[cc-licenses] Collecting societies (and PROs)

Gisle Hannemyr gisle at ifi.uio.no
Mon Apr 9 01:16:38 EDT 2012

On 08.04.2012 02:01, Josh Woodward wrote:
> Another significant issue for me, which I discovered only later, was that
> CC-BY is incompatible with performing rights organizations. Logically, as a
> musician, it seems like I should be able to license my music outside of
> Creative Commons and collect the royalties from that. For instance, someone
> comes to me and wants to use my music in a commercial, but they need a
> traditional license because they can't provide attribution. I'm not able to
> collect royalties on that, since CC-BY works can't be registered with PROs.
> Again, being ignorant of all things legalese, there may be a good reason
> for this, but it seems really arbitrary to me.

I believe that the reason CC BY and CC BY-SA is made incompatible with
Performing Rights Organizations (PROs) or Collecting Societies (CSs)
is that there is a policy decision to make those licenses to be
Free Culture Licenses, as defined here:

I understand and respect that policy.

However, I see no reason why a blatantly *non-free* CC license
(e.g. those with a NC or ND clause) needs to be incompatible with
PROs or CSs.

In Norway, the incompatibility with PROs or CSs simply has the
effect that *no* professional music is released under CC.
This is because there is a well-oiled system where the government,
under a blanket license, distributes significant amounts of money
to the composers and performing artists' PRO to compensate for free
use of their works in education, for allowing the general public
to copy works non-commercially.  In addition, the composers and
performing artists' PRO collects under a blanket license for use
of works in broadcasting, network "radio" (i.e. streaming that is
free to the public), bars, restaurants, elevators, etc.  These
funds are then re-distributed to the members of the PRO.  The amount
each member receives is roughly based on how much "use" his/her works
see in monitored channels in education and broadcasting, but there
also some funds given on other criteria (project grants,
start-up stipends to young artists, etc.).  What this means is that
anyone that is eligible for membership in Norway joins the PRO in
order to receive "their" part of this revenue stream.  While
members of the PRO can opt-out and use CC (on the condition of
waiving any funds collected by the PRO for that work), so far,
no Norwegian PRO member has done so yet.

I am a writer, and the author's guild (which I am a member of)
also have a blanket license where it collects money from the
government for the use of secondary works in education, etc.
(secondary use here means printouts from the Internet, and
Xerox copies of printed works), for providing free adaptions
of books to the disabled (i.e. braille and audio versions),
for giving the general public free access to printed works
through libraries, and as compensation for a free on-line service
provided by the Norwegian National Library where individuals
can download ebooks and scanned copies of printed books.

I 2010, the amount distributed to Norwegian author's
under the above blanket licenses was NOK 150 million
(about USD 25 million).  As a member of the Author's Guild,
I would have been entitled to my share of this.  However,
since I license my books and online tutorials under CC BY-NC-ND,
I am not entitled to collect any of this money.  The ironic bit
is of course that if I had received some of this government money,
I could afford to take  create *new* tutorials, etc.

I happen to think that PROs and CSs constitute an important part
of the culture ecosystem.  By providing flexible blanket
licenses to big users such as the government, libraries
(including on-line libraries), education and broadcasters, the
PROs and CSs are instrumental to giving the general public and
the disabled free and perpetual access to cultural works.

I personally think that the CC community needs to understand and
recognise the important work done by the PRO and CS collectives
to make culture freely available to the public, while at the
same time having in place a system for monetary compensation
for creators and performers that can be used to fund creation
of new works.

It is a mystery for me that the CC seems to go out of its
way to stop composers, performing artists, and authors from
receiving money from the government, broadcasters, and other
large and affluent users of cultural works.

In other words - I think that the CC should open a door for
for creators that want to permit verbatim non-commercial
copying of their works, while at the same time be a member
of a PRO or CS and collect the royalties they will be
entitled to as a result of this membership.  Currently, such
creators cannot use a CC license without a loss of revenue.

To do this, the clause 2(b)(2) -  where the creator waives the right
to collect royalties through any voluntary collecting society or
statutory or compulsory licensing scheme - should not be part of
the following licenses (BY-ND, BY-NC, BY-NC-SA, BY-NC-ND).

For this amendment to have any effect, it also necessary to make
it clear that public service broadcasting and public education
(both are in Norway funded by the government and perceived by
the general public as non-commercial) is not exempted from
royalty payment through PROs and CSs under the licenses where
the licensor does not waive rights to collect royalties through
collective licensing schemes.

Here is my proposed text for 2(b)(2) in BY-ND, BY-NC, BY-NC-SA,
BY-NC-ND (BY and BY-SA shall retain the text of the current draft).

  (2) The Licensor waives the right to collect individual royalties
  from You.  However, where the Licensor has entered into a
  voluntary agreement with a collecting society that is entitled
  to collect royalties on behalf of the Licensor, or where there
  exists a statutory or compulsory licensing scheme for
  collecting such royalties, such agreements or licensing schemes
  are not invalidated by this Public License.

- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
    "Don't follow leaders // Watch the parkin' meters" - Bob Dylan

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