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

Paul Keller pk at kl.nl
Mon Jan 28 05:52:49 EST 2008


On Jan 25, 2008, at 9:43 PM, drew Roberts wrote:

hey drew,

>>> 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?
>
> That would be my problem. One thing I could do is talk to my MP and  
> point out
> the issues.
>
>> for that you would need to
>> be member of a collecting society (which in most cases will not let
>> you use CC licenses.
>
> And here I could point out that they ought to ease upand let me  
> handle my
> works as I like and that they should represent me and my interests.  
> And that
> I am speaking to my MP about the inequity of the situation.

yep, but all of this does not require a change in the CC licenses.  
they basically state that if you use NC you want to be paid for use of  
your works in a venue (+on radio, and on TV and in theatres and in all  
other commercial settings) via a CS or individually and if you use non- 
NC you do not want to be paid. The only exception (in those  
jurisdictions that have them) are non-waivable compulsory licensing  
schemes.

(the best example here is the private copying levy on blanket media in  
a lot of euro countries that gets collected at the moment op purchase  
of the blanket media in the name of all rights holders. the provision  
on compulsory blanket licenses basically states that the CC licenses  
do not intend to mess with these systems)

>> 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
>
> Right, even though I am in the Bahamas, I have thought of trying for  
> ascap or
> bmi for just such a reason.
>
> This leads to another question that I have recently figured I needed  
> to ask
> here on the CC lists but I was not sure which yet.
>
> I am involved with a group:
>
> http://lau-cb.peterlutek.com/
>
> We soft of formed from a mailing list. I don't know any of the  
> others except
> online. We are trying to make music together and as you can see from  
> the
> bottom of the site we are using a Creative Commons Attribution-Share  
> Alike
> 3.0 United States License for all the works we make together.
>
> Does anyone know how well this will work for people using one  
> license but
> living in another country entirely?

not really my expertise :(

>>> 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.
>
> Oh, but they would. Depending. That is axactly the case I am talking  
> about.
>
> Consider this situation if possible:
>
> Rights can be waived.
>
> Collection society can collect for everyone, members and non-members.
>
> Case 1. Venue uses only BY-SA and BY licensed works. Doesn't sign  
> with CS as
> they use the license with the rights waived. Cool.

cool indeed

> Case 2. Venue uses works with a mixture of licenses. Signs a blanket  
> licens
> with the CS. As the license stands now, the venue pays for using the  
> BY-SA
> and BY licensed works but the CS spreads that money out to the other  
> works
> copyright holders and gives none to the people with the BY-SA nad BY  
> works.

indeed. everything else would be impractical (i know it should not be  
but CSes simply do not have their shit together so that they can do  
track by track invoicing). also this is clearly a problem of a  
relatively small minority of CC using musicians (about 85% of them use  
NC and would be happy to be paid via a CS for the use of their works  
in this context). Our primary focuss so far has been making it  
possible for these poeple use NC licenses and be a member of a CS,  
which is still impossible almost everywhere in the world (except US,  
NL & DK)

> With my proposed changes:
>
> Case 1a.  Venue uses only BY-SA and BY licensed works. Doesn't sign  
> with CS as
> they use the license with the rights waived. Cool.

cool again

> Case 2a. Venue uses works with a mixture of licenses. Signs a  
> blanket licens
> with the CS. As the license stands now, the venue pays for using the  
> BY-SA
> and BY licensed works. Because, the venue has a blanket license, the  
> rights
> are not waived on the BY-SA and BY works and those copyright holders  
> at least
> have a case to put to the CS.

would indeed be better, but from our interactions with CS this is  
completely unrealistic. The CS will not take as a member if you allow  
commercial uses of your music for free (which BY or BY-SA). As far as  
they are concerned this is stupid behaviour which threatens the whole  
system of collective management. They will simply not accept that  
music of their members can be played by a commercial venue for free  
(your case 1/1a). So even if CC would change the license now this  
would not result in any practical improvements.

>> 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.
>
> It would give me a legal and ethical case to persue.

given the bigger problem at hand (CC using author not being able to to  
join CSes and thus being kept out of the revenue stream even if they  
would like to do so (as expressed by choosing NC licenses) i do not  
think that it is in the intrest of the CC-community to persue this  
particular case which will not help to improve the image of CC in the  
eyes of Collecting Societies.

> It would also get venue owners to bring pressure on the collection  
> societies
> in order to take advantage of the waivers. This might get them to  
> look at
> the repertoire on a track by track basis.

in my eyes that is a much better strategy. most of the delivery chain  
of music is digital by now and given this the CSes can not go on to  
pretend that track by track collection of royalties is technological  
impossible. Once you have track by track collection of royalties the  
current licenses should work as intended and your problem should be  
solved.

>>> 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...
>
> I too would like to hear more from others.
>
> Re complicating the unported licenses. Would you at least take a  
> stab at
> wording what you think I am trying to get done in as simple a way as
> possible?

i do not think that the wording of the unported licenses is currently  
up for discussion (unless i have missed something, but i think in that  
case you need to talk to someone from CC HQ anyway). Also for the  
reasons given above, i do not think this would be productive. I really  
think that we should not complicate things beyond the simple rule that  
if you use NC you want to get paid for commercial uses and if you use  
non-NC then you dont. If this does not work in practice (your case  
2/2a) then this is something that the direct stakeholders (venue  
owners, CS members) need to adress with the Collecting Societies.

sorry for being that stubborn :)
/paul






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