[cc-licenses] PROs [was: Thoughts on NC]

zotz at 100jamz.com zotz at 100jamz.com
Mon Apr 16 07:50:48 EDT 2012

On Fri, 13 Apr 2012 09:02:59 -0700, Diane Peters
<diane at creativecommons.org> wrote:
> Moderator note:  I'd like to merge this discussion about performance rights
> organizations with related discussion still taking place on *Re: Thoughts
> on NC*.  Please use this thread for proposals and feedback on the
> collecting society proposal contained in d1 (found in Sec. 2(b)(2)).  All
> related posts have now been moderated through.
> As to the substance of the discussion itself, one central problem
> identified is exclusivity. Many collecting societies demand full assignment
> (the exclusive transfer) of rights over an author's work(s).  This problem
> predominantly (if not only) arises with societies representing authors and
> composers of musical works.  But wherever this is the case, the author
> simply has no ability to use alternative or additional forms of licensing
> like Creative Commons because they don't have the rights they need to do
> so.[1]
> CC licenses, on the other hand, are non exclusive and can be used alongside
> other licensing models where those models so permit.  For the most part,
> it's up to the creators to choose (or not) to participate in a collecting
> society that requires exclusivity.  Ideally, we would like all creators to
> have the ability to choose our licenses if they think our licenses are
> right for them.  But there's nothing CC can do once exclusivity is the path
> chosen.[2]  No revision to the definition of NC itself or in the way CC
> licenses treat royalties can change the reality that where collecting
> societies take an exclusive assignment of rights, the creator is no longer
> able to use CC.
> The question is then one of how CC licenses operate for those authors who
> are members of collecting societies but remain free to apply a CC license
> in at least some situations.  The treatment in 4.0d1 is exactly the same as
> in v3.0:  in NC licenses, the right to collect is waived where possible for
> NC uses and otherwise fully reserved; and in the commercial licenses, the
> right to collect is waived for all uses where possible and otherwise fully
> reserved.[3]  Collecting societies (through via their members using CC)
> retain the right to collect royalties for commercial uses under all NC
> licenses, and where no waiver is allowed under the commercial licenses as
> well.
> Continuing with the existing 3.0 approach seems reasonable and fair on
> balance: for those rights the licensor is expressly allowing, any
> corresponding right to collect is waived (but only where possible), and
> otherwise not.

No, the existing approach is not reasonable at all. Even for the Free
BY and BY-SA licenses. I say this because the right to collect is waived
unconditionally. The reasonable approach would be to waive the
collection of royalties only where it benefits the actual licensee.
There are situations where the licensee will have an existing blanket
license with a CD/PRO such that the amount they pay in royalties will
not go down if they play some Free BY and BY-SA. In these situations the
ARR folks just get more money, the Free cc licensees pay the same amount
and save nothing. The money that could have gone to a BY or BY-SA
licensor just goes to an ARR person instead.

That is why I say the current approach is not reasonable.

  Shifting to another model, e.g., one that would allow
> licensors to reserve all rights to collect for uses the licensor is
> specifically encouraging seems to undermine the permissions being granted
> and leaves licensees exposed more so than the current provision already
> does (through its reservation when waiver is not possible).

My proposal would alleviate that problem for those willing to abide by
a Free cc license and not already in an agreement with a CS/PRO that
makes any savings on their part impossible anyway.

It would not help in the situation where a CS/PRO is brain dead and
insists on not changing with the times. I can see clearly how a CS/PRO
could work with dual licensed works where one of the licenses is to
their liking and which they administer and the other is a cc license,
even one of the Free ones, which they do not administer (but which they
could also administer for compliance if they were really with it.) 
> Eager to hear thoughts in return.

If you see any flaws in the above thinking I would dearly like to hear
them as I think this makes a lot of sense but it never seems to gain any
> Diane

all the best,

> [1]  See
> http://wiki.creativecommons.org/Before_Licensing#Are_you_a_member_of_a_collecting_society.3F_If_so.2C_does_it_allow_you_to_CC-license_your_works.3F
> [2]  Though we are trying to work with collecting societies that demand
> exclusivity through time-limited pilots that we hope have the effect of
> encouraging a relaxation of their requirements.
> wiki.creativecommons.org/Collecting_Society_Projects
> [3]  Note that the language in d1 is drafted so that it does not need to be
> modified in each of the six licenses, unlike the current 3.0 structure
> where the provisions are tweaked slightly and moved to different locations
> in the license depending on whether commercial uses are allowed or
> prohibited.
> On Tue, Apr 10, 2012 at 6:54 PM, Gisle Hannemyr <gisle at ifi.uio.no> wrote:
>> On 10.04.2012 00:47, Blaise Alleyne wrote:
>> > I'm not sure there's anything that can be done from the CC side on
>> > opening the possibility of some sort of dual licensing, at least
>> > with respect to free CC licences...
>> That won't fly with most PROs.  Most PROs insist that you do
>> not dual license the specific rights you've already assigned to
>> the PRO to others (i.e. the right to collect royalties - they
>> don't care about other rights, such as so-called "big" rights).
>> I've discussed this extensively with TONO (the Norwegian PRO), and
>> they say that they think the problem is with the CC licenses.  If
>> the license was changed to allow the PRO to collect royalties, then
>> TONO could not object to its members CC licenses, because then the
>> CC license would not contest the license the performer/composer
>> already has assigned to TONO (i.e. there would be no conflict).
>> That is why I have proposed this change for version 4.0.
>> > from what I've gathered, it's more of a problem with PRO membership
>> > requirements and the assumption that they'll manage all performance
>> > rights for artists... not sure how prevalent that is among other
>> > PROs besides SOCAN...
>> As far as I know, it is a very common requirement.  The only PRO I
>> know about that allows for parallel licensing is ASCAP in the US.
>> PROs are member-governed organisations.  This means that the
>> requirements for membership is what the majority of members
>> decide should be the requirements for membership.  Most members
>> of TONO I've talked to seems to like the present requirements,
>> so I don't expect this to change soon.
>> --
>> - 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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