[cc-community] Copyright enforcement and CC BY-NC licenses
drew Roberts
zotz at 100jamz.com
Sat Aug 2 13:12:49 EDT 2008
On Saturday 02 August 2008 12:23:35 Fred Benenson wrote:
> > 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.
>
> IANAL but I do not believe you are reading the collecting society part of
> the BY-NC license properly:
>
> http://creativecommons.org/licenses/by-nc/3.0/legalcode
>
> The Licensor reserves the right to collect royalties, whether individually
> or, in the event that the Licensor is a member of a collecting society that
> administers voluntary licensing schemes, via that society, from any
> exercise by You of the rights granted under this License that is for a
> purpose or use which is otherwise than noncommercial as permitted under
> Section 4(c).
>
> I don't think this section implies that collecting societies can (or will)
> collect on your behalf without your permission. The point is to allow them
> to collect for you in circumstances you would otherwise consider commercial
> -- you reserve the right to collect.
Are you reading the US port? Because while I think ASCAP amd BMI will not
collect for you if you are not a member, I think that in some places, a
collecting society collects for you whether you like it or not and you cannot
get your share unless you sign up as a member and agree to their
restrictions. I think this is where some of the objections arise.
>
> If you've signed up with a collecting society (say ASCAP) then you've
> aligned their interests with yours, or vice versa. You've essentially said:
> please find those circumstances in which I should be remunerated and
> collect fees, then distribute them to me proportionally (ignoring how the
> obvious liquidity of the definition of "proportionally" is) to my work's
> popularity.
>
> And then you go home and release those works under BY-NC.
Also, for instance, from what I understand about how PRS works here, a radio
station for instance, pays a percentage of total revenue in order to have
rights to the music. Enev if that station were to play 25% BY and BY-SA
music, for which no royalties should be due, the contract works in such a way
that there would be no reduction in fees and so no monetary benefit to the
station for playing the BY and BY-SA works over BY-NC or even ARR works. This
is not an equitable situation in my mind.
>
> I don't really see why this is so inconsistent -- to the extent that
> collecting societies were instantiated to protect artists rights in
> situations where their work was being exploited commercially (see: plays
> over radio and public venues), then why complain that they're acting
> against your wishes?
They act against your wishes, for instance, in places where they can by law
collect for all music, members and non-members alike, but only pay out to
members. I have always understood that there are places like this. Am I
wrong?
>
> In other words, if you want to release under NC but you don't want a
> collecting society making money off of your work, then why bother with a
> collecting society in the first place?
>
> Don't sign up; because you can't have your cake (royalty payments from a
> CS) and eat it too (the desire for them not to collect money when you're
> releasing a work gratis).
>
> > 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.
Is the no waiver even in the NC licenses? It is in BY-SA.
>
> The "waiver" was added to make CC licenses compatible with collecting
> societies. It makes it possible to release under CC and still be a member
> of one. Do you object to this?
>
> > 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).
>
> I'm not understanding your objection here.
>
> > 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 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.
> >
> > 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. 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.
>
> If you don't like NC and you don't like collecting societies collecting on
> your behalf, then there is a very simple option: choose neither.
Ahain, as I understand, some people do not have this option where they live.
>
>
>
> F
>
> > Sorry if this slightly moved things off topic.
> >
> > Kev
> >
> > > xan
> > >
> > > jonathon
all the best,
drew
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