Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

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

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