Creative Commons - Belgium

["nicolas maleve" <copy.cult AT constantvzw.com>]

salut Nicolas, dag iedereen,

I ll mix my answer in Frenglish

Pour moi, la question de la définition de non-commercial reste pleine de
mystère et pour tout dire, j'ai l'impression que tant qu'une jurisprudence
n'aura pas été définie, cette version des CC restera plutot un argument
rhétorique qu'un réel outil juridique.

tu peux trouver un texte intéressant compilé par l'équipe d'Icommons
France ici:
http://fr.creativecommons.org/articles/sweden.htm
avec l'introduction en français d'un texte publié par les
traducteur/trices suédois.

pour ce qui est de la question des relations entre SABAM et les CC,
regarde sur le site de la digitaalplatform, ils mettent a disposition la
retranscription du débat:
http://www.mediadesk-vlaanderen.be/ic_downloads/verslag%20debat%20creative%20commons%20belgium%20launch%20event.doc

For the non-commercial aspect:
here is the complete text with some of the problems it raises.


The meaning of non-commercial
by Mikael Pawlo

Background

One of the cornerstones of the Creative Commons is non-commercial sharing.
During the adaptation of the license complex into Swedish law, I was
asked: what is the meaning of non-commercial? The question is fundamental
to Creative Commons but the answer proved to be very complex. It is a
question of legal and common definitions and the interaction between them
through the eyes of users.

I first stumbled over the question through the Swedish blog Copyriot (1).
In a submission by blog owner "Rasmus" titled "What is the meaning of
non-commerical?" (2)  Blogs are very important to the Swedish iCommons
adaption, since Swedish bloggers have been very early adopters of the
Creative Commons licenses. Swedish bloggers are not a homogenous
population, but when it comes to licensing their content several bloggers
have chosen an U.S. Creative Commons license. Copyriot posed a question
which proved important and hard to answer. It was important to investigate
it in-depth, not only because bloggers are important to the Swedish
Creative Commons community, but since the question also may carry grave
consequences for the legal adaption of Creative Commons in Sweden should
it not be addressed properly. To set the proper framework for the
discussion, first some basic facts on the Swedish legal system in respect
of copyright and the Swedish debate over the expansion of intellectual
property.

Copyright in Sweden

The creator or author of an original, intellectual work will automatically
obtain a form of protection in Sweden. This form of protection is called
copyright. Copyright was in Sweden, as well as other forms of intellectual
property rights, formed to create an incentive for authors to create new
works. The Swedish initiative for copyright is not very different from the
U.S. concept of copyright protection "to Promote the Progress of Science
and the useful Arts by securing for limited times to Authors and Inventors
the exclusive right to their respective writings and discoveries.", as it
is stated in the United States Constitution- (3) The work may in Sweden be
literary, musical, artistical or otherwise an intellectual work of art. A
book may be subject to copyright as well a song or a play.

The form of expression does not matter in Swedish copyright law. You will
obtain protection if the work is fixed in a tangible form. Basically, if
you can touch, hear or see the work, you may be eligible for copyright
protection. The fixation of the work does not have to be directly accessed
to be eligible for copyright protection in Sweden. If the work is
communicated with the help of a certain device or machine the work may
still be copyrighted in Swedish copyright law. Copyrightable works include
categories as: literary works, musical works, dramatic works, sculptural
works, movies and other audiovisual works, sound recordings and
architectural works. Computer works are regarded as literary works in
copyright law. Ideas and discoveries are not protected by copyright law.
They may instead be protected by patent protection.

The copyright becomes the property of the author immediately when the work
is created in Swedish copyright law. One prerequisite for copyright
protection is that the work is original. If the work is too trivial
copyright protection will not be granted. Thus, the words "hello world" is
not protected by copyright, while this chapter in its whole is. One simple
test to see if a work is original enough for copyright protection of used
in Sweden is to examine whether two individuals would come up with the
exact same work should they decide to write, for example, a chapter on the
meaning of non-commercial in a book released by Creative Commons. If the
result is likely to be the same (i.e. "hello world"), then the work
probably should not be protected by copyright. Copyright may only be
claimed by the author or individuals or entities that have derived the
rights from the original author or his licensees.

Copyright protection is commonly granted without prior registration. In
Sweden, registration of copyright is not possible. In the U.S.
registration is available, but not necessary to obtain protection. Many
choose to register their works to create a public record of their
creation. In the U.S. registered works are eligible for statutory damages
and coverage of attorney's fees in case of a successful litigation. Some
people, both in the U.S. and Sweden choose to create a so-called poor
man's copyright. A poor man's copyright is a simple way of obtaining
evidence of first creation, being the author of a certain work, by sending
a copy of the work to oneself by certified mail. Although this may be a
nice piece of evidence in a court of law or in a settlement litigation, it
is not a substitute to registration in the U.S.

Copyrighted works are commonly protected (with some exceptions) until
seventy (70) years has passed since the year the author died. This is the
copyright term.

Copyright is a protection which grants the author the exclusive right to
reproduce to work in the form of copies during the copyright term. It is
also an exclusive right to creative derivative works, to distribute
perform and display the work in public. The term exclusive in copyright
means that the author alone may decide how the work should be exploited.
If someone distributes copies in other ways than the author has designated
and such distribution is not within the limits of fair use or otherwise
permitted by law, an infringement of the author's copyright has occurred.
Such an infringement may be punished with liability and damages but also
through criminal charges, should the offence be great. The author may
exercise his exclusive right to reproduce the work in form of a license
agreement. The license agreement is nothing more than a contract
specifying how, when and where a work may be used and copied. The license
agreement is the most powerful tool in the author's toolbox. The author
may charge his audience through his license agreement, he may designate a
published and he may even choose to not exercise the exclusive rights
granted by copyright law. The author may, if he pleases, choose to stand
back and offer his work freely for anyone. Why would an author choose to
do that? One reason may be the moral rights.

Authors create works to be rewarded. However, such a reward is not only
monetary. Authors also like to be recognised for their creative effort.
The moral rights is an idea deriving from the French revolution when the
concept of a "droit moral" was introduced, dealing with this issue. The
concept has nothing to do with morals, but with the personal and
reputional connection between an author and his work. Or as French
philosopher Bouffler puts it: " S'il existe pour un homme une veritable
proprité, c'est sa pensée. " In short, the moral rights are the right to
integrity and the right of attribution. The right of integrity is an
absolute, non-transferable right to get respect for the work as such. This
means that the work shall not be displayed or used in a fashion the author
does not approve of, such as a musical work used in a pornographic movie.
The right to attribution is a right to be named as the author of the work.
Moral rights are strong in Sweden, much stronger than they are in for
example the U.S.

There are no legal concepts of "public domain" or other free or open
content concepts. Public domain or similar concepts may instead be
achieved by using the license agreement.

The debate in Sweden

The expansion of the protection of intellectual property has spurred quite
a debate in Sweden. Some even state the term "intellectual property" is
misleading. The use of the word "property" may suggest that the works
should be compared to physical property, when in fact the ownership is a
state-granted monopoly which is limited in scope and time. The word
"rights" are often used in Sweden in conjunction with intellectual
property and copyright and this has also been subject of some thinking.
Also the use of the term "piracy" is discussed.. (4) However, the key
issue of this debate and the million-dollar question is: "when will the
protection of current works and innovations stifle the creation of new
works and innovations?" Hence, the debate is not very different from the
international debate or the debate going on in the U.S.

The debate is sometimes ressembling a religious debate. The scientific and
empirical evidence is non-evident and a lot of the arguments are based on
logic rather than hard facts. This makes the debate hard to follow and it
also puts the policy-makers in a tough spot. How should one legislate when
current intellectual property owners want stronger protection but such an
expansion may be cannibalising on the creation of future works? To this
mix of confused arguments you should add peer-to-peer filesharing and the
Internet, software patentability and you end up with a highly complex
picture. One separate question is also if copyright is secured for
"limited times" when works are protected for seventy years following the
year the author died? When it comes to computer programs such protection
is similar to perpetual protection, since the computers are developed and
changed to the effect the computer programs are worthless within a few
years from the release. The same arguments are sometimes used for
literature and other works.

One way of addressing the issue regarding copyright, if you do not like
the expansion of intellectual property rights, is by offering new ways of
licensing content. The copyright proprietor may, as discussed above,
freely decide how and when his works should be distributed. Through the
free software movement a new way of looking at the distribution,
development and essentially - sharing.

Free software is a matter of the users' freedom to run, copy, distribute,
study, change and improve the software. (5) More precisely, it refers to
four kinds of freedom, for the users of the software:

•  The freedom to run the program, for any purpose (freedom 0).

•  The freedom to study how the program works, and adapt it to your needs 
 (freedom 1). Access to the source code is a precondition for this.

•  The freedom to redistribute copies so you can help your neighbor
(freedom 2).

•  The freedom to improve the program, and release your improvements to
the public, so that the whole community benefits (freedom 3). Access to
the source code is a precondition for this.

Free software is very simple in its construction. It uses the provisions
of copyright law whereby the author has an exclusive economic right in his
work. In copyright law, computer programs are regarded as literary works.
Thus, the author of a computer program can enter into any agreement
regarding his work. One such agreement is the GNU GPL. GNU GPL stands for
GNU General Public License. The GNU GPL is the license agreement that
implements the four freedoms above to the licensing scheme of computer
programs. The European debate on interoperability ended in 1991, when the
European Union introduced a directive on the Legal Protection of Computer
Programs. The directive exempts ideas underlying any element of a computer
program, including its interfaces, from copyright protection. It also
specifically permits disassembly of computer programs in order to achieve
interoperability. Transparency is therefore ensured, but without access to
the source code of the computer program it would still be hard to
disassemble and interpret the functions of the computer programs. The GNU
GPL wants to solve this by always forcing the developer to disclose and
distribute his software.

Creative Commons is an online resource where authors of other works than
computer programs may designate their licensing terms, in similar ways as
the GNU GPL. You may for example choose that your works should be
distributed freely in a non-commercial environment, while commercial
distribution should be subject to your prior consent and possibly a fee.
Creative Commons describe its efforts like this:

"We use private rights to create public goods: creative works set free for
certain uses. Like the free software and open-source movements, our ends
are cooperative and community-minded, but our means are voluntary and
libertarian. We work to offer creators a best-of-both-worlds way to
protect their works while encouraging certain uses of them -- to declare
"some rights reserved." (6)

Thus, a single goal unites Creative Commons' current and future projects:
"to build a layer of reasonable, flexible copyright in the face of
increasingly restrictive default rules."

In the light of the Swedish debate over the expansion of intellectual
property rights, the interest for Creative Commons has been huge in terms
of how much people commonly are interested in license terms.

Rasmus and the case of non-commercial

Following this walk in the landscape of Swedish copyright and debate over
expansion of intellectual property, back to Rasmus' weblog Copyriot. One
of the most popular Creative Commons licenses in Sweden, used by many
Swedish bloggers, is Attribution-NonCommercial-ShareAlike 2.0. (7)
According to this license you are free to copy, distribute, display, and
perform the work and to make derivative works as long as you give the
original author credit, you share a like that is if you alter, transform,
or build upon this work, you may distribute the resulting work only under
a license identical to this one and as long as you do not use the work for
commercial purposes.

Rasmus is concerned that confusion over the term "non-commercial" used in
the Creative Commons licenses will make both authors and users confused
over which rights and restrictions they make part of their agreement. In
version 2.0 of the license's so-called "legal code" (the actual license
agreement) an attempt at a definition of non-commercial is introduced. (8)

Section 4c states:

"You may not exercise any of the rights granted to You in Section 3 above
in any manner that is primarily intended for or directed toward commercial
advantage or private monetary compensation. The exchange of the Work for
other copyrighted works by means of digital file-sharing or otherwise
shall not be considered to be intended for or directed toward commercial
advantage or private monetary compensation, provided there is no payment
of any monetary compensation in connection with the exchange of
copyrighted works."

This is a negative definition, limiting the scope of rights granted
through the license agreement. Still, we can not be sure what
non-commercial is supposed to mean. Since the term non-commercial is
supposed to be used in the Swedish adaptation and translation, we need to
investigate what commercial means in Swedish. Two methods may be used to
find the meaning of "commercial". One is of course to find the legal
definition. Another is to look for a common meaning in the Swedish
language.

Rasmus starts out with looking for a language definition, by looking up
"commercial" in the national dictonary Svenska Akademins Ordlista.
According to the national dictionary "commercial" is something that has to
do with "trading". There is also a national encyklopedia project in
Sweden, called Nationalencyklopedin. According to Nationalencyklopedin,
"commercial" means something that serves the interest of profit and the
word is sometimes used in a defamatory sense. (9) Rasmus gives several
examples of how hard it is to define what non-commercial is. Where should
one draw the line? One of Rasmus' many examples concerns public service
television. Sweden has two major tevechannels that are held by a
foundation which was initiated by the state. These tevechannels may be
seen by all Swedish citizens. This may sound like some country to the east
of Sweden (a bit far more east than Finland, mind you), but the idea is
not to carry thoughts and messages by the government but to provide
Swedish citizens with PBS like material. Public service television shall
be non-commercial and non-partisan. Commercial television is also
available. Commercial television may not use content that is licensed
under the Attribution-NonCommercial-ShareAlike 2.0 license, that is rather
evident. But may Swedish public service television do it? The commercial
channels to compete with public service television over the public's
attention. Further, commercial messages are broadcasted even in public
service, although not by using commercials, but by using "sponsored
by"-billboards and product placement. Is this the kind of use that
Creative Commons would like to endorse with its drafting? Probably, but I
can not be certain, one is looking for a less commercial environment.
Perhaps a school or a strict hobby, in the basement, not-for-profit
environment. There are public schools in Sweden in all municipalities. But
what about the growing sector of private schools? Should the private
schools, since they are mostly founded for commercial reasons, be banned
from using Attribution-NonCommercial-ShareAlike 2.0-licensed content,
while public schools may use the works freely? Or should one distinguish
between public schools and private schools founded on religous or
philosophical grounds on one hand and private schools founded to make
money to the owner on the other hand? Or should one focus on the use as
such, instead of the environment? If the use is for educational purposes,
then maybe the use is not commercial, even though the environment is a
commercial surrounding? What about non-profit organisations? Rasmus
provides the example of Amnesty. Amnesty may order an expensive commercial
from a production company. What if the production company uses
Attribution-NonCommercial-ShareAlike 2.0-licensed content in the Amnesty
movie? Would it make any difference if Amnesty produced the commercial
in-house?

I suspect that Creative Commons is trying to make sure no "unjust" or
"unfair" use of the works will occur. I can imagine that Creative Commons'
chairman professor Lawrence Lessig would suffer from severe nightmares,
should for example the Disney Corporation be able to capture and kidnap
and make commercial use of content licensed as
Attribution-NonCommercial-ShareAlike 2.0. Even though preventing such
"unfair" use of works may be the purpose of the "non-commercial" clause,
it is not fully clear what uses of works is restricted, as pointed out
above. It is probably that from the public's view a huge amount of uses
shall be restricted if "non-commercial" use of the works is prohibited.
Should you for example be able to put a number of
Attribution-NonCommercial-ShareAlike 2.0-licensed weblogs' RSS-feeds on a
web-page packed with advertisements?

This is a can of worms, but it needs to fully addressed. The legal
definition of "commercial" is not clear. There are not precedents where
the meaning of "commercial" has been tried. Yet. But one might suspect
that the interest of profit or other market advantage will matter in a
legal perspective on the word "commercial". However, when interpreting the
license agreement, the courts will also look on what the parties did
reasonably expect and what the circumstances concerning the formation of
the contract were and how the parties have acted on the market. Hence, the
word "commercial" may even have different meanings in different cases when
interpreting the same license. If, for example, one author tells a
licensee that he may use the work for educational purposes in his private
school, this will make the use of the work permissable even though others
should interpret the use as commercial use.

Even though most Swedish citizens will find some common ground in respect
of what is commercial and what is not, it is a completely different thing
to do an international interpretation. How should I interpret the term
"non-commercial" if the works are released on the Internet under a
Creative Commons license in Australia?

Another thing is that the legal and language definition will interact. As
stated above, the courts will not only look for a legalese interpretation
of the word "commercial" but look at the contract situation as a whole,
when interpreting the situation. Hence, both author and licensee might end
up in a situation they did not expect when entering into the license
agreement, should a court need to rule an interpretation of the work. Over
time, the legal and language definition of "commercial" will differ and
parts of the legal definition will melt into the language definition and
vice verse. "Non-commercial" might therefore change for already licensed
works, following the issue of the license and works, especially following
international interaction. This creates a problematic situation for all
parties.

Conclusion

When conducting adaptation and translation of the Creative Commons
licenses cultural and language differences will appear. This may create
severe discrepancies when it comes to the interpretation of the licenses.
If Creative Commons is considered an international project, instead of
several national projects co-ordinated under the same brand name, where
content should be licensed under the same terms, even by using machines
for licensing and XML-tagging instead of legal interpretation, then the
Creative Commons organisation needs to find common definition of central
terms in the license. It may also need to have a common jurisdiction and
court for all licenses to make sure that the courts will not implement
different national interpretation of the term non-commercial and other
central terms in the license. If you are supposed to use the works the way
Creative Commons see it, creating derivative works and incorporating the
works of others in your own projects, then the legal situation must be
clear. It is important both to the original author and the one creating
derivative works or creating collective works.

The GNU project has a long tradition of handling such problems. Software
code in successful GNU projects, such as the Linux kernel, has been
submitted from a number of jurisdictions and nations all over the world.
Still, all are using the same GNU GPL v 2. There are translations
available, but as the Free Software Foundation puts it:

"Legally speaking, the original (English) version of the GPL is what
specified the actual distribution terms for GNU programs. But to help
people better understand the licenses, we give permission to publish
translations into other languages if the translations provided that they
follow our regulations for unofficial translations." (10)

In the GNU project there may be confusion over how terms shall be
interpreted. People may have their own view of what "free as in free"
means and it may be tried in different courts, but you will only find one
(1) text to interpret. The Creative Commons project may create a much more
complex situation, when content are cross-licensed over the borders and
there are even national concerns over the interpretation. To become really
succesfull and to make authors and licensees comfortable, I presume the
Creative Commons project needs to be able answer questions from Rasmus and
his fellow webloggers like Tom Cruise (Kaffee) does in A Few Good Men when
cross-examining Jack Nicholson (Col. Jessep) (11):

Col . Jessep: Are we clear?

Kaffee: Yes, sir.

Col. Jessep: ARE WE CLEAR?

Kaffee: Crystal.

++---- Nicolas said ----++
> Bonjour à tous,
>
> [Although English seems to be the common language on this list, I'll
> write this message in French: lawyer's language, even in French, is not
> easy for me to use, so don't tell about English or Dutch...]
>
> Donc, je suis newbie sur cette liste, mais m'intéresse depuis un petit
> temps aux CCPL. J'ai déjà jeté un coup d'oeil (rapide) aux archives,
> mais je n'ai pas trouvé de discussion précise concernant mes
> préoccupations.
>
> En particulier, je fais partie d'un groupe musical actuellement en quête
> d'un statut satisfaisant pour nos compositions collectives, et d'une
> protection suffisante contre les récupérateurs commerciaux en tous
> genres.
>
> D'abord: quelques éléments de notre situation:
>
> 1. Notre objectif premier est de jouer en public, et de pouvoir diffuser
> des enregistrements sans trop de risques que l'un ou l'autre petit malin
> dépose les droits dessus à notre place (au cas où nous aurions un succès
> fou ;-)), et que cela nous empêche de jouer nos propres compositions. En
> tout cas, pour l'instant, nous n'espérons pas gagner notre vie en
> vendant des disques, qui seraient plutôt des outils de "promotion":
> c'est de la musique acoustique et en partie improvisée, donc à notre
> sens beaucoup plus intéressante en concert que sur CD.
>
> A ce titre, il me semble qu'une CCPL "Attribution - Non-commerciale -
> Partage à l'identique" semblerait appropriée.
>
> 2. Nous n'avons encore rien déposé à la SABAM, essentiellement par
> crainte de perdre tout "droit sur nos droits" (sans compter la perte
> financière), crainte fondée sur les échos de nombreuses personnes y
> ayant été confrontées
>
> 3. les oeuvres sont créées collectivement par le groupe, et la
> composition du groupe a changé au cours du temps, cependant qu'une
> partie du répertoire (créée avec des membres démissionnaires) continuait
> d'être joué.
>
> Voici donc quelques questions en lien avec ces éléments:
>
> 1. (sur la CCPL)
>       a) §1.b. "Oeuvre dérivée" et §1.e. "Oeuvre"
> --> Une interprétation publique d'une oeuvre musicale (avec arrangement
> modifié ou non) par des personnes autres que les auteurs
> constitue-t-elle une "oeuvre dérivée" au sens de la licence?
> --> Les droits voisins (e.g. interprétation) doivent-ils être soumis à
> une licence de même type que l'oeuvre originale?
>       b) §3.c. et §3.d. "communiquer au public"
> --> dans le cas de la musique, cette notion recouvre-t-elle la diffusion
> publique d'un enregistrement et/ou l'interprétation publique de
> l'oeuvre?
>       c) §4.c. de la licence: "(...) l'objectif d'obtenir des avantages
> commerciaux"
> --> cela vise-t-il, par exemple, la diffusion en musique d'ambiance dans
> des lieux à but lucratif (cafés,...), ou sur des radios commerciales
> (tirant leurs revenus de la publicité), ou sur un central téléphonique?
> --> cela vise-t-il un groupe autre qui produirait en public une
> interprétation de nos oeuvres et qui en tirerait un bénéfice (un
> cachet)?
>       d) §4.e. de la licence: "(...) ne modifie en rien le régime de
> rémunérations équitables (...) en contrepartie de la reconnaissance
> légale de licences non volontaires (...)."
> --> Une "licence non volontaire" signifie-t-elle "toute licence ne
> répondant pas aux conditions de la présente licence"? Par exemple une
> utilisation à des fins commerciales ou une diffusion sans mention de la
> licence ou de l'auteur?
> --> Une utilisation commerciale est-elle interdite par la licence, ou
> est-elle soumise à "rémunération équitable"?
> --> cet article signifie-t-il qu'il n'est pas exclu qu'une société de
> droits puisse gérer des droits d'auteur soumis à des licences CCPL?
>
> 2. (sur les sociétés de gestion de droits)
>       a) Quelle est la position actuelle de la SABAM concernant les licences
> libres? (je crois savoir qu'un(e) représentant(e) a participé à un débat
> à ce sujet récemment, donc ils sont au moins au courant de leur
> existence...)
>       b) Existe-t-il, en fait ou en germe, d'autres sociétés belges de
> gestion de droits pour la musique (le SACD, question musique, semble
> s'occuper uniquement de "musiques de scène") qui seraient ouvertes à ce
> genre de licences?
>       c) Idem pour les sociétés étrangères? Si c'est le cas, en tant que
> Belge résidant en Belgique, ai-je le droit de m'inscrire à une société
> étrangère?
>
> 3. (sur la composition collective)
> --> Une personne morale semble ne pas pouvoir être titulaire de droits
> d'auteur (la loi mentionne explicitement "personne physique"). Comment
> pouvons-nous éviter la dispersion des droits entre toutes les personnes
> ayant contribué à chaque morceau?
> --> Cela peut (doit)-il passer par un éditeur qui "centraliserait" les
> droits de notre répertoire?
>
>
> Ca fait beaucoup de questions, je m'en rends bien compte: je me
> contenterai déjà de quelques éléments de réponse...
>
> Nicolas
>
> _______________________________________________
> Cc-be mailing list
> Cc-be AT lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-be
>


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