Re: [open-regulatory-compliance] A more positive take on CRA FAQs and fl

[Federico Leva <federico.leva@xxxxxxxxxxxxxxxxxx>]

Dick Brooks wrote:
> I don't see a definition in Article 3 for "commercial activity" but I do see
> a definition for:
> (21) 'placing on the market' means the first making available of a product
> with digital elements on the Union market;
>
> Does "placing on the market" == "Commercial activity"

The next point is:

(22) ‘making available on the market’ means the supply of a product with 
digital elements for distribution or use on the Union market in the 
course of a commercial activity, whether in return for payment or free 
of charge;

So, the way I read it, "commercial activity" is a necessary but not 
sufficient condition for "placing on the market". I'm arguing the 
easiest defense for individuals (especially if they're freelancers) is 
not to argue their activities are noncommercial, but that they are not 
the ones doing the "first making available".

Ilu wrote:
> The relevant definition is in the Blue Guide: "Commercial activity is
> understood as providing goods in a business related context."

This is tautological, unless you're saying that "business related 
context" does have a workable definition in EU acquis.

> The FOSS exception in Rec 18 uses exactly these terms seven times.
> Embrace it or not, it's the reality of the CRA.

You suggested that individuals should decide whether to worry or not 
based on whether their activities are commercial. Recital 18 does not go 
in this direction.

Recital 18 contains various expressions where the main condition is 
*who* does the "making available on the market":

* made available on the market, and therefore supplied for distribution 
or use in the course of a commercial activity
* that are not monetised by their manufacturers should not be considered 
to be a commercial activity
* should be considered to be making available on the market only if the 
component is monetised by its original manufacturer

It then continues with a few carve outs of what shall not constitute 
incriminating evidence of "commercial activity":

* should not in itself determine that the activity is of commercial nature
* should not in itself lead to the conclusion that a product with 
digital elements is supplied in the course of a commercial activity
* should not be considered to be a commercial activity provided that the 
organisation is set up in such a way that ensures that all earnings 
after costs are used to achieve not-for-profit objectives

So, if you're an individual and not a non-profit org, you don't get any 
get out jail free card, because there's always something else that could 
be used to consider your activities commercial.

Best,
	Federico