[cc-community] BY-SA license in the UK has non-waivered collection society fees?
Terry Hancock
hancock at anansispaceworks.com
Mon Aug 18 14:32:58 EDT 2008
drew Roberts wrote:
>> And point out that, if so, this was exactly the sort of thing
>> you've been pushing for on-list for some time.
>
> For some reason, I am having a hard time wrapping my head around
> exactly what you are getting at here. It may just be that I am being
> dense or not attentive enough.
I don't want to go archive diving at the moment, but you have several
times argued that "if a user will have to pay fees anyway (to a
collecting society) then the By-SA license ought to give the author the
right to claim those fees". IOW: if you not receiving the fees means the
user doesn't have to pay any, then no fees are due, but if fees must be
paid then they must go to you (and not dropped into the collecting
society's war chest which may well be used to harm you).
I thought that perhaps this UK license would have just the effect you
had wanted.
HOWEVER...
>> I studied the text for a bit of this (By-SA 2.0/UK) and
>> the NC variant (By-NC-SA 2.0/UK), and I don't think it's true. It's
>> more like clause 2.5 was an accidental hold-over from the NC
>> version, which was left in by accident. (?!?)
IOW, I thought that the SA license would "expressly" grant you the
necessary rights for performance, etc, so that clause 2.5 (the
"non-waiver") would not apply. HOWEVER, after carefully perusing the
By-SA 2.0/UK license, I can't find anything that says that (at least not
unambiguously).
I also looked very carefully at the By-NC-SA 2.0/UK license, and there's
not much difference. Doing a 'diff' turns up a few trivial changes
(capitalization, spacing, etc); one extra definition (for what
"non-commercial" means); and this (the only _functional_ change
in the terms that I can see):
By-SA 2.0/UK says:
> 2.1 The Licensor hereby grants to You a worldwide, royalty-free,
> non-exclusive, Licence for use and for the duration of copyright in
> the Work.
By-NC-SA 2.0/UK says:
> 2.1 The Licensor hereby grants to You a worldwide, royalty-free,
> non-exclusive, Licence for Non-Commercial use and for the duration of
> copyright in the Work. 33c34
Does that do it? Are commercial use rights "expressly" enough granted?
I'm not so sure.
Here's the definition of "non-commercial" that the license provides:
By-NC-SA 2.0/UK (definition #6):
> "Non-Commercial" means "not primarily intended for or directed
> towards commercial advantage or private monetary compensation". The
> exchange of the Work for other copyrighted works by means of digital
> file-sharing or otherwise shall not be considered to be intended for
> or directed towards commercial advantage or private monetary
> compensation, provided there is no payment of any monetary
> compensation in connection with the exchange of copyrighted works.
And for good measure, here's 2.5 again:
> 2.5. All rights not expressly granted by the Licensor are hereby
> reserved, including but not limited to, the exclusive right to
> collect, whether individually or via a licensing body, such as a
> collecting society, royalties for any use of the Work which results
> in commercial advantage or private monetary compensation.
ISTM that most courts would hold section 2.5 to override the earlier
grant in the case of "any use of the Work which results in commercial
advantage or private monetary compensation", simply because it is more
specific.
In fact, it really sounds like the license is contradicting itself,
which is why I wonder if it was a mistake made in converting the
By-NC-SA version to the By-SA version.
>> The good news is that someone who released under this license has
>> expressly allowed you to convert to a later unported or other
>> locale By-SA license. Thus, the waiver is removable if you derive
>> from this work. So, you need not fear using this material in your
>> own mixes.
>
> Right. But you could not use it in any fashion where performance
> rights would be due... (Is that right?)
Depends on what you mean by "it". If you mean the original work, then,
yes, I think you're right. However, if you mean a remix or "derivative"
of the work, then I think you are not right -- because you are free to
adopt a different jurisdiction and/or later version of the license.
>> "a Creative Commons iCommons license that contains the same License
>> Elements as this License"
>>
>> (You can use an _earlier_ alternate jurisdiction license!)
>>
>> This loophole was fixed in 3.0, which now says:
>>
>> "a Creative Commons jurisdiction license (either this or a later
>> license version) that contains the same License Elements as this
>> License"
>
> Are you sure that this is not the same thing expressed differently?
As far as my non-lawyer self is concerned, I'm positive. ;-)
Notice that the only difference is the insertion of a parenthetical
clause to insist on a *later or equal* license version (not an earlier one).
> Is your reading of this latter version saying that you can't release
> your derivative under the license of another jurisdiction?
NO.
I am saying that if you use By-SA 3.0/unported, then you cannot change
to By-SA 2.0/UK -- because it would mean using an _earlier_ version of
the license (which version 3.0 forbids).
This isn't true for the By-SA 2.5/unported -- it would allow you to
convert to an earlier version as long as you also changed to a different
jurisdiction. IMHO, it was just a phrasing error in the license drafting
process, but it does seem to allow this. Since it was changed for 3.0, I
take that as confirmation that it was a loophole, was noticed, and was
intentionally fixed.
>> So, anyway, if you want to avoid this possibility, then use a
>> version 3.0 SA license (probably the best recommendation now
>> anyway).
>
> Yup, except where you use a site that doesn't yet have that option.
So don't use those sites.
> Actually, I think you can use it in any commercial way that would not
> cause performance royalties to come due.
Well, I've argued both ways, but I presently think that is wrong. It
seems like it ought to be stated more ambiguously -- as it is, it is
clearly lawyer-bait.
> And I just went back to read it again and I see you may indeed be
> correct and I mistaken.
Well since I changed my opinion, I don't know which one you feel you
agree with! ;-D
> So, can someone from cc legal please clear this up? Is this 2.5
> section on the uk by-sa in there by mistake?
Or alternatively, is it that the license grant overrides 2.5 whenever
royalties can be avoided within the law?
Cheers,
Terry
--
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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