[cc-community] Copyright enforcement and CC BY-NC licenses

drew Roberts zotz at 100jamz.com
Sat Aug 2 08:44:08 EDT 2008


On Saturday 02 August 2008 03:33:54 Kevin Phillips (home) wrote:
> ----- Original Message -----
> From: "jonathon" <jonathon.blake at gmail.com>
> To: <cc-community at lists.ibiblio.org>
> Sent: Saturday, August 02, 2008 5:20 AM
> Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses
>
> > On Fri, Aug 1, 2008 at 20:07, drew Roberts  wrote:
> >> They can't be paid royalties as their building on an NC licensed work
> >> precludes them from making commercial use of the work they built on and
> >> so they can't be paid royalties for their work.
> >
> > That is _not_ what the NC license states.
> >
> > One of the ironies of the creative Commons licenses, is that the NC
> > one is the only way that makes an explicit mention of royalty
> > payments, and that they may be collected.
>
> I agree, and this is my favourite nit with the NC license!  It took me ages
> to get my head around this, but maybe it's actually quite simple.  It's
> assumed (I think by the cc license authors) that a professional musician
> will be registered with a collection society.  Therefore their right to
> collect royalties on NC released work is _not_ waivered.  So, the license
> doesn't add or remove any barriers for the collection societies or
> professional musicians it preserves the royalty status quo.
>
> In terms of license clarity, I think this is confusing to the nth degree.
> Keeping in mind that NC is the only license which does not waiver
> collection society royalties, it adds a commercial sting to a _strictly_
> non-commercial license.  I appreciate the licensee vs licensor aspect, but
> none the less it's still confusing when other commercial friendly licenses
> do waiver royalty fees, including the most clear-cut commercial-friendly BY
> license.
>
> Why?  Well, I'm assuming "look no waiver" was added to pacify the
> collection societies and their signed up professional musicians who were
> persuaded in the early days of CC to release stuff into the pool for
> remixing via ccMixter et al.  NC protected their work from commercial
> "leaks", yet still offered them a slice of the payment for
> radio/blog/youtube play etc. (as a contributor).
>
> The double-sided sticky irony :
>
> Whenever I release under NC and a small radio station plays my work, they
> have to pay the collection society irrespective of me being registered or
> not.

The key here is why do they have to pay?

In some places, the law says so.

In other places, their contracts "say so."

Perhaps in some places, they don't have to pay.

Now let's take a BY-SA licensed song where they should not have to pay.

They may still have to pay. Why?

In some places, the law says so.  And the license. See for instance, 3.e.i of 
the 3.0 unported license:

http://creativecommons.org/licenses/by-sa/3.0/legalcode

In some places, they don't have to pay, but it doesn't save them any money 
anyway due to their existing agreements with the CS.

In these situations, the license waives the right to collect but it doesn't 
help the licensor in any financial sense and I wish the license would change 
and not waive the right. 

I have suggested in the past changes to the license wording to correct this 
problem.

Waive the right in 3.e.ii only where it would financially benefit the ultimate 
licensee. If they have a deal with the CS where they can save fees to the CS 
if the license fees are waived, waive them, if their deal with the CS will 
result in them paying the same amount to the CS even if the BY-SA licensor 
waives the fees, then don't waive them.

For 3.e.iii situations, probably always waive the fees. (Or is there a reason 
to treat this situation like 3.e.ii situations? I don't think so, except 
perhaps if the BY-SA licensor is a member of the collection and the deal with 
that society that the licensee has would not result in any savings to him if 
the fees were waived. Is this the case anywhere at the moment?)

> The collection society then keeps the money (*cough* shares the money 
> with their artists).  I cannot opt out of this or waiver the fees, or even
> re-route the collected fees to a charity of my choice without becoming a
> fee-paying signed up member of the society....which is a commercial "merry
> go round" if ever there was one.

None of what I have suggested above will help with this problem except perhaps 
to give us a lever to change how the collection societies work... ??? (I am 
thinking BY-SA artists here and not BY-NC.)

A way needs to be sought to collect "our share" from the collection societies 
without having to join them and submit to their rules on how we can and 
cannot license our works. (We may have to pay their fees for their services 
even without joining mind you.)
>
> A musician wanting a truly "money-free" license, where there's no
> commerciality guaranteed end-to-end (unless negotiated with him/her
> directly) AFIK cannot use any of the CC licenses.

From my understanding, with music, this is not possible in any way in the U.S. 
A person wanting to make money on another's work can do a cover under a 
compulsory license and not negotiate with the song writers at all.

> He/she will be guided 
> towards NC as the solution by the various automated systems and general
> advice and away from SA licenses which are maybe more suitable for his/her
> purpose.
>
>
> Sorry if this slightly moved things off topic.

It has strayed a bit hasn't it.
>
> Kev
>
> > xan
> >
> > jonathon

all the best,

drew




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