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  • From: Patrick Peiffer <peiffer.patrick AT gmail.com>
  • To: Paul Keller <paul AT creativecommons.org>
  • Cc: cc-europe AT lists.ibiblio.org
  • Subject: Re: [CC-Europe] CC 4.0: Input Requested
  • Date: Mon, 4 Jun 2012 19:26:12 +0200

Dear Paul,

You asked for input on:

"(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."

There is no ECL in operation in Luxembourg, therefore it is impossible to say what the situation would be if an ECL (contractual or legal exception) were in force. However, the law regulating collective management organisations states that "except for legal exceptions, collective management organisations must not hinder rights holders to transfer the management of one or several types of exploitation of their works to a society or organisation of their choice, or manage them themselves". (my translation, source below)

I can only guess what this framework would mean for an CC/ECL scenario:

It does allow rights holders to be members of a collecting society and / or use a CC licence. In case a CC licence is chosen:
- If the ECL scheme allows for an opt-out/waiver, the CC collecting society waiver provision works as intended, no monies are collected,
- In the ECL scheme does not allow for an opt-out/waiver, the CC collecting society waiver provision also works as intended, monies are collected,
- If the ECL scheme is a legal exception (in the specific Luxembourg case, an example of a non-waivable legal exception is the public lending right), the CC licence is not even considered, monies are collected.

Note: In any case, the ability of rights holders to licence non-ECL / non-legal exception rights in any way they see fit and to become members of collecting societies remains available.


Unless I'm confused by ECLs again, there seems to be no problem with the current wording of the CC licence. Introducing a non-waiver of remuneration for a specific type of national ECL introduces IMHO more uncertainty and cross-border confusion than the current scheme, based on choice of CC licence (commercial or non-commercial) and nature of collective management / ECL / legal exception (waivable or not).

Best,
Patrick Peiffer
cc-luxembourg

"Hormis les exceptions prévues par la loi, il est défendu aux organismes d'empêcher les titulaires de droits de confier la gestion d'un ou de plusieurs modes d'exploitation de leurs oeuvres ou de leurs prestations à une société ou un organisme de leur choix ni d'en assurer eux-mêmes la gestion."
Art. 7, p. 1905. "Règlement grand-ducal du 30 juin 2004 concernant les organismes de gestion et de répartition des droits d'auteurs et des droits voisins.Memorial A 133, http://www.legilux.public.lu/leg/a/archives/2004/0133/2004A19041.html"


On Wed, May 30, 2012 at 11:21 PM, Paul Keller <paul AT creativecommons.org> wrote:
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
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