[cc-licenses] Thoughts on new wording RE collectionsocietiesetc.

Kevin Phillips (home) tacet at qmpublishing.com
Sun Jan 27 18:06:26 EST 2008


----- Original Message ----- 
From: "drew Roberts" <zotz at 100jamz.com>
To: "Development of Creative Commons licenses"
<cc-licenses at lists.ibiblio.org>
Sent: Friday, January 25, 2008 9:27 PM
Subject: Re: [cc-licenses] Thoughts on new wording RE
collectionsocietiesetc.


> 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.
>>

[snip]

>> >>
>> >> 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.

Hi Drew,  I've read it a number of times and it doesn't seem to be reversed
until the final "whenever...".  NC does not waiver royalties, so it's valid 
to say
"you can use my work for free for non-commercial uses, but if you
use my work commercially I'll get paid".

So, people using NC licensed materials commercially for performance or
webcasting have to pay fees for doing so via the current fee
collection infrastructure.

There is no such expectation written into the SA or BY license types for
payments of any kind to be made to the original author via collection
agencies afik.

>>
>> 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.

I understand the NC license as working on two levels.  Firstly, at the remix
level, you can take my recording and remix it, but you have to maintain
the license integrity and you can't resell either my original version
or your remix - or make money indirectly via web-ads etc.

Secondly, at the use level, if a dj finds one of my recordings which
 is licensed as NC,  and "uses it comercially" by playing it on her 
google-ad-
sponsered radio show, she must pay a fee (because it's a performance and
there is no royalty waiver).

Of course technically speaking, the dj isn't supposed to "use it 
commecially"
but then Paul's "clarification" which I've not picked up from previous
discussions covering this - "but if you do I will get paid" - comes into 
play.

I've always thought such a cavat could really only be useful to musicians
who are already signed up to the collection societies.  From the point of
view of a hobbyist or amateur musician, it seems inappropriate.

Maybe the NC license was originally written with signed up musicians
feeding material into CC in mind.  Much like those who contribute
material to ccMixter for remix (DJ Vadim, Bucky Johnson etc).

>> 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.

Stinky fish, at that.

>> >> 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.

I know, I've read a number of instances where it's so tied to the old (c)
system in some countries it's just not fair or funny.

> 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.

I'd be happy to start sending emails and badgering MPs here in the UK if we
could decide on some kind of common policy/approach.

>>
>> 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.

I'm not talking about my use or rights as the author, I'm thinking of the
radio station or podcaster wanting to play my NC licensed songs and
remixes who has no choice but to pay un-waivered royalties to
collection societies.

This could be considered the wrong side of the fence, but I'm concerned
about licenses and the impact they have from all angles.

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

Yes, in order to support a radio station which is completely free to run and
use (or as near possible) the first step is to clear the material of all 
fees
and royalty expectation.

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

Me too, but I also suspect there's a real need for the polar opposite, where
some people already have the food and they want to play and experiment with
a hobby.  Internet radio is being pulled away from the sand pit, it's so
expensive here in the UK to stream radio Pandora just pulled the plug.
What chance does a hobbyist have?

I intend to release future recordings as BY-SA because there's a royalty 
waiver,
in the hope that some day we'll be able to remove compulsory fees and allow
an opt-out of the existing regime for the hobbyists and enthusiasts.

Something else to consider, do you think there should actually be a BY or SA
license which has non-waivered compulsory fees.  I'm thinking of those
commercial artists again who actually might be open minded enough to
want to allow remix sales and commercial applications.  Lets say they'd
be happy to live off the royalties alone.

>> 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.

That's cool.  NC is by no means a libre license.  We all make our choices,
CC is opening up these options and to an extent ripping up the rule book.

>> 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?

BY-SA has a waiver for fees, this defeats the objective.  I'm saying pay the
compulsory fees to CC instead of the catch-all collection society pot.  In
order to do this I'd need to release under NC because only the NC
license afik has the compulsory performance and webcasting royalties.
Again another reason to introduce a non-waivered BY and SA, and it'd
keep the collection societies happy.  But if we're forced to accept fees
being compulsory we want a way to donate ours to CC.

However, I could still sell remixes and do commercial things too.

> 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.

I'm not comfortable releasing any more NC works, only if I have to.

Thanks for you time.

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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