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Study Surveys Public's Idea of 'Noncommercial Use'

A key concept in copyright law is that of commercial use. It is a factor in analyzing fair use. And the Creative Commons licensing scheme includes a noncommercial license, by which copyright owners allow others to use their work provided it is for noncommercial purposes. But what is noncommercial? Do the creators and users of copyrighted works agree on what this means?

Last year, Creative Commons set out to explore the public's understanding of this concept. Now, it has published the results of the year-long study, Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use." The somewhat surprising conclusion is that creators and users largely agree in their understanding of noncommercial. Here is what the executive summary says:

The empirical findings suggest that creators and users approach the question of noncommercial use similarly and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial.

In other words, where money changes hands, users understand the use to be commercial. But where no advertising is sold or money made, the line between commercial and noncommercial gets harder to draw. In these situations, says the report, "there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial." And as that uncertainty grows, so does the gap between creators and users in their perception of whether the use is noncommercial.

So what are the implications of this study? From a legal standpoint, probably not much, says Jonathan Bailey at the blog Plagiarism Today. There is already plenty of caselaw on the question and most people appear to agree with how the CC license defines noncommercial. The more direct impact, he says, is likely to be seen when CC drafts version 4.0 of its licenses, a process it is expected to start next year.

Posted by Robert J. Ambrogi on September 17, 2009 at 03:51 PM | Permalink | Comments (1)


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