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

drew Roberts zotz at 100jamz.com
Fri Jan 25 16:27:32 EST 2008


On Thursday 24 January 2008 18:35:47 Kevin Phillips (home) wrote:
> ----- Original Message -----
> From: "drew Roberts" <zotz at 100jamz.com>
> To: "Development of Creative Commons licenses"
> <cc-licenses at lists.ibiblio.org>
> Sent: Thursday, January 24, 2008 1:20 PM
> Subject: Re: [cc-licenses] Thoughts on new wording RE collection
> societiesetc.
>
> > On Wednesday 23 January 2008 16:57:29 Paul Keller wrote:
> >> dear Drew,
> >
> > Dear Paul,
> >
> > 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.
> >
> >> 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.

Kevin, read my first response to the above by Paul and his first response to 
me carefully.

I think you will find that that was an accidental mis-speak or type on Paul's 
part. He put the wrong license and explanation together.

You don't want to confuse yourself or others any more on the NC issue.
>
> Thanks Paul for the clarification on NC, for a while I've sought an insight
> into the intention and reasoning behind the creation of the NC license,
> from the minds of its creators/authors/lawyers.  What you describe as the
> "overall message" is sort of where I started out last year.  

I think it is exactly not this.

As we have hashed out on the lists over the years, NC speaks to the uses the 
person giving the license is allowing the person using the licensed work is 
allowed to make of it.

It is the person receiving the NC license that can only use the work non 
commercially, not the person giving the license.

> Unfortunately, 
> I quickly discovered "you can use my music for free but if you use it
> commercially then I'd like some kind of return" is about as understated as
> a two page instruction manual for a nuclear reactor.  Many of us have
> struggled with the true meaning of commerciality, the true cost of returns,
> it's been something of an education.

That is a different kettle of fish.
>
> >> 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 agree Drew, I'd actually quite like to have a choice.  It could be that
> for some of my music I'd rather waive my fees completely, so instead of
> having monies drip into the collection societies bucket regardless,

But in some places, until the law changes you can't do this even if you want 
to.

In other places, until the CS's standard contracts change,you can't, even if 
you want to.

In some places, you may be able to. I would be interested in hearing from 
people where this third possibility exists.
> I'd 
> much rather know that the BY-SA license has no fees associated.  Period. 
> No performing rights, no radio payola, no fees.  I understand that's not
> possible in some countries because of their legal system, but surely that's
> a lobbying issue for the public and policy folks.

Bingo! And I would like to see it in as many people's interests as possible to 
have these changes made.
>
> In fact, I'd much rather the NC license worked in this way.  Then it's
> truly "non-commercial", afterall, the last time I checked ASCAP/PRS were
> very much commercial entities. 

Again, you are thinking of NC from the wrong side of the fence.

But, again, is there a reason you are wanting to eliminate commercial use on 
some of your works completely?

I am usually quite happy for people to make some money to help put food on 
their table from my work.

> If I'm anticipating royalties, surely that's 
> a commercial expectation.  BY-SA can be commercially supported, so it seems
> less suited to a completely fixed non-negotiable waiver.  Is there a
> possibility of a true non-commercial license in the near or longer term
> future?
>
> > 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.
> > 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.
> >
> > Is my suggestion at leat clear in idea if not in words to you?
> > I don't see how this would unduly complicate the unported license and
> > would
> > benefit everyone in this situation.
>
> I do think we need a license as described, where free means "of all fees"
> where possible.

Where as, for me, Free has to do with libre and not with gratis. For the most 
part and for every use I have really wanted to make to this point.

> If fees do HAVE to be paid to a collection society then 
> I'd like my share of those fees to be donated to Creative Commons and NOT
> to support the copyright regime/infrastructure.  If that's not something
> which can be written into a license, then how do we go about nominating
> Creative Commons as an alternative collection agency?

Perhaps assign your copyrights to CC with the condition that they put the work 
under a BY-SA license?

I might have said a BY-NC license for what you want, but I think that might 
preven you from doing some things you might want to do with your own work.
>
> Best wishes.
> Kevin

all the best,

drew
>
> >> 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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> >>
> >> --
> >> Kennisland | Knowledgeland
> >> t: +31 20 5756720 | m: +31 6 41374687
> >> www.kennisland.nl | www.knowledgeland.org
> >>
> >>
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