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

Paul Keller pk at kl.nl
Fri Jan 25 06:23:45 EST 2008


On Jan 24, 2008, at 2:20 PM, drew Roberts wrote:

> the reason I am personally interested is that I am from the Bahamas  
> and I
> write lyrics which I put under a BY-SA license.
>
> We don't have a BS version of the licenses and I am not holding my  
> breath.

ok, that makes it easier to understand why you are focussing on the  
unported version

>> 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.
>
> I think you have these cases mistakenly reversed, but I know what  
> you mean in
> any case.

yep they are mistakenly reversed. sorry for this

>> 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.
>
> Yes, it does harm me and other like me who want to use BY-SA and  
> would be
> happy to waive our royalties for those performing the music etc. but  
> are not
> OK in cases where those very people we are trying to help still have  
> to pay
> and our would be royalties instead go to those using more restrictive
> licenses.

i find it interesting that you seem to be motivated to release your  
works under cc primarily to ensure that others can have an economic  
advantage. my experience with musicians suggests that for most cc- 
using musicians this is not the primary motivation.

> So, I think the change I propose is really very simple. Leave the  
> license
> basically as is but also don't waive where the "user" of our works  
> cannot
> take advantage of our royalty free offer for contractual as well as  
> legal
> reasons.

and then how do you get to those royalties? for that you would need to  
be member of a collecting society (which in most cases will not let  
you use CC licenses. The only exceptions here are currently KODA (dk),  
BUMA/STEMRA (nl) and ASCAP/BMI (us). if you are a member of one of  
these societies you would probably be well advised to use CC licenses  
that are ported to the jurisdiction where the society is based

> So, someone using all BY-SA works in their own venue might not need  
> to sign
> with a collection agency at all and could avail themselves of the  
> offered
> waiving of rights. Someone who signed a blanket license with an  
> agency and
> cannot take a discount as a result of playing my BY-SA works would  
> pay no
> more or no less and I should be able to collect my share from the  
> society.

but this scenario should be possible with the existing language.  
someone who plays exclusively non-NC licensed stuff does not need to  
pay. in the case of mixed repertoire is really not a problem of the  
licenses but of the unwillingness or inability of CSes to look at  
repertoire on a track by track basis. if you were a member of a  
society they would probably pay you royalties regardless of what the  
license says. I do not think changing the unported licenses (and that  
means making them even more complicated) would change the realities on  
the ground.

> Is my suggestion at leat clear in idea if not in words to you?

yes it is, but as you can see from the above i do not think that  
changing the licenses is the right remedy here. would be interesting  
to hear what others on this list think...

cheers,
paul




>
> I don't see how this would unduly complicate the unported license  
> and would
> benefit everyone in this situation.
>>
>> all the best,
>> paul
>
> all the best,
>
> drew
>
>>
>> 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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>>
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