Cc-europe mailing list

[Paul Keller <paul AT creativecommons.org>]

Dear all,

We are writing to obtain your expertise as our affiliates relative to a 
question that has arisen in the 4.0 drafting process.  In particular, CC HQ 
wants to learn more about a collecting society arrangement raised on the CC 
license discuss list.[1]  We would like all jurisdiction teams to answer a 
few questions below by no later thanTuesday, June 5th. Please send your 
replies to this list or to Jonas (who will collect and bundle them).

In some jurisdictions, collecting societies are given authority to negotiate 
extended collective licenses on behalf of both its members and non members.  
We understand from the CC license discuss list that in some countries, when a 
non member of such a CS applies a CC license to a work that is also the 
subject of a separate license negotiated by the CS, the CC license (or at 
least that collecting society waiver provision) will be deemed to take 
precedence over license arrangements negotiated by those CSs with third 
parties.  We understand that the CC licensor/non member thereby loses the 
right to collect payments received by the CS under the EC license due to the 
waiver in the CC license of the right to collect royalties under the CC 
license for uses the CC license permits.  We also understand from the license 
list that this outcome could be changed if the CC License didn't waive the 
right to collect royalties for uses permitted by the CC license.  That is, 
that if the right to collect were reserved in the CC license for uses the CC 
license permits, then that would be sufficient to allow the CC licensor to 
receive monies collected by the CS under the other, separate license for the 
same work(s).

HQ would like to have more details about the source of this precedence rule, 
and identify where this rule or a similar rule may exist.  In particular, we 
would appreciate hearing from each CC affiliate jurisdiction team:

(1)  Is there a rule of precedence or other similar rule in your jurisdiction 
that precludes collection by a non member CC licensor of monies collected on 
his/her behalf through an extended collecting licensing arrangement?  Please 
identify the law or other source (via a link or other), if possible.

(2) If such a rule does exist, can a non member/CC licensor opt out of that 
treatment through some means and still both use CC licenses (as is, with the 
waiver) and receive those monies?

(3) If such a rule does exist and there is no opt out, please propose if 
possible suggested language for the CC license that changes that result, such 
that that non members could both use CC licenses and still collect monies 
separately collected by such a CS under the EC license?

Please note that CC has not decided whether the result should change in 4.0.  
We are instead attempting to learn as much as possible at this first stage of 
inquiry.

Please submit responses by no later than next Tuesday, June 5th at the 
latest. Let either Diane or me know if you have questions.

many thanks in advance/Paul


[1] The issue was first raised by on the CC license discuss list by Gisle 
Hammerly (thanks).  See the following threads for details: 

https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006849.html
https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006789.html