"Public/Private" and "Commercial-Non-Commercial" (and Everything In Between)

Earlier in the week, this Kat had the pleasure of participating in a public debate at the Baker & McKenzie premises in London on whether the Meltwater decision (see IPKat here) "marks the end of browsing as we know it". Rhetorical flourish notwithstanding (for which this Kat stands accused as charged), one issue did not really make its way to the debate, probably because it was not central to the the thrust of the discussion. That issue is the interplay between the personal-private/public and commercial/non-commercial axes in connection with the exercise of copyright.

The most prevalent common ground for both of these axes is provided by the ubiqitous "Terms of Use" that accompany a website. [As an aside, how many of you have never actually read a "Terms of Use"--raise your virtual hands?] A common provision in the "Terms of Use" states, to the effect, that "you may access and use the Services solely for your private/personal, non-commercial use."

Focusing as well on personal-private v public use in various copyright and related statues, we find a similar form of exception for certain defined activities with respect to a copyright work, which are for "private and/or personal" use. There is also the time-honoured restriction in the performance right of a copyright work to public performances only. Lurking further in the background are more general principles for the protection of private activities, whether these principles are grounded on case law, contistitutional protection, or codified human rights protection. This multiplicity of sources in turn yields various definitions of what is meant by "private" and "personal", my favourite being an Israeli decision that held that piping in music (in the pre-digital days} from the national radio channel to individal guest rooms is a public performance.

The "commercial" v "non-commercial" distinction seems to have enjoyed most traction in the context of determining fair use or fair dealing. While the importance of this distinction under U.S. law diminished after the Supreme Court decision in the "Pretty Woman" case (Campbell v Acuff-Rose Music, Inc.) in 1994 here, it still seems to occupy a more central role in the jurisprudence in other jurisdictions. Indeed, the Court of Appeal in Meltwater dismissed the claim of fair dealing by stating that "the [trial] judge rejected the fair dealing defence on the ground that the dealing was for commercial purposes and was encouraging end-users the infringe the Publishers'copyright. I agree ...." The distinction also comes into play when a court is asked to determine the amount of statutory damages to be awarded, where a "non-commercial" use may be viewed more leniently, unless the court wants to use statutory damages as a deterent for certain kinds of infringing conduct.

And so to the question: what is the overlap, if any, between these axes, each of which distinguishes between certain permitted and forbidden activities? The issue is most joined in the context of the generic provisions in the "Terms of Use"--usually, the activity must be both private/personal and non-commercial for the user's activity to be permitted. I would reasonably reckon that the intention of the provision is to forbid me to reproduce the contents in a commercial manner, even if I do it by myself and in the confines of my domestic lair. But if that is what the provision intends, then why is it not explicitly drafted to cover this particular situation?

Let's drill down a bit and to consider the following scenario. I download and read the online contents from a site dedicated to medieval Catalan history. In reading about medieval Girona, I have an literary epiphany that leads me to write, from the confines of my home (the reclusiveness of Emily Dickinson serving as my creative inspiration), a best-selling novel about love, deceit and everything in between, all around the organizing theme of the back alleys of late 13th century Girona. Have I exceeded the scope of the permission in the Terms of Use? Reason suggests no, but the provisions of the Terms of Use do not rule out that I have.

More generally, the analytical contours of the two axes yield various possible overlaps between the two which, to the best of my knowledge, have never been comprehensively explored. Once again, we seem to have a situation where there is an ever-expanding disjunction between what is covered by our copyright laws and the manner in which copyright plays itself out in its broader context of creation, commercialization and reader and user consumption.

More on Emily Dickinson here.
"Public/Private" and "Commercial-Non-Commercial" (and Everything In Between) "Public/Private" and "Commercial-Non-Commercial" (and Everything In Between) Reviewed by Neil Wilkof on Friday, November 18, 2011 Rating: 5

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