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[Matěj Myška <matej.myska AT law.muni.cz>]

Dear John and all,

as already stated: exciting stuff indeed.

The already expressed ideas & points for discussion are very relevant also in CZ.

Maybe as a further expansion of the already mentioned issue of extended collective licensing I would add the following:

The Czech Republic is one of the countries with relatively far-reaching collective licensing. On the other hand, the effects of the extended collective licensing could be excluded by the relevant rightholder with two unilateral acts of will targeted towards the user and the Collective Management Society. What is debated in CZ whether the CC could be regarded as such act (and actually whether it is at all practicable to perceive it as one - a database had to be established in such case, where both the users and CMS could check the actual rights).

Unluckily such exclusion is not possible as regards to the use of the copyrighted work by broadcast performance (i.e. playing fo radio in a pub etc.)

Closely connected with this issue the (zero) acceptance of JAMENDO licences in Czech Republic. (The logic of CMS in this case is quite simple - as the broadcast performance rights are de facto mandatory collectively licensed a further licensed from JAMENDO cannot be acquired at all).

Last point to be (probably) discussed: the acceptance of CC licenses by the CMS in general. Lately OSA (Czech CMS for authors and composers) started to ask the CC-licensed music users to "prove the scope of the acquired license".

Looking forward to the results and good luck with the negotiations!

Best,

Matěj Myška
___________

cyber.law.muni.cz

@matejmyska

2014-06-18 13:16 GMT+02:00 Gisle Hannemyr <gisle AT ifi.uio.no>:

On 2014-06-17 18:57, John Weitzmann wrote:
> Hi all,
>
> it looks like in the first half of July we (CC HQ + Board + Europe RCs)
> will have a meeting with the international association of collecting
> societies, called GESAC, on implications and practical implementation of
> the recent EU Directive on collective management of copyright, for
> details see
> http://ec.europa.eu/internal_market/copyright/management/index_en.htm

Looking good. In particular, I like the following provision:

Art. 5(3):
"Rightholders shall have the right to grant licences for non-commercial
uses of any rights, categories of rights or types of works and other
subject-matter that they may choose."

If I understand this correctly, this means that CSs can no longer
forbid their members to grant a non-commercial CC license.


However, I spotted the following in the preamble (12):

"This Directive [...] does not
 interfere with arrangements concerning the management of rights in
 the Member States such as individual management, the extended effect
 of an agreement between a representative collective management
 organisation and a user, i.e. extended collective licensing,
 mandatory collective management, legal presumptions of representation
 and transfer of rights to collective management organisations."

To me, it looks as if they're saying that the directive *also* does
not interfere with the effects of "extended collective licensing",
etc.

So what happens when there is both a "extended collective license"
and a "non-commercial CC license" for use of the same work?


In Norway, we currently have a situation where the producer's and
performing artist's CS (GRAMO) collects for *all* public
performances of recorded music under an "extended collective
licensing" arrangement.  Even if the entire repertoire performed
is available under a non-commercial CC license, GRAMO demands
a levy if the music is performed publicly.

In other words, even if the rightholders have the right to grant
a licence that covers all uses of the work, and does so for
non-commercial uses, from the user point of view, the CC NC
license is "worthless", as the material can not be performed
*unless* a levy its used is paid to GRAMO under the "extended
collective license" arrangement.

To me, it looks as if the provision in the preamble that the
Directive "does not interfere" with the "extended effect" of
"extended collective licensing" makes Art. 5(3) more or less
worthless in jurisdictions with far-reaching extended collective
licensing.

I hope that I am wrong about this, and that there i something
about the Directive I've misunderstood.  But unless somebody
can dismiss this as a misunderstanding on my part, I would
appreciate it if you could use this dialogue to clarify what
using  a non-commercial CC license entails in a jurisdiction
such as Norway, where far-reaching extended collective licensing
is a reality.

--
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
========================================================================
    "Don't follow leaders // Watch the parkin' meters" - Bob Dylan

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