Development of Creative Commons licenses

[wiki_tomos <wiki_tomos AT inter7.jp>]

drew Roberts wrote:

>So, let's say I write a song  and release it BY-SA. Now some band comes 
>along 
>and adds it to their set. Can they forbid recording at events where they 
>perform my song? (While taking advantage of the BY-SA license mind.)
>
>Can they perform it in a venue that seeks to prevent audience recording?


I am not a lawyer, and I don't think I know enough about relevant cases and 
laws, but here is my take. 

There are a few separate questions, I think. 

1) Is recording a live performance a violation of copyright in general, not 
fair use?

This is a copyright question, not question about license, but I thought I 
would double-check.
The answer is yes as far as I can tell, in the U.S. legal context. 

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00001101----000-.html
http://www.legallanguage.com/lawarticles/Clarida011.html

2) When a band performs a CC-BY-SA'd song, are the performers' neighboring 
rights 
subject to CC-BY-SA? 

I don't know the answer, though my guess is yes. 

BY-SA tells us that any derivative work has to be shared alike. And of 
course, 
the original work is under the BY-SA license. But is performance of the work 
under the same license? Performance of the work is not a copyrighted work, 
because it is not fixed in a tangible medium, I suppose. And performers' 
rights 
are not copyright per se, but neighboring rights. 

When a music recording is under BY-SA, all the neighboring rights are covered 
by the license. So my guess is that neighboring rights are in general handled 
by the CC licenses, and performing a work would result in the automatic grant 
of 
permission to the audience to record it, and make use of the recording in 
various ways. 

But if you are talking about a video recording, as opposed to audio 
recording, 
my guess is that the publicity right is not covered by the license, and you 
need 
to get permission from the performers before you use video for certain 
purposes. 


3) Can other parties prohibit the recording? Can the band let others impose 
prohibition?

If the answer to the second question above is yes, then the next question 
seems to be 
if the people other than band members are subject to the license terms. (If 
the 
answer to the second question is no, we don't have to think about this 
question.) 

BY-SA 4.a. includes the following 
"You may not distribute, publicly display, publicly perform, or publicly 
digitally 
perform the Work with any technological measures that control access or use 
of the 
Work in a manner inconsistent with the terms of this License Agreement."

"You may not offer or impose any terms on the Work that alter or restrict the 
terms 
of this License or the recipients' exercise of the rights granted hereunder."

You, in this context, are the band members. So band members cannot prohibit 
recording, 
technologically or via a contract. 

If one of the audiences comes to a mixing panel (or other sound engineers) 
and ask if he could record the sound directly from the system (as opposed to 
the speakers), I guess the technicians cannot say no for BY-SA'd songs. 
Perhaps 
they can say no only when such an act of recording disrupts the delivery of 
the 
concert. I am not sure.

Can the owner of the venue, not a band member and therefore not subject to 
the license terms, prohibit recording either by technologically or by a 
contractual 
agreement with the audience? I guess that's possible in some cases. 

Exception I can think of is this: If the venue's owner is recording the 
performance, 
and wants to prevent others from recording it, maybe the owner is subject to 
the 
license terms (because he is producing a copy of the original work), and his 
preventing 
of others from recording it may be against the 4.a. of the license. 

When the owner of the venue impose such a restriction, can the band be 
considered 
to have breached the license terms by selecting such a venue? I don't know. 


Hope this helps,

Tomos