What is the meaning of non-commercial?

Mikael Pawlo (X)

Résumé

L'un des angles fondateurs de Creative Commons est le partage de type non commercial. Lors de l'adaptation des licences au droit suédois, on m'a demandé quelle était la signification de "non commercial". Cette question est fondamentale pour Creative Commons mais la réponse s'est avérée très complexe. Il s'agit de voir comment la définition juridique et la définition communément partagée peuvent interagir du point de vue des utilisateurs.

Je me suis d'abord posé la question grâce à une contribution intitulée "Quelle est la signification de non commercial" par Rasmus sur le blog suédois Copyriot. Les blogs jouent un rôle très important dans l'adaptation suédoise du projet iCommons, et les bloggers suédois ont adopté très tôt les licences Creative Commons. Ils ne constituent pas une population homogène, et nombre d'entre eux ont choisi l'une des versions américaines des licences Creative Commons. Copyriot a posé une question qui s'est avérée très importante et difficile à résoudre, qu'il importe d'investiguer en profondeur, pas seulement parce que les bloggers sont importants pour la communauté Creative Commons suédoise, mais parce que cette question a des conséquences sérieuses sur l'adaptation des licences Creative Commons en Suède si elle n'est pas traitée correctement. Les informations de base sur le système juridique suédois du droit d'auteur et le débat suédois sur l'expansion de la propriété intellectuelle permettent d'établir un cadre approprié pour la discussion.

Background

One of the cornerstones of the Creative Commons is non-commercial 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-commerical?" (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. Copyriot posed a question which proved important and hard to answer. It was important to investigate it in-depth, not only because bloggers are important to the Swedish Creative Commons community, but since the question also may carry grave consequences for the legal adaption of Creative Commons in Sweden should it not be addressed properly. To set the proper framework for the discussion, first some basic facts on the Swedish legal system in respect of copyright and the Swedish debate over the expansion of intellectual property.

Copyright in Sweden

The creator or author of an original, intellectual work will automatically obtain a form of protection in Sweden. This form of protection is called copyright. Copyright was in Sweden, as well as other forms of intellectual property rights, formed to create an incentive for authors to create new works. The Swedish initiative for copyright is not very different from the U.S. concept of copyright protection "to Promote the Progress of Science and the useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries.", as it is stated in the United States Constitution- (3) The work may in Sweden be literary, musical, artistical or otherwise an intellectual work of art. A book may be subject to copyright as well a song or a play.

The form of expression does not matter in Swedish copyright law. You will obtain protection if the work is fixed in a tangible form. Basically, if you can touch, hear or see the work, you may be eligible for copyright protection. The fixation of the work does not have to be directly accessed to be eligible for copyright protection in Sweden. If the work is communicated with the help of a certain device or machine the work may still be copyrighted in Swedish copyright law. Copyrightable works include categories as: literary works, musical works, dramatic works, sculptural works, movies and other audiovisual works, sound recordings and architectural works. Computer works are regarded as literary works in copyright law. Ideas and discoveries are not protected by copyright law. They may instead be protected by patent protection.

The copyright becomes the property of the author immediately when the work is created in Swedish copyright law. One prerequisite for copyright protection is that the work is original. If the work is too trivial copyright protection will not be granted. Thus, the words "hello world" is not protected by copyright, while this chapter in its whole is. One simple test to see if a work is original enough for copyright protection of used in Sweden is to examine whether two individuals would come up with the exact same work should they decide to write, for example, a chapter on the meaning of non-commercial in a book released by Creative Commons. If the result is likely to be the same (i.e. "hello world"), then the work probably should not be protected by copyright. Copyright may only be claimed by the author or individuals or entities that have derived the rights from the original author or his licensees.

Copyright protection is commonly granted without prior registration. In Sweden, registration of copyright is not possible. In the U.S. registration is available, but not necessary to obtain protection. Many choose to register their works to create a public record of their creation. In the U.S. registered works are eligible for statutory damages and coverage of attorney's fees in case of a successful litigation. Some people, both in the U.S. and Sweden choose to create a so-called poor man's copyright. A poor man's copyright is a simple way of obtaining evidence of first creation, being the author of a certain work, by sending a copy of the work to oneself by certified mail. Although this may be a nice piece of evidence in a court of law or in a settlement litigation, it is not a substitute to registration in the U.S.

Copyrighted works are commonly protected (with some exceptions) until seventy (70) years has passed since the year the author died. This is the copyright term.

Copyright is a protection which grants the author the exclusive right to reproduce to work in the form of copies during the copyright term. It is also an exclusive right to creative derivative works, to distribute perform and display the work in public. The term exclusive in copyright means that the author alone may decide how the work should be exploited. If someone distributes copies in other ways than the author has designated and such distribution is not within the limits of fair use or otherwise permitted by law, an infringement of the author's copyright has occurred. Such an infringement may be punished with liability and damages but also through criminal charges, should the offence be great. The author may exercise his exclusive right to reproduce the work in form of a license agreement. The license agreement is nothing more than a contract specifying how, when and where a work may be used and copied. The license agreement is the most powerful tool in the author's toolbox. The author may charge his audience through his license agreement, he may designate a published and he may even choose to not exercise the exclusive rights granted by copyright law. The author may, if he pleases, choose to stand back and offer his work freely for anyone. Why would an author choose to do that? One reason may be the moral rights.

Authors create works to be rewarded. However, such a reward is not only monetary. Authors also like to be recognised for their creative effort. The moral rights is an idea deriving from the French revolution when the concept of a "droit moral" was introduced, dealing with this issue. The concept has nothing to do with morals, but with the personal and reputional connection between an author and his work. Or as French philosopher Bouffler puts it: " S'il existe pour un homme une veritable proprité, c'est sa pensée. " In short, the moral rights are the right to integrity and the right of attribution. The right of integrity is an absolute, non-transferable right to get respect for the work as such. This means that the work shall not be displayed or used in a fashion the author does not approve of, such as a musical work used in a pornographic movie. The right to attribution is a right to be named as the author of the work. Moral rights are strong in Sweden, much stronger than they are in for example the U.S.

There are no legal concepts of "public domain" or other free or open content concepts. Public domain or similar concepts may instead be achieved by using the license agreement.

The debate in Sweden

The expansion of the protection of intellectual property has spurred quite a debate in Sweden. Some even state the term "intellectual property" is misleading. The use of the word "property" may suggest that the works should be compared to physical property, when in fact the ownership is a state-granted monopoly which is limited in scope and time. The word "rights" are often used in Sweden in conjunction with intellectual property and copyright and this has also been subject of some thinking. Also the use of the term "piracy" is discussed.. (4) However, the key issue of this debate and the million-dollar question is: "when will the protection of current works and innovations stifle the creation of new works and innovations?" Hence, the debate is not very different from the international debate or the debate going on in the U.S.

The debate is sometimes ressembling a religious debate. The scientific and empirical evidence is non-evident and a lot of the arguments are based on logic rather than hard facts. This makes the debate hard to follow and it also puts the policy-makers in a tough spot. How should one legislate when current intellectual property owners want stronger protection but such an expansion may be cannibalising on the creation of future works? To this mix of confused arguments you should add peer-to-peer filesharing and the Internet, software patentability and you end up with a highly complex picture. One separate question is also if copyright is secured for "limited times" when works are protected for seventy years following the year the author died? When it comes to computer programs such protection is similar to perpetual protection, since the computers are developed and changed to the effect the computer programs are worthless within a few years from the release. The same arguments are sometimes used for literature and other works.

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 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 "non-commercial" 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-licensed 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 the Amnesty 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.

This article is available under a Creative Commons license


Notes :

X. 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.

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).

3. See U.S. Const. Art. I, Sec. 8, Cl. 8.

4. See, for example, http://www.gp.se/gp/jsp/Crosslink.jsp?d=192&pid=clist&fid=1&did=83 (as of September 28, 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/tt0104257/quotes (as of October 2, 2004).