[cc-licenses] Thoughts on new wording RE collection societies etc.

Paul Keller pk at kl.nl
Wed Jan 23 16:57:29 EST 2008


dear Drew,

As someone involved in coming up with the language you are quoting (at  
least as far as the unported and non-us jurisdictions are concerned)  
let me elaborate why this particular approach was chosen. first of all  
the language you are quoting is from the unported version and as a  
result is primarily intended to cover all those jurisdictions without  
a jurisdiction specific version of the CC licenses. it is therefore  
intentionally broad as it makes no sense to tailor the unported  
language to the situation of a specific jurisdiction (or a group of  
jurisdictions as it exists in the scandinavian countries). this  
tailoring the licenses to specific situation is part of the porting  
process and involves careful coordination between CCi and the  
respective jurisdiction projects.

In General, the licenses are ment to express the intentions of the  
licensors and it was figured that the licenses required clarifications  
on how the core provisions of the CC licenses (royalty free licenses  
for all uses vs. royalty free licenses for noncommercial uses only)  
interact with collective licensing. The main reason for choosing the  
current language was to make the special provisions consistent with  
the overall message of these two types of licenses (NC/non-NC) which  
broadly state 'you can use my work for free' (non-NC) or 'you can use  
my work for free for noncommercial uses only - and i would like to be  
paid (or at least asked for separate permission) if you want o use it  
commercially' (NC):

In some cases it is not possible to allow others to use that work for  
free as there are non-waivable compulsory licensing schemes (like  
private copying levies) in place. for this case both non-NC and NC  
licenses clearly state that the right to collect these levies is  
reserved (in order to not give the impression that the licenses free  
the licensee from paying these levies).

wherever such licensing schemes are waivable, the NC licenses assume  
that the right to collect royalties is waived for all uses and the non- 
NC licenses assume that the right to collect such royalties for non- 
commercial uses is waived and that is it reserved for commercial uses.  
the same construction is in place for collective rights management  
(which usually comes very close to a waivable compulsory license. (In  
some cases, as the one given by giselle it might be structurally  
closer to a non-waivable compulsory license).

this construction is in line with the overall message of the licenses.  
as Gisle points out it may make sense to choose different  
implementations depending on the specific conditions in individual  
jurisdictions and this is exactly what happens in the porting process  
coordinated by CCi. given the scope of the unported licenses i would  
however suggest to be extremely careful before attempting to change  
the unported language as the current wording seems to strike a good  
balance between the 'universal jurisdiction' requirement and the level  
of detail desired. As far as i can see the current wording does not  
really harm licensors, and licensors have sufficient possibilities to  
influence the way thier music can be used by being able to chose  
between NC and non-NC as well as choosing to be a CS member or not.

all the best,
paul


On Jan 23, 2008, at 2:25 AM, drew Roberts wrote:

> On Monday 21 January 2008 09:19:19 Gisle Hannemyr wrote:
>> On 18.01.2008 21:40, drew Roberts wrote:
>>> OK, now I am not sure I have this right, but to the best I have  
>>> been able
>>> to determine with some initial digging here, even if I wave my  
>>> rights, it
>>> will not change the amount due by a radio station that has an  
>>> agreement
>>> with PRS.
>>>
>>> So what I was thinking was to include wording along the lines that I
>>> waive my rights where I can except in cases where waiving them  
>>> will not
>>> result in a savings for the person making first / direct use of  
>>> the work.
>>>
>>> Let's say a business has an agreement with a collecting society  
>>> where
>>> they pay X% of their gross to use any works they represent.
>>>
>>> Let's say I have some BY-SA songs thet the collection society either
>>> directly or indirectly collects royalties for.
>>>
>>> Let's say this is in a country where I can waive my rights.
>>>
>>> Given these circumstances, (Do they exist anywhere in the world?
>>
>> Yes. This is the case in Norway (and I think it also applies to
>> Sweden and Denmark as well - and maybe even Finland and Iceland.
>> This type of regulation is sometimes known as a "nordic style"
>> extended collective license.
>>
>> Some examples:
>>
>> For music, TONO (composers) and GRAMO (performers) here in Norway has
>> a blanket license scheme where a company pays a fixed sum for the
>> right to use ambient music depending on their number of employees.
>> The income this generates is distributed composers and musicians.
>> If you use a CC license, you can not be a member (since the societies
>> require an exclusive license), but the law still say that non-members
>> can claim remuneration from the society (i.e. the law require the
>> society to give non-members equal treatment).  However, since the
>> CC-license says that you waive the right to collct royalties,
>> the societies will tell that by using CC you've waived your right,
>> and they instead redistribute this revenue (called "orphan revenue")
>> to those that have not waived this right (i.e. composers and
>> musicians that do not use CC-licensing).
>>
>> Basically, the Norwegian copyright law says that if a collion society
>> represents a "substantial part" of the creators of the category of  
>> works
>> in question, they are allowed to collect on behalf on /all/ creators
>> (i.e. members as well as non-members of this category of work). One
>> of the societies (Kopinor) explains how it works here:
>>   http://www.kopinor.org/opphavsrett/extended_collective_license
>>
>>> I think they
>>> might here, but I am still checking.) my waiving my rights will not
>>> result in any savings to the company playing my songs, say a radio
>>> station or a store, and do I would not want them waived, even  
>>> though I
>>> can.
>>>
>>> Then it would be up to the companies in my country to negotiate  
>>> deals
>>> with the collection society where they can take advantage of such  
>>> waivers
>>> by me before I would actually waive my rights for them.
>>>
>>> Right now, I would be waiving them but they would still be being
>>> collected. Not what I would want.
>>
>> I agree that this is unfortunate.  I do not like the collection
>> society part of the license at all.  The way it is currently
>> phrased, of you live in a country were copyright law allow
>> colletion societies to use extended collective liceses, the
>> CC license let someone else to make a profit on your work, and you
>> waive the right to receive it.
>>
>> For some reason collection societies do not like Creative Commons.
>> In Norway they use this in their anti-CC propganda.  They tell
>> artists and writers that if they use CC, they will not be eligable
>> for  payment out of of the large revenue streams (in 2005, Kopinor
>> received NOK 195 million = EURO 24 million) under extended collective
>> licenses.
>
> So then, do you think some sort of language like I put forth would  
> make sense
> as a change to the licenses in question? Can you see of a better way  
> to word
> things if so?
>
> Thanks so much for the response by the way.
>
> all the best,
>
> drew
>
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