Re: nettime What's the meaning of non-commercial?
Felix Stalder [EMAIL PROTECTED]
Benjamin Geer [EMAIL PROTECTED]
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
From: Felix Stalder [EMAIL PROTECTED]
Subject: Re: nettime What's the meaning of non-commercial?
Date: Thu, 6 Jan 2005 22:08:48 -0500
How do you define commercial? This has become my favorite thing to ask at CC
events, and I have yet to receive a straight-forward reply.
Wikipedia defines as commerce the exchange of something of value
between two entities. That 'something' may be goods, services,
information, money, or anything else the two entities consider to have
value. In negative terms, any distribution that is not a gift is
commercial. That even includes copying a Linux CD for someone else for
50 cent in order to cover the cost of the CD-R.
I'm not sure if wikipedia is good source here. The above definition of
commercial seems to include even gifts. Wikipedia, or other home-brew
definitions are, at any rate, not relevant. The problem is, there is no
straight-forward _legal_ definition of commercial. I suspect lawyer would
approach this one a case to case basis akin to I cannot define pornography,
but I know it when I see it.
In terms of culture, my sense is that lawyers treat small releases of music,
where the musician/publisher barely recoups his/her costs, as non-commercial.
The problem is, what happens if the artist suddenly becomes successful.
Where's the boundary, 3000 CDs sold, 30'000? My hunch is that DJ Dangermouse
could not have used the White Album even if it would have been released under
the non-commercial license.
Last June, the women who heads the BBC's Creative Archives project was in
Vienna at a conference [1] where she talked about uses of Creative Archive
content she in terms of students using BBC footage for school work. I guess
that would have already been covered under fair use
That seems to be the main flaw in the non-commercial wording, a
confusion of non-commercial and non-profit. Most non-profit projects
are commercial in the sense that they charge money. That would even
apply to say, a teenage garage band that would play cover versions of
songs released under Creative Commons Licenses, but charge $2 entrance
fee to reimburse its transportation and rental expenses.
I don't think the presence or absence of money in the transaction is a
criteria in terms of the commercial nature of a venture. In the US, you can
watch television (at least those broadcasted terrestrially) without having to
pay anyone, yet most of that is commercial.
On the other hand, splitting the gasoline costs in a car ride doesn't make
driving commercial enterprise.
The problem is, rather than getting the lawyers out of the way, the
non-commercial clause brings them back in. Rather than reducing uncertainty,
it creates. Particularly for cultural producers who tend to operate in this
gray zone.
The fact that so many artists and net activists use the non-commercial
restriction for their work comes, in my belief, from an anxiety and
ill-informedness about getting potentially exploited by media
corporations: That, for example, a sound sample or piece of artwork
released under a free license would end up in the next Madonna song and
video without the creator being able to prevent it or getting a share of
the profit. However, the appropriate countermeasure for such
exploitation is GPL-style copyleft, available in the Creative Commons
toolkit as the ShareAlike option. If Madonna would release a video
using ShareAlike-licensed work, she would be forced to do one of the
two following things:
(a) Put her work (i.e. the video) under the same ShareAlike license.
Then it could be legally shared in the Internet, and the video, images
and sound could be reused in new independent works under the same
license.
(b) Pay off the creator of the artwork to grant her a license without
following the ShareAlike terms, because not following those terms
is a copyright violation. Copyright owners of a work always has the
right to relicense their work under different terms (which does, however
not invalidate the fact that the work remains available under ShareAlike
terms).
If you like derivatives.
The only thing that prevents people from using the GPL for
non-software work is that it speaks of the licensed work as the program,
not the work.
I think there are good reasons why artists would not like the GPL in all
cases, mainly around the issue of derivative works. I think it is legitimate
to not want other people improve your work. I know Florian doesn't like the
distinction between functional and expressive works because there certainly
is a (small) body of work that is both functional and expressive. Yet, for
the majority of works, the categories are pretty unproblematic.
I think we should not,
