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

Kevin Phillips (home) tacet at qmpublishing.com
Sat Aug 2 19:15:58 EDT 2008


----- Original Message ----- 
From: Fred Benenson
To: cc-community at lists.ibiblio.org
Sent: Saturday, August 02, 2008 5:23 PM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses


>>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.

Indeed, the license is careful to suggest I could collect "individually" or 
if I'm a CS member, then I'd be able to claim from my CS.  This potentially 
puts a lot of work in the lap of a radio station wanting to play my music. 
The license is suggesting that the radio station needs to find out if I'm 
signed up to a society, if not then hold the money, I may be knocking on 
their door at a later date for my 35 cents.

In reality, if the radio station even looks at this license they'll assume 
I'm CS registered, because it's the path of least resistance.  They'll log 
the track in their play logs and submit mine along with all the other 
commercial recordings (as per norm).  So if I don't register with a CS where 
does that money go?  The CS holds onto it for a few years, then it gets 
swallowed up.  Standard practice.

>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.
>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?

I understand what you're saying, but please keep in mind that many musicians 
using CC licenses are not signed up to a CS, because it costs money to do 
so.  There's an annual fee, which some folks might feel they can't justify 
on the off-chance they might have earned a few cents in royalties.  Such a 
small amount is insignificant you might argue, I'd say it is from the view 
point of the individual, but not to a CS who is blanket-collecting all these 
fees factoring in the potential number of unsigned musicians out there (and 
the number of small stations and podcasters playing them legitimately).

>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).

I don't want the cake.  I want to donate the cake to Creative Commons, 
including all the cake which the CS might be holding on my behalf.  I'm not 
on a diet, nor am I a Communist or a Freegan, just a generous soul.

>>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.

>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?

No, I don't object to it.  We were talking about irony, and the irony of the 
NC license being setup to support a very commercial set of procedures and 
organisations. None of the other licenses (including arguably the most 
"commercial" BY) have been made "compatible with collecting societies", only 
NC.

>> 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.

Clarity is the grounds of my objection.  I'm not against commercial artists 
releasing works into CC, I think it should happen more.  I'm not against 
them being paid for their work via their CS as they've always been.  I just 
think it's not helpful that the NC licenses has been manipulated aka "made 
compatible" to their ends, which otherwise would be (and is) very strict 
about non-commercial uses.

I think it would have been far clearer to somehow add the CS waiver as a 
component to any of the licenses.  Why isn't there a non-waiver SA license? 
Don't commercial artists want me to make money from remixing their work? 
Maybe some wouldn't mind, given that they'd have their CS fees if I make 
something that's a massive success.

Meantime an amateur musicians could chose BY-NC with the waiver intact, 
because she's not signed up to a CS and she doesn't want commercial uses.

> 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.

Bingo.  I'd love to use SA all the time, but some web sites don't support it 
so I take what's offered.  A lot of musicians don't get the concept of SA, 
so they choose NC thinking it will stop corporates nicking their music. If I 
want to remix music the majority of stuff is NC.

Again, sorry Drew for taking this OT, I hope you're original questions were 
answered along the way :)

Kevin


> xan
>
> jonathon
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