Development of Creative Commons licenses

["Kevin Phillips (home)" <tacet AT qmpublishing.com>]

----- Original Message -----
From: "Greg London" <email AT greglondon.com>
To: "Discussion on the Creative Commons license drafts"
<cc-licenses AT lists.ibiblio.org>
Sent: Sunday, May 06, 2007 12:43 AM
Subject: Re: [cc-licenses] Need clarification: What is "commercial"?


>
> > So, the obvious question is : Does anyone know if
> > the two "recordings"....1x Alice 1x Bob are treated
> > as unique (in terms of their licenses)?
>
> Alice owns the original work.
> Bob's work is a derivative of Alice's.
> If anyone likes Bob's and wants to do a cover of it,
> they end up paying Alice.

ok, sorry maybe I wasn't clear, the question wasn't about authorship or
ownership of the original work.  I was wondering how the licensing covers
each "recording" and if each recording was/is effectively exclusive.  So,
are they completely unique and exclusive or could there be a legal argument
for merging any of  the waivers (by some clever lawyer) if Alice's original
license waivered fees?

This shouldn't be an issue for NC but in the context of BY/SA if the
"intent" of her release license was to waiver fees might this be a potential
loop hole?

> > via the compulsory license.
> > Ooo fragmentation, it's so purdy! :)
>
> I'm not sure what is "fragmenting" here.
> Compulsory licenses were put into copyright law
> because the idea of a cover song was decided
> to NOT be a total monopoly of the original author.

The fragmentation comes from Alice's gesture of making something free (to
share at the very least) which is then levered into commercial space and
suddenly becomes very un-free.  You could argue this is a good thing, but to
Alice this could mean her version of the song is lost in a tidal wave of
commercial marketing and promotional forces.....and something she intended
to be freely shared is being paid for by the majority.

Alice is an idealist btw. ;)

> > *flash* Alice needs to be registered
> > with ASCAP (or similar) to ensure she
> > gets her dues.
>
> Something. I'm not sure how the money
> actually changes hands. I don't think
> the law stipulates a particular organization,
> but I'm not certain of that.

The law stipulates "collection agencies" - as do the new versions of the cc
licenses. Sound Exchange is a catch-all collection agency specifically for
royalties on recordings, ASCAP/BMI/SESAC/PRS are all agencies collecting
royalties for composers, songwriters and publishers aka (p) rights.

>From the horses mouth : http://soundexchange.com/faq.html#b1

> > If the two "recordings" somehow get
> > entangled legally, then we have a big
> > big mess.
>
> Again, I'm not sure what is getting "entangled" here.
> Alice owns the original song.
> Bob's version is a derivative.
> anyone else who does a cover would
> go back to Alice.

(see above)

> > So, it's a good thing for Alice that she
> > registered with ASCAP, and that she didn't
> > choose SA or her CC license would have waivered
> > those fees, no new car :/  ....just because
> > she chose the SA license and not the NC license
>
> > I still can't get my head around SA having
> > waivered fees whilst NC does not.
>
> NonCommercial and NoDerivatives are Market Economy
> licenses. You use them because you want to make
> money directly off the work being licensed.
> i.e. You want to sell the work, and you believe
> the license will help you do that.

This is the thing I for one didn't get until I started reading this mailing
list.  It's like a "big secret" or something! :)  I began to wonder about
the nomenclature "NonCommercial" a little while ago when noting the
dominance of commercial recordings on ccMixter using these "NC" licenses.
So my suspicion was correct, it's a control mechanism.

Unfortunately, as I've said before many musicians see it as meaning what it
says rather than what it does.  It's wrong to assume, so there's a need for
education to combat the misleading naming convention and to inform about the
"in addition" nature of the cc licenses (for music).  I'm sure many people
will
assume CC is an alternative licensing system to (c) and never the twain
shall meet.

> ShareAlike and other licenses are Gift Economy
> licenses or Community Licenses or whatever you
> want to call it.  You use a Gift Economy license
> if you want to take some work and make it Free
> for the community to use and build upon as they
> see fit. You wouldn't use ShareAlike if you wanted
> to directly sell the work. (unless you ShareAlike
> an old version and keep the latest version ARR,
> or something)

....it's a shame when Alice's original intention was that of a "gift" and
along comes a corporate A&R scraper looking for more volume in her
portfolio.  This may not be negative for Alice, it may even be the future of
talent spotting for the record companies - who knows.

> One way to look at the difference can sometimes
> boil down to how you build a barn. Say you want
> to build a barn. There are at least two approaches
> including (1) hiring a barn building company to come
> in a build the barn for you and (2) having the
> community come in and help you raise a barn together
> for free.

"I'm.....a.....mean...ol....pole......cat!"  :)

> The thing about Copyleft licenses is that it is
> a way for you to say "I want to build a barn that
> the whole world can use, and here's my contribution
> to do that." If enough people in the community decides
> to chip in their time and energy, they can take your
> work, add new works to it, and end up with something
> that is Free that would have taken years and cost
> thousands of lives using any other approach.

True.  BUT in the crazy world of music licensing  :

1) you have to make sure it doesn't look like anyone elses barn
2) you have to make sure none of the wood came from another barn
which was licensed differently.

You licensed you barn NC....
3) you have to pay a "barn publisher" if you want (p) fees
4) you have to register with "barn-ascap" to collect these (p) fees
5) The site owner decides your barn is so cool he's going to invite
people to come see.  Because you're barn is "Non Commercial" he
has to pay barn royalties for everyone who visits (paid to
BarnExchange who then pay you - if you're registered) ....BUT
he's not allowed to charge the visitors or gain sponsorship.

You licensed your barn BY/SA....
3) you don't have to pay a "barn publisher" if you want (p) fees
4) you won't have to register with "barn-ascap" to collect fees
5) The site owner decides your barn is so cool he's going to invite
people to come see.  He doesn't have to pay barn royalties for
everyone who visits...and he can charge the visitors or gain
sponsorship.

6) Your intention either way has been to give away the blue prints for
free to help others build their own barn, as long as the license conditions
are met.

7) A corporate barn builder likes your barn so much he makes you
give him the blue print - govermint said he can.  He then makes a (c)
version of the blue print and sells it, endorsed by a celebrity and
sold by a global network of staff, everyone buys his version of your barn.

However, he does have to :
7a) pay you a compulsory fee to buy your barn.
7b) collect his royalties from barn-exchange

You have to :
7c) pay a "barn publisher" - if you want your (p) fees
7d) register with "barn-ascap" who collect you (p) fees.

7e) The site owner decides your barn is so cool he's going to invite
people to come see.  The corporate barn builder doesn't want him
telling people there's a free alternative to his barn.  They come to
an arrangement, the site owner builds another barn with the builder
and they make money from the vistors who buy the (c) blue prints.

Oh well......
Your barn was a fine barn, everyone should have had one for free.

> And because the original work you contributed was
> copylefted under GNU-GPL or ShareAlike, the final
> work will also be under that same Free license.

Not true if a company can force-buy and (c) their own version.

> So, if you're in it for the money, use NC and maybe
> throw in ND too.

Read that sentence over and tell my why people shouldn't be
confused by it. :)

> If you're looking to contribute your work to some
> project that is too big for you to do alone, then
> use a copyleft license and see if you can get a
> community effort behind the work to complete it.

Me personally?  Already doing it, despite the issues :)

Thanks again Greg, it's been interesting discussing this,
Kev