools in Sweden in all 
municipalities. But what about the growing sector of private schools? 
Should the private schools, since they are mostly founded for commercial 
reasons, be banned from using Attribution-NonCommercial-ShareAlike 
2.0-license content, while public schools may use the works freely? Or 
should one distinguish between public schools and private schools founded 
on religous or philosophical grounds on one hand and private schools 
founded to make money to the owner on the other hand? Or should one focus 
on the use as such, instead of the environment? If the use is for 
educational purposes, then maybe the use is not commercial, even though 
the environment is a commercial surrounding? What about non-profit 
organisations? Rasmus provides the example of Amnesty. Amnesty may order 
an expensive commercial from a production company. What if the production 
company uses Attribution-NonCommercial-ShareAlike 2.0-licensed content in 
theAmnesty movie? Would it make any difference if Amnesty produced the 
commercial in-house?

I suspect that Creative Commons is trying to make sure no "unjust" or 
"unfair" use of the works will occur. I can imagine that Creative Commons' 
chairman professor Lawrence Lessig would suffer from severe nightmares, 
should for example the Disney Corporation be able to capture and kidnap 
and make commercial use of content licensed as 
Attribution-NonCommercial-ShareAlike 2.0. Even though preventing such 
"unfair" use of works may be the purpose of the "non-commercial" clause, 
it is not fully clear what uses of works is restricted, as pointed out 
above. It is probably that from the public's view a huge amount of uses 
shall be restricted if "non-commercial" use of the works is prohibited. 
Should you for example be able to put a number of 
Attribution-NonCommercial-ShareAlike 2.0-licensed weblogs' RSS-feeds on a 
web-page packed with advertisements?

This is a can of worms, but it needs to fully addressed. The legal 
definition of "commercial" is not clear. There are not precedents where 
the meaning of "commercial" has been tried. Yet. But one might suspect 
that the interest of profit or other market advantage will matter in a 
legal perspective on the word "commercial". However, when interpreting the 
license agreement, the courts will also look on what the parties did 
reasonably expect and what the circumstances concerning the formation of 
the contract were and how the parties have acted on the market. Hence, the 
word "commercial" may even have different meanings in different cases when 
interpreting the same license. If, for example, one author tells a 
licensee that he may use the work for educational purposes in his private 
school, this will make the use of the work permissable even though others 
should interpret the use as commercial use.

Even though most Swedish citizens will find some common ground in respect 
of what is commercial and what is not, it is a completely different thing 
to do an international interpretation. How should I interpret the term 
"non-commercial" if the works are released on the Internet under a 
Creative Commons license in Australia? Another thing is that the legal and 
language definition will interact.

As stated above, the courts will not only look for a legalese 
interpretation of the word "commercial" but look at the contract situation 
as a whole, when interpreting the situation. Hence, both author and 
licensee might end up in a situation they did not expect when entering 
into the license agreement, should a court need to rule an interpretation 
of the work. Over time, the legal and language definition of "commercial" 
will differ and parts of the legal definition will melt into the language 
definition and vice verse. "Non-commercial" might therefore change for 
already licensed works, following the issue of the license and works, 
especially following international interaction. This creates a problematic 
situation for all parties.

CONCLUSION

When conducting adaptation and translation of the Creative Commons 
licenses cultural and language differences will appear. This may create 
severe discrepancies when it comes to the interpretation of the licenses. 
If Creative Commons is considered an international project, instead of 
several national projects co-ordinated under the same brand name, where 
content should be licensed under the same terms, even by using machines 
for licensing and XML-tagging instead of legal interpretation, then the 
Creative Commons organisation needs to find common definition of central 
terms in the license. It may also need to have a common jurisdiction and 
court for all licenses to make sure that the courts will not implement 
different national interpretation of the term non-commercial and other 
central terms in the license. If you are supposed to use the works the way 
Creative Commons see it, creating derivative works and incorporating the 
works of others in your own projects, then the legal situation must be 
clear. It is important both to the original author and the one creating 
derivative works or creating collective works.

The GNU project has a long tradition of handling such problems. Software 
code in successful GNU projects, such as the Linux kernel, has been 
submitted from a number of jurisdictions and nations all over the world. 
Still, all are using the same GNU GPL v 2. There are translations 
available, but as the Free Software Foundation puts it:

"Legally speaking, the original (English) version of the GPL is what 
specified the actual distribution terms for GNU programs.But to help 
people better understand the licenses,we give permission to publish 
translations into other languages if the translations provided that they 
follow our regulations for unofficial translations." [10]

In the GNU project there may be confusion over how terms shall be 
interpreted. People may have their own view of what "free as in free" 
means and it may be tried in different courts, but you will only find one 
(1) text to interpret. The Creative Commons project may create a much more 
complex situation, when content are cross-licensed over the borders and 
there are even national concerns over the interpretation.

To become really succesfull and to make authors and licensees comfortable, 
I presume the Creative Commons project needs to be able answer questions 
from Rasmus and his fellow webloggers like Tom Cruise (Kaffee) does in A 
Few Good Men when cross-examining Jack Nicholson (Col. Jessep): [11]

Col . Jessep: Are we clear?
Kaffee: Yes, sir.
Col. Jessep: ARE WE CLEAR?
Kaffee: Crystal.

=3D   =3D   =3D

[1] Copyriot is available online under: http://copyriot.blogspot.com/

[2] See 
http://copyriot.blogspot.com/2004/06/icke-kommersiellt-vad-betyder- 
det.html (as of September 27, 2004).

[5] See http://www.gnu.org/ (as of September 27, 2004).

[6] See http://creativecommons.org/learn/aboutus/ (as of October 2, 2004).

[7] See http://creativecommons.org/licenses/by-nc-sa/2.0/ (as of October 
1, 2004).

[8] See http://creativecommons.org/licenses/by-nc-sa/2.0/legalcode (as of 
October 2, 2004). [9] See http://www.ne.se/ (as of October 2, 2004). [10] 
See http://www.gnu.org/licenses/licenses.html (as of October 2, 2004). 
[11] Quotes from the Internet Movie Database, see 
http://us.imdb.com/title/tt0104257quotes (as of October 2, 2004).


* Mikael Pawlo is iCommons lead in Sweden. Pawlo has spent the last 
near-five years at the Swedish premiere law firm Lindahl. Today, Mikael 
Pawlo is general counsel for major Nordic teve production company MTV 
Produktion. Pawlo is contributing editor of Greplaw.org. On nights and 
weekends he works as an editor for the leading Swedish open source and 
free software publication Gnuheter.

The text is licensed under "Creative Commons 
Attribution-NonCommercial-ShareAlike 2.0" [sic!]

Taken from:

International Commons at the Digital Age (red. Daniele Bourcier & Melanie 
Dulong de Rosnay)

Download at: http://fr.creativecommons.org/iCommonsAtTheDigitalAge.pdf







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