Cc-europe mailing list

[John Hendrik Weitzmann <jhweitzmann AT mx.uni-saarland.de>]

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