[cc-licenses] Defining Non Commercial/ Commercial Rights Reserved for clarity

Andrew Rens andrewrens at gmail.com
Fri Apr 13 16:24:20 EDT 2012


The proposal is that the Non Commercial License or a re-branded successor
should be defined by reference to clear categories of commercial activity
which a licensor wants to reserve.

This will promote clarity for both licensors and licensees on what each can
expect from the other.  This will also make the licences more certain from
a legal perspective so that it will serve both legal and community goals.

The definition would list the kinds of commercial transactions and related
actions that are clearly defined in the vast majority of legal systems.

Proposed Definition: *commercial use is the transactional use of the work;
that is selling, bartering, or letting the copyright work or including the
work in a paid for advertisement (and the like).*

The words "and the like" are in brackets in the proposed definition because
it is debatable whether there should be strictly closed list or a list with
a little room for implicit extensions.

Courts are familiar with the exercise in which they must gauge whether
something belongs on a list of allowed or prohibited actions according to
its resemblance to the items on the list and are generally quite good at
it.

Users may feel that a list that is not closed introduces too much
uncertainty.

Are there other clearly identified transactions that belong on the list?

The issue of whether NC/CRR should permit DRM/TPM's is closely related but
is perhaps better discussed in a thread on whether the licences suite
should treat DRM/TPM's differently in different licences.

If NC/CRR were to preclude the applying DRM/TPM to the work then I suggest
that the definition of the commercial rights to be reserved is not the best
place to set out the prohibition.



-- 
Andrew Rens

ex africa semper aliquid novi (http://aliquidnovi.org)
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