Cc-europe mailing list

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

On 23.04.2012 20:17, John Hendrik Weitzmann wrote:
>> 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?

No, I don't - for two reasons:

1) I speak and teach about the CCPL at various venues, both to
   professional audiences (teachers, publishers, journalists,
   professional artists), and to amateurs (bloggers, amateur
   artists).  I always take care to point put that moral,
   personality and publicity rights, etc. is *not* within the
   scope of the the CCPL.   I have not in a single case experienced
   that any of my audiences have a problem understanding this.
   (We also point this out in the FAQ on http://creativecommons.no/
   of course.)

2) I am not aware of a *single* notice-and-takedown because of
   moral rights.

In short:  I do not believe the "problem" you refer to exists.

>> 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 uncleared 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.

I think your metaphor ("layer") is badly choosen.  These right
does not constitute a "layer" between reasonable use of the Work
and the public.  The rights you mention do not interfere with
reasonable use. They are specific rights that target specific
uses of the works (usually for commercial advantage) that
rights holders want to  have reserved.  I think that
Creative Commons need not, and should not, take sides in
this ongoing tussle, by insisting that right holders waive
such rights.

>> 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 available" is 
> (see your translation above). At least unter German law, anything put 
> online is made available in that sense, par. 19a Copyright Code 
> (Urheberrechtsgesetz).

By all means, include "make available" along with other relevant rights
if you think it need to be listed (in Norway it is just a synonym for
"distribute").

I was just trying to summarise the license grants from the CCPL -
where ver. 4.0d1 says: "reproduce, distribute, perform, display
and communicate the Licensed Work" [and] "Adaptions".

IMHO, the current license grants are fine, and they give the public
the freedoms it needs.  If you think that "make available" need
to added to the list, that's fine with me.

>> 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.

Well, I still not convinced that this *is* a problem.  If you can
point me to a specific real-life example that demonstrates this,
I am willing to listen.  But until then, my answer is that this
is not a problem, so doesn't *need* to be fixed.

I am concerned about another problem: The proliferation of
"open" or "free" licenses.  After CC HQ made the unwise choice
of insisting that European jurisdiction ports waived database
rights in ver. 3.0, we saw that several European governments
(e.g. UK, France) created their own public licenses for
databases, as well as the ODbL:
   http://opendatacommons.org/licenses/odbl/

Now, in ver. 4.0, CC HQ has reversed position on database rights,
and license them along with most other neighbouring rights,
which is excellent!  But they still haven't learnt from the mistake
they made by waiving database rights in ver. 3.0, and now proposes
an even more overreaching waiver of neighbouring rights.

I say that license proliferation is a real problem, and that by
*not* interfering with rights not fully understood, this problem
can be mitigated.  It's worth looking into.

>> 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.

We are obviously not communicating.  The Nordic catalogue right
does *not* reserve the right of putting catalogues on-line.
The *only* thing the catalogue right "does" is endowing catalogues
with copyright protection (just like the database right
endow databases with copyright protection).

If we consider CC 3.0 BY-SA (where catalogue rights are fully
reserved): People can of course put other's peoples CC 3.0
licensed catalogues on-line because that is one of the things the
CCPL gives you permission to do with the licensed object.  However,
because the catalogue is copyrighted, the licensee, when doing
so, must abide by the terms of the license (i.e. give credit,
and offer any derivatives under CC BY-SA).

Now, if CC goes ahead with its plan of putting a blanket waiver
of "ancillary" rights in ver. 4.0, waiving catalogue rights
implies that you waive your copyright for the catalogue.  This
makes all of the rest of the the CCPL (which depends on copyright
to be legally binding for the licensee) null and void.   This
means that people are can use your catalogue if it is
available under the CCPL 4.0 BY-SA *without* giving you credit
and without using CC BY-SA for derivatives.

Do you think creators of catalogues using the CCPL 4.0 is going
to understand this?  You don't think they feel a little kidded
by CC?

I know for a fact (because this has happened to some people
in Norway that used to use CC 3.0 BY-SA for their data without
understanding how the CCPL works), that at least one database
made available under CC 3.0 BY-SA has been appropriated by a
commercial company, and put into a proprietary database with
no credit to the organization that created the original database.
The company also refused to give them access to the data in
accordance with the SA-provision in the license (or any other
access for that matter).  They were really upset about this
and it came as a total surprise to them.

As public lead, the only thing I could  do was to tell them to
re-read the last paragraph of sec. 3 in CC 3.0 BY-SA - which
both in the Norway and German port have an explicit waiver of
database right ("Soweit Datenbanken oder Zusammenstellungen von
Daten Schutzgegenstand dieser Lizenz oder Teil dessen sind und
einen immaterialgüterrechtlichen Schutz eigener Art genießen,
verzichtet der Lizenzgeber auf sämtliche aus diesem Schutz
resultierenden Rechte.")

>> 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,

The *only* reason I talk about waivers is because CC proposes waivers.
If CC had proposed that we license these rights, I would just have
applauded.  But since what they propose is that creators waive
these rights, I think we need to discuss waivers.

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

There is no such assumption.  The sentence you object to is the trivial
observation that you cannot collect on a voluntary license if you waive
the right to collect on that license.

>> 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?

No.

I think the license should license the rights to "reproduce,
distribute, perform, display and communicate the Licensed Work"
[and] "Adaptions" for all the copyrights and neighboring rights
it makes sense to license - and *leave the rest alone*.   If
necessary, we can discuss what makes "sense" - but I do not
think we will disagree about that.

What I am upset about, is that the CC 4.0d1 license contains a waiver
of unspecified neighbouring rights (for some reason called "ancillary
rights").  This unspecified waiver is a new development for this
version of the license, and I think it is overreaching.

>> 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.

Well, we obviously need to make sure that the relevant related rights
you mention are licensed.  I've no problems with that.

> 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.

I don't think is productive to discuss what I think about other
people.  I don't place people into boxes.  I want to discuss whether
it is a good idea to include in the license a blanket waiver of
neighbouring rights (including Nordic catalogue rights, since that
right has been used by Diana Peters as an example of a right that
causes "concern" for CC).
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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