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  • From: John Hendrik Weitzmann <jhweitzmann AT mx.uni-saarland.de>
  • To: cc-europe AT lists.ibiblio.org
  • Subject: Re: [CC-Europe] CC advocacy / IGEL
  • Date: Mon, 23 Apr 2012 20:17:56 +0200

hi Gisle,

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.

which is what the CCPL does for exactly that reason, which is what creates the problems I mentioned.

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.

I find it hard to understand how it could not be CC's problem if people constantly (as a project lead you should know cases yourself) use pictures and stick to the license conditions but get notice-an-takedown nonetheless because of moral rights. You don't think they feel a little kidded by CC?

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.

of course CC doesn't have that right, only the rights holders do. And I didn't say that re-licensing would be done by CC.

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.

... which means another layer of unclreared rights in addition to moral rights. Actually I don't see any *real* concern on CC's part here, Diane just mentioned the catalogue right as an example to check on and to maybe enhance the license suite. Another one in Germany would be the scientific editors right, but both of these are far less relevant than a potential press publishers right.

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)

thanks, but I figured precisely that just from the name.

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).

ok, then please check for yourself how relevant "making acvailable" is (see your translation above). At least unter German law, anything put online is made available in that sense, par. 19a Copyright Code (Urheberrechtsgesetz).

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?

if it mitigates the problem of uncleared rights hiding behind the license, it's worth looking at.

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.

so be it, but that's arguably still better than people putting other peoples CC-licensed catalogues/editions/news articles online unaware that they violate a related right.

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

good work

Now, when I present the CCPL for publishers, part of my pitch
is that using the CCPL makes you part of the fine movementthat
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.

a) there's no need to talk about waivers all the time, as you do, related rights can just as well be licensed in the CCPL instead of waived, just as any other right,

b) the "can't collect a penny" part is wrong in that it assumes that only monopolies bring profits.

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.

good

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 doubt that, but anyway they would be ill-advised to create their own silo because people tend to simplify and look only for the well-known solutions. Whatever those publishers would think they could win from open access, they would probably lose that by taking the silo road.

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.

so you are arguing for taking out of the license grant the phonogram rights, the performers rights, the photographers rights? You can't be serious.

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.

No, if I as a private person want to make available a sound recording that I found licensed under CCPL I cannot avoid to touch on numerous related rights - or I must simply not distribute. Copying, making available etc are part of the related rights.

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.

the reason is called constitutional guarantee of property, and Norway probably has the same. It's responsible for the well-known fact that protection terms can be extended easily but are practically never shortened.

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.

No, those are not individual IP rights, they are just what we call Ordnungsrecht, like anti-circumvention rules, mandatory collecting a.s.o.

Here's a dare: Find me a credible example of Norwegian IP (= Intellectual Property) rights abolished or at least terms reduced after 1945, and I will start believing in the press publishers right potentially being a mere experiment.

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

No, my position (not related to CC and not put forward by me with the CC hat on) is that we need to fight all additional IP monopolies that potentially interfere with a free/open internet.

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?

There seems to be a misunderstanding here: You seem to think that you are poking into a nest of abolishonists or haters of copyright. That is not the case. Most CC affiliates I know neither want to push disruptive business models as an end in itself nor want to deprive people of means to make a living from creative work.

Best
John




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