Cc-europe mailing list

[Gisle Hannemyr <gisle AT ifi.uio.no>]

On 22.04.2012 22:41, John Hendrik Weitzmann wrote:
> Gisle Hannemyr wrote:

>> If you are the Original Author and haven't already *exclusively*
>> licensed your Work to a publisher, what is it in Leistungsschutzrecht
>> für Presseverleger that stops you from offering your news text (or
>> any other text) under the CC public license of your choice?

> The CC approach already has a huge problem with 
> moral/personality/publicity rights, which tend to follow such diverse 
> traditions around the world that it arguably is impossible to properly 
> incorporate that into a standard license. The result is: They are left 
> out of the licenses' scope and many licensors as well as licensees are 
> not aware of this, producing countless cases of rights violations.

I think that, given the fact that moral rights, etc. follow such
diverse traditions around the world, the only sensible thing to
do is to leave them alone.

And for the record: I find no credible evidence for your claim that
this approach "producing countless cases of rights violations".  If
it does, I still do not think the problem is with the licenses, but
with the public's general ignorance about these rights.

This may very well be a problem, but it is not CC's problem.

> Any new related right left out of the license has a similar or - because 
> of the economic relevance its holders might see in it - even worse 
> effect: If I want to use CC content but cannot do so without running the 
> risk of violating a whole range of IP rights not included in the license 
> grant, the whole standard license idea is dead.
>
> This applies not only to a potential press publishers right but also to 
> such unusual things as the nordic catalogue right and others. The only 
> possible reaction by CC would be to take aboard the CC license scope any 
> (relevant) additional related right in a new license version, meaning 
> more versions out there and a lot of content that never gets re-licensed 
> under the latest one.

I don't think CC even has the legal right to re-license rights
"under the latest one" that was not covered by CC in the
first place, so your re-licensing point is moot.

Take the Nordic catalogue right, for example.  It was introduced in
Nordic copyright law in 1961.  And it is *not* waived in the current
version (CC 3.0).  At the end of sec. 3 (License Grant) in
CC 3.0 BY-SA says clearly: "all rights not expressly granted by
Licensor are hereby reserved".

I honestly do not understand why CC, in 2012, suddenly has become
concerned over the Nordic catalogue right.  It's been on the books
since 1961 and there has never been a rights violation or other
conflict over it with respect to CC, because CC - up to now - have
taken the sensible approach and left the Nordic catalogue rights
alone.

And in case you're interested in what these rights are, here is
the relevant bit from Norwegian copyright law:

   He that compiles and organizes a large collection of facts as
   a catalogue or database has the sole right to make it available
   to the public in that specific form or shape. (my translation)

(Note that the facts themselves are not protected, just the
collection of them, and if you rearrange them in another form or
shape, you can do with them what you like without trespassing on
anyone's catalogue right.  Is this really a huge stumbling block
for free culture?)

Like most related rights, leaving it alone is the only thing that
makes sense.  That allows the *relevant* rights (i.e. the rights to
distribute, copy and adapt) to be licensed through the CCPL, even
when the object offered by the Licensor is a catalogue (instead of,
say, a novel).

I noticed that in the April 2 announcement of 4.0 draft by Diane
Peters, "catalogue rights in Nordic countries" caused "concern",
and the current plan is to lump these together under the label
"ancillary rights" and waive them.

I simply do not understand why CC cannot keep Nordic catalogue
rights outside the scope of the license, like it did in 3.0.
Why "fix" something that isn't broken?

And of course, *if* catalogue rights are waived in 4.0, the most
likely outcome is that catalogue publishers interested in free
culture will stop using CC, and instead create another silo in
the shape of an Open Catalogue License, or something.

Let me now return to *Leistungsschutzrecht für Presseverleger*.

Not to boast, but I've had some success in persuading Norwegian
publishers to release content under the CCPL - here one such
announcement:
  http://www.digi.no/793526/trenger-du-et-bilde-av-steve-ballmer

Now, when I present the CCPL for publishers, part of my pitch
is that using the CCPL makes you part of the fine movement that
promotes "free culture" - as in "free speech", but *not* necessarily
as in "free beer".  "Using the CCPL and making  money in publishing
is not incompatible", I used to say.  I've had some success with
this pitch, because publishers tend to regard themselves as
promoters of "free speech".  But they are less keen to be seen
as providers of "free beer".

Let's assume that the Leistungsschutzrecht für Presseverleger
becomes law all over, and also that CC puts waivers into its CCPL
that means that a publisher can't collect a penny from an
commercial aggregator *if* they attach the CCPL to the content
they publish.

For me, this means I'll have to change my pitch when I talk
to publishers about the CCPL.  I'll have a tougher sell.  But
I can live with that.

For the public, it probably means that many publishers that
previously thought CC was a great way of granting schools and
bloggers access to their material, may think twice about using
CC if that also means waiving snippet rights.  If they still
feel like supporting free culture, they may go ahead and create
the Open News License, or something, where snippet rights are
retained, but where schools and bloggers can freely use their
stuff.  So we'll have another silo.

I can understand the desire by some free culture activists to
oppose certain aspects of copyright law which they think are
unfair, monopolistic, stupid, etc.

In some cases (like DRM and SOPA/PIPA) I very much sympathise with
them, and usually join their protest (but *not* wearing my CC swag).
In other cases, like when they fight against collective licenses,
snippet rights, catalogue rights, and PROs, I do not agree with
these activists.

However, in *all* cases, I think CC is the wrong arena for these
tussles.   CC can't regulate copyright in diverse jurisdictions
through its public license.  All it can do is to provide a legal
tool for those that want to freely license a few specific rights
(the right to copy, distribute, and adapt).  As for *all* other
rights, they should be left alone, as they are too complex to
be regulated through a public license.

To make my point clear:  Leaving related or neighbouring
rights alone does *not* make material that carries such
rights un-licensable under the CCPL.  You can still license
the right to copy, distribute, and adapt - which are the
rights that matters to *most* of the prospective users out
there.  But it means that we have to live with the situation
were certain *specific* rights are not within the scope of
the CCPL.  But those interested in these specific rights are
usually corporate entities that can afford to pay a lawyer to
read the license and sort out the rights they need to clear
outside the scope of the CCPL.

When CC tries to do *more* than license the right to copy,
distribute, and adapt, and in particular, when CC takes it
upon itself to suppress moral rights, catalogue rights, database
rights or snippet rights, the license text becomes very hard to
understand for a non-lawyer.  Also, IMHO, these efforts to
"repair" what CC regards as deficiencies in the diverse
copyright laws around the world accomplishes nothing.  Copyright law
around the world is not going to be changed just because the
Creative Commons dislike certain aspects of it. Legislation for
moral rights, catalogue rights, database rights, etc. exists and
will continue to exist in various forms in various legislations,
and there is nothing CC can do about it.

But by sticking almost unreadable waivers of these diverse rights
into its licenses, CC just creates grounds for more and more
people *not* to use the CC public license (because they resent
waiving related rights that they think will generate income for
them), until the only remaining users of CC are amateurs, the
bored rich, and a few real artists that may release a track or
two under the CCPL as a publicity stunt.

>> However, we live in what I regard as difficult times for
>> content creators and publishers, and I think we need to allow for
>> some experimentation with value networks, including value networks
>> incorporating statutory licenses as well as voluntary public licenses.

> If by "experimenting" you refer to introducing the proposed press 
> publishers right (?), which would first happen in Germany but then be 
> adopted all over Europe and probably elsewhere, keep in mind that, at 
> least in Germany, no IP right introduced has ever been abolished again 
> later, not a single one.

Yes, I'm regarding the proposed press publishers right as an
experiment.  I find it strange that German law can't be changed
if it is not working right.

In Norway, we are more flexible.  There was initially a legal ban
on re-chipping DVD-players to remove the zone block, but that law
is no longer on the books.  Also, a tax on blank media to compensate
rights holders for home copying was abolished in 2005.  I think
there are more examples, but these two come to mind without
searching.

Is your position is that we need to fight *all* new IP regulation,
because such regulation is *always* an abomination?

What about professor Lawrence Lessig's 2003 proposal for a collective
license that should be used to compensate rights holders in return
for non-commercial P2P file sharing being permitted:
  http://news.cnet.com/2100-1023-985207.html ?

If Lessig proposed this today, would you say that we should oppose
it on the grounds that we do not like new IP regulation?
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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