Development of Creative Commons licenses

[Andrea Glorioso <andrea AT digitalpolicy.it>]

Dear Bram,

usual disclaimer: I am not a lawyer and I do not speak for Creative
Commons (Italy or otherwise).

In the rest of the email, CCPL stands for "Creative Commons Public
License(s)".

On Wed, Oct 25, 2006 at 05:09:29PM +0200, Bram @ Freesound wrote:
> Hello everyone,
> 
> I've been trying to hold out subscribing to cc-licenses myself, but it 
> looks like it's really necessary now. Over at the Freesound Project 
> we're in a bit of trouble:
> 
> We know Sampling+ is no good for samples/soundfx/field-recordings etc so 
> we are looking into choosing a new set of license(s).
> 
> Now there is one big problem: none of the legal code in either 
> sampling+, by or by-nc is particularly well suited for sound effects. A 
> sound-effect is almost invariably used as a "whole work" in the derived 
> work. Hence the definition of "derived work" is a bit strange when 
> talking about "samples".

First of all, you should be aware that many jurisdictions (including
Italy) do not have a legal definition of what is a "derived" or
"derivative" work.

Depending on the situation, one might argue that including a sample S
into a work W makes W a "derivative work" (in the CCPL meaning of the
word) or not depending on the expressive and creative dependency of W
with regards to S.  In most cases, I think this will *not* happen - most
works W will simply "include" the sample S, without turning into
"derivative works" of S.

This does not mean that the people behind work W, or in general using
sample S, do not have to respect the terms of the license for that particular 
sample - assuming, of course, such a sample qualifies for copyright 
protection, 
which is not necessarily true in all cases (let's not complicate things
further here, though).

Some jurisdictions - Italy included - have the notion of "collective
work" and of "joint work", the first being the result of a collective
effort being directed by a specific subject, the second being the result
of undistinguishable contributions by more subjects.   The status of a
work W, which includes sample S, as either a "collective work" or a
"joint work" has an effect on who has title to act for copyright
infringement, how copyright terms are calculated, and other stuff; it is
not directly speaking related to licensing, but it is an example of how
a sample S might be included - law-wise, not CCPL-wise - into another
work W without the work W becoming a "derived work" on S.  Again, and
pardon for the insistence, bear in mind that the concept of "derived
work" has not legal meaning by itself in several jurisdictions and its
proper meaning can be logically inferred on the basis of local copyright
law, hence my boring remarks here.

> Also, sometimes a sample can be more than just a sample: someone doing a 
> field recording of a street-organ is considered OK for freesound, but 
> then we're talking about something rather different.

You should be more specific on the cases in which a sample is more than
just a sample - it's not clear to me when this happens, and therefore
what might be the implications for legal analysis.

> Anyway: Could someone more knowledgeable than me please do an analysis 
> of using Sampling+, Attribution and Attribution-Noncomm in the context 
> of sound samples (think < 1 minute sound effects you use as building 
> blocks to create something else). What are the repercussions of using 
> these various licenses for derived work (and what exactly does one call 
> derived work of a 50 millisecond 'bass drum hit' sample?)

I would be interested in attempting such an analysis, but first I would
need to know:

(a) what do you mean exactly with "a sample being more than a sample"

(b) if you are only interested in Spanish copyright law or not (I
    understand the Freesound project is based at the UPF, hence in
    Barcelona, hence in Catalonya, hence in Spain, at least as far as
    copyright law is concerned)

Such an analysis would, however, be quite lengthy, so I'd like to know
if other people on this list would be interested in joining in.

> for those interested the related forum discussion -which is attracting a 
> LOT of attention- is here:
> http://freesound.iua.upf.edu/forum/viewtopic.php?t=1209
> It would be extra-super-great if someone from CC could jump in once in a 
> while to shed some "legal light" on the points raised, but I can 
> understand if this would be a problem.

Besides the fact that I am not someone from CC, I think it might be
helpful to try and breakdown all the various issues which you think are
most urgent.

Right now I can tell you that what some people are writing in that forum
- that you can "bargain" your right of attribution - is false for many
jurisdictions (Italy and France included, as far as I know).  The right
of paternity is considered to be a "moral right" in many copyright/droit
d'auteur laws, and as such is inalienable (i.e. it cannot be transferred
as can happen with economic rights, such as reproduction rights) and,
at least in Italy, is imprescriptible (i.e. it never expires).  What an
author can do, here in Italy, is publish under anonimity - but then he
has a right to be recognized as an author, if he later wants to exit
from anonymity.

Hope this is at leat mildly useful.

Best,

--
      Andrea Glorioso || http://people.digitalpolicy.it/sama/cv/
          M: +39 348 921 4379        F: +39 051 930 31 133
       "Truth is a relationship between a theory and the world;
       beauty is a relationship between a theory and the mind."

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