A text transcription follows.
This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we ask: when is non-commercial commercial? And why could that term's definitional fuzziness land you in legal hot water?
But first, here are some of the top stories from OUT-LAW.COM, where you can read breaking technology law news throughout the week.
EU mobile price cap is legal says European Court Advisor
and
Americans reject behavioural advertising.
Europe’s governing bodies did not break EU law when they put a cap on the prices that mobile phone networks can charge for calls made and received while the user is abroad, according to an advisor to the European Court of Justice (ECJ).
Four major mobile networks took a case in the UK against the cap, arguing that it was a disproportionately harsh way of dealing with the problem of high prices and that it undermined countries' rights to govern themselves.
The High Court asked the European Court of Justice to rule on whether the actions violated EU laws on proportionality and subsidiarity. One of the ECJ's legal advisors, Advocate General Poiares Maduro, has said that the European community's actions did not break the law because it achieved a result no single country could have on its own and because the Commission had tried every other avenue before enforcing the regulation.
Americans do not want to be given tailored advertising based on monitoring of their online behaviour, according to what its authors call the first Independent, academically rigorous Survey of consumers' views.
Research conducted by the University of Pennsylvania and the Berkeley Centre for Law and Technology has found that 66% of adult US citizens do not want advertising to be tailored to what advertisers think are their interests. The survey found that once it explained the actual methods used to track behaviour that figure rose even higher, up to 86% after three common tactics were explained to them.
“Contrary to what many marketers claim, most adult Americans (66%) do not want marketers to tailor advertisements to their interests," said the study. It said that is the case even among young adults whom advertisers often portray as caring little about information privacy.
If you want to know more OUT-LAW is running free seminars in October on behavioural advertising and the law. The events take place in London, Birmingham, Manchester, Leeds, Edinburgh and Glasgow. Find out more at OUT-LAW.COM.
Those were some of the top news stories from this week's OUT-LAW News.
Legal language can be funny. Certain words or phrases can get locked into legal discourse without anybody really, truly knowing what they mean. The words become shorthand for a more complex concept or just become a kind of lexical filler used by lawyers because other lawyers have used them in the past.
This can all seem quite quaint fodder for a linguistics PhD for someone, maybe, until you realise that on such barely understood words or phrases can turn million dollar court battles. If you use a phrase in a contract and all parties are not clear what it means, the meaning of the whole contract can suddenly spiral out of control.
These phrases needn't be pieces of arcane legalese, they can be modern, breezy words whose meaning seems perfectly clear. At first.
One such term causing an increasing stir is 'non-commercial', as in: this music is licensed for non-commercial use.
As digital content makes it simple to swap, share and distribute things like music, film, images and software, licensing has grown more important and more complex. People now often use sophisticated licenses such as those produced by US non-profit Creative Commons to allow people to receive their work.
Though people are frequently happy for work to be seen and enjoyed across the world they often want to make sure that if any money is made by it, they are the ones doing the earning. This is where licenses come in that allow non-commercial use.
But, says Cerys Wyn Davies of Pinsent Masons, the law firm behind OUT-LAW, 'non commercial' is one of those difficult phrases where it is hard to say exactly what it means.
Cerys Wyn Davies: I think it is a term that perhaps is taken for granted too frequently. It is a term that I think we, we see quite frequently in license arrangements. Increasingly so with internet usage. People who are willing to make their works so freely available have particular limitations on that use. So they are happy perhaps for people to enjoy their works but what they do not want people to do is to make profit from it. So this concept of non-commercial use is sort of, I suppose, the best wrapper to describe that distinction. I think other expressions around it are sort of 'no commercial gain can be made', 'you are allowed to use if you do not make money', but what if money is raised as an indirect result?
Creative Commons agreed that there was something of a definitional problem. It is the non profit body behind four kinds of license that allow the sharing of content. Underpinning the licenses is the idea that people will want to share their material for various kinds of use but probably can't afford a lawyer to make them a license every time they want to share something. So, for free, you can use one of their licenses. One of them is, you guessed it, a non-commercial license.
Creative Commons commissioned some research into what the users of licensed material and the creators of it think the term means. Mike Linksvayer of Creative Commons outlined the findings of the research.
Mike Linksvayer: If early course level seem to be a pretty strong consensus that uses which make money were obviously commercial and one of the, one of the kind of hot topics would be is using a work with ads placed alongside it? Is that a commercial use because somebody could make money from ads, and that was also rated as strongly commercial. However, when you dive in to more specific use cases such as is are the ads being put on the website by a non profit only for cost recovery then it's still on the scale that we used it is still rated as commercial but there is not strong consensus on it. A licensor thinking of using a non-commercial offering and work under a non commercial license should expect there to be some fuzziness and realize that it gives you good protection against blatantly commercial use but some people are going to use your work in ways that may or may not be commercial.
But the research did not provide answers to the question of how better to define the term, but it perhaps identified more clearly where confusion lies.
Wyn Davies, though, is keen to point out that some confusion around the borders of its meaning does not render the term 'non-commercial' completely useless.
Cerys Wyn Davies: It is certainly not a term without meaning so it certainly would be very clear and I think that there are large chunks of activities that fall very clearly into non-commercial use or fall very clearly into commercial use. So therefore there is not going to be massive dispute over it. There are no cases which define what non-commercial use actually means and there have been a few copyright infringement cases where the defendants have sought to defend the claim on the basis of the fair dealing exception. From those cases it appears to me that the Courts feel perfectly able to make that distinction and use the term to apply to the circumstances.
So why should we care about the meaning or lack of it of this term that appears in licenses? Well, this is important to anyone making the music, videos or writing that is now so easily distributed online. And it is important for users, too, because if users misunderstand it and use material in ways for which they don't have permission they will be breaking copyright law.
So we have a term that is at the heart of licenses whose meaning is in crucial places, ambiguous. So what should the owners of material do?
Wyn Davies says that there is nothing to stop creators themselves being more specific about the meaning of their licenses.
Cerys Wyn Davies: Clarity around the licensing terms is very important. There is not a magic around scoping your license with legal terminology and saying regarding the non-commercial use as a legal term it is far better to be specific about what you mean from music to artistic works, written works, any of these materials. You can spell out what can be done with it.
And what about users? Well, says Wyn Davies, they should remember not to focus just on licenses. Copyright law has exemptions for certain kinds of use. If you think your use is non- commercial it could be that a license is irrelevant because your use is already exempt from copyright law.
Cerys Wyn Davies: In the UK for example there are a number of non-commercial exceptions to copyright. You have got to set this in the context of copyright law generally. So in certain circumstances there, would regardless of the license that is provided, you have the freedom of use anyway.
In the end, though, Creative Commons's Linksvayer said that users and creators themselves are muddling along just fine with what non commercial means. Legal theorising may be successfully taking a back seat to everyday practice.
Mike Linksvayer: We actually know of very few actual disputes between licensors and licensees, so although it is hard to draw a bright line and there has been a lot of wringing of hands over what does non commercial mean. In fact, most people are using it quite successfully. So it is one of those things where it does not work in theory but it does work in practice.
That's all we have time for this week, thanks for listening. Why not get in touch with us here at OUT-LAW Radio? We'd love to hear from you if you know of a technology law story that you think we should cover. Get in touch on radio@out-law.com. Make sure you tune in next time, for now, goodbye.