Development of Creative Commons licenses

[drew Roberts <zotz AT 100jamz.com>]

On Sunday 20 November 2005 12:18 am, wiki_tomos wrote:
> 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,

If your analysis is correct I think it is helpful as when I release my songs 
BY-SA I do not wish for anyone to be able to stop others from making 
recordings of performances.

BTW, aren't broadcasts (think FM radio) considered performances?

I was thinking of audio recordings, but you bring up an interesting point 
about video.

I will have to think about it further, but again, if you are going to be 
performing my songs making use of the BY-SA license, I think I would want you 
to not be able to forbid this.

If indeed, the performers could not prohibit such recording but a venue owner 
may be able to under certain circumstances, I would like to start a 
discussion on how this "loophole" might be closed.

I do not see how it would be mandatory to allow "board" recording though as 
things stand. I think if we felt this is an issuer to be forced, it would 
require specific changes to the license.

ITANAL. (I Too)

> 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."

Perhaps we need to change this to any technological or other measures...


>
> Tomos

all the best,

drew

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