[cc-licenses] Proposed Non-Commercial Guidelines

Greg London email at greglondon.com
Sat Mar 11 10:47:34 EST 2006


> so i take your point that "use" is broader than the copyright rights
> & drew's earlier point that we should call a "collective work" a
> collective work rather than describing it as a work used verbatim in
> another work...the reason for not itemising each copyright right &
> for not using the term collective work from the Copyright Act was to
> try to make it less legalese and more human-readable. this is similar
> to the approach with drafting the Commons Deed. to address these
> concerns, perhaps we can include footnotes that clarify these terms
> and also include a disclaimer with the guidelines similar to that
> which we include with the Commons Deed.

I know using the copy, distribute, derive is a bit more wordy, but
I think it is important from the point of view of making sure
people understand how it relates to copyright law. "use" could mean
client side remixing, which is "use" in the common meaning of the
word, but is also completely outside what copyright can control.

"use" could also mean that a person "uses" a NC work in a commercial
setting, such as some sort of corporate training. But if the trainer
requires their clients get their own copies of the work, i.e. if
the trainer does not copy or distribute the work, and requires the
students to get the work online, then copy/distribute/derive does not
come into play, and the license cannot prevent this "use".

This is the problem I have with the word "use" in the license and
in the chain of questions. It can be interpreted to mean that the
author has far more rights than they are granted by copyright.
And that can only lead to trouble, as authors and users get completely
turned around by what they can and cannot do.

A NonCommercial license can only prevent commercial copying,
distributing, and deriving. It can't prevent all commercial uses
if those uses do not involve copying, distributing, and deriving.
And to word it any other way will only cause authors to think
they have more control than they do. and that's looking for
trouble.


> not sure i totally understand the client side remixing point. E.(1)(b)
> (i) is talking about requiring someone to pay to "use" (exercise a
> copyright right) a derivative work. if someone creates & performs a
> remix in the privacy of their own home (which probably involves the
> exercise of the right to copy & make adaptations but whether it
> constitutes an infringement of an "all rights reserved" work would
> depend on copyright exceptions; a private performance in their own
> home would not, however, trigger the public performance right) i
> don't quite know where the money is getting charged & thus, how it
> comes within the NC guidelines

This is my understanding of the legalities of client side remixing.
SOmeone please correct me if I'm wrong.

say Alice creates a movie short. She sells it online.
The movie has been designed so that the client can mix the movie
with a song written by Bob. The action on the movie moves in
sync with the music. For the client, Charlie, to perform this mixing,
Charlie will have to get a copy of Bob's song. If Bob's song is
available for free on the internet, but is licensed CC-NC,
Charlie can copy/distribute it to his harddrive, and then pay
Alice for a copy of her movie, and then Charlie can mix the two
works on his harddrive.

Alice's work is Commercial. Bob's song is licensed CC-NC.
Alice is "using" Bob's work in a commercial way, but since
she isn't copying, distributing, or deriving it, the CC-NC
license cannot prevent it.

To word the license that it reads like it *could* prevent it
when it can't is going to cause confusion and trouble with
authors who expect one thing and get something else.

Greg

> but i maybe misunderstood the example....in which case, can you add
> some more details so i can better understand it....
>
> On Mar 7, 2006, at 6:50 PM, Greg London wrote:
>
>>
>>> Having read the Proposed Non-Commercial Guidelines here
>>>
>>> http://lists.ibiblio.org/pipermail/cc-licenses/attachments/
>>> 20060110/02d7a271/NonCommercialGuidelinesclean-0001.pdf
>>
>> I'm a little confused as to the wording of (E)(1)(b)(i):
>>
>>> As a condition of using a derivative work based on
>>> an NC-licensed work, of which the original NC-licensed
>>> work is the primary draw or a substantial amount,
>>> either qualitatively or quantitatively, of that
>>> derivative work, license violation – this is not a
>>> noncommercial use.
>>
>>
>> A derivative work based on an NC-licensed work could,
>> concievably, be a derivative work created by a user
>> performing "client side remixing" on an NC-licensed work
>> in their home. I'm pretty sure that client side remixing
>> is legal even with works licensed All Rights Reserved.
>> (perhaps not, I could be wrong.) This bullet (E)(1)(b)(i)
>> then makes the NC license sound more restrictive than
>> All Rights Reserved.
>>
>> The problem, i think, is the word "use"
>> in the phrase "using a derivative work". Copyright
>> doesn't cover "use" and "use" is pretty damn broad.
>>
>> I think the word "use" needs to be changed to the
>> rights associated with copyright: copy, distribute,
>> create derivative works, probably specifically the
>> word "distribute". But I'm just guessing at this point.
>>
>> Greg
>>
>>
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