Development of Creative Commons licenses

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

On Sunday 06 May 2007 08:41 am, Kevin Phillips (home) wrote:
> ----- 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?

Ah, OK, now I get your twist a little better.

Radio Station gets Alice's (P) recording of her (C) CC BY-SA song and plays 
it, even though the words and music are (C) Alice, and the recording is (P) 
Alice, they are licensed by her CC BY-SA so the station does not need to pay 
royalties.

Bob uses the statutory license to make a cover of Alice's song so as to avoid 
BY-SA on his cover. He has to pay her royalties under the statutory license 
for her (C) on her words and music. He has nothing to do with her (P) 
recording.

The Radio Station now get's a copy of Bob's cover and starts playing it. They 
broadscat and stream on the web. They will have to pay Sound Exchange fod 
using Bob's (P) cover. They will claim that they already have a BY-SA license 
from Alice and so don't have to pay Alice any royalties on her (C) words and 
music.

I think this comes down very much like the lower and higher resolution photo 
discussion we have had here before. They don't have a BY-SA license on the 
cover, only on the original from Alice and any other BY-SA covers. The 
license on the version they are playing is All Rights Reserved.

Is this point of view correct? Incorrect?

An interesting point is htat if the Radio Station was broadcast only and my 
take is correct, Bob would not get paid for his ARR (P) cover but Alice would 
get paid for her (C) to the words and music in Bob's  ARR (P) Cover. If I am 
incorrect, a broadcast only Station would not have to pay anyone for playing 
Bob's (P) Cover.
>
> > > 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.

Could you consider using (p) and (c) differently?

http://www.ibluegrass.com/bg_posting3.CFM?p__i=1227&p__r=&p__a=legal 
(The symbols don't show properly there for me though.)

But from this page:

http://www.elementarydesign.com/audio/printer.html

[Note: © ("C" inside a circle) is the symbol for "copyright" and ℗ ("P" 
inside 
a circle) is the symbol for "phonorecording," the sound recording copyright. 
To the best of my knowledge, the only browser that displays this character is 
Mozilla, which is not terribly surprising, given that Mozilla is the only 
browser that really comes close to displaying web pages properly.]

>
> >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! :)  

It is more a point of view issue than a secret.

> 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.

Bingo. NC licenses your work to others for non-commercial purposes so that 
you 
can reserve commercial uses for yourself.
>
> 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.

You know, when you see things your own way, you often can't see how someone 
could see it differently or be confused until someone else comes along and 
puts a different slant on it. Wouldn't just reading the deed clear this up 
though? Or is it still unclear after reading the deed?
>
> > 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.

In order to fix this, congress would have to grant a statutory license 
exemption for Free Copyleft  works like BY-SA songs.
>
> > 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

(C) fees.

> 4) you have to register with "barn-ascap" to collect these (p) fees

or "banr-bmi" etc and it is for the (C) 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 do know that in the US, Sound Exchange only collects for streaming and 
not 
for broadcast radio. I am not sure how other countries go with broadcast only 
radio.
>
> You licensed your barn BY/SA....
> 3) you don't have to pay a "barn publisher" if you want (p) fees

You don't get (P) fees at all.

> 4) you won't have to register with "barn-ascap" to collect fees

Unless you can get a non exclusive deal with a collection agency, you may not 
even be able to legally use a CC license like BY-SA for your music. It seems 
like some collection agencies in Europe work this way if I understood what I 
have been told.

> 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.

The parallels do not work out quite right, but OK.
>
> 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.

No, he gets only a (P) on his sound recording. And note, he is not free to 
make a derivative version of hte words and music under the statutory license 
from what I gather. He can only cover the song. The statutory license seems 
quite limited.
>
> However, he does have to :
> 7a) pay you a compulsory fee to buy your barn.

He doesn't buy your barn.

> 7b) collect his royalties from barn-exchange
>
> You have to :
> 7c) pay a "barn publisher" - if you want your (p) fees

You don't get the (P) fees, you get the (C) fees, he gets the (P) fees for 
his 
sound recording.

You can be your own publisher.

> 7d) register with "barn-ascap" who collect you (p) fees.

They collect the (C) fees. You can collect for yourself. As a matter of fact, 
Bob might not be willing to do a cover of a person who was not signed with 
ascap or bmi or the like as he may not get air play. I don't know. Does 
anyone know if commercial radio stations are in the habit of playing music 
where they would need to negotiate licenses with the individual authors to 
clear the rights?
>
> 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.

The only thing they can sell to people is the actual recording. Would they 
even be allowed to license samples from the recording?
>
> 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.

They can only (P) their version. And they don't force-buy, they 
force-license. 
They don't get to co-own your copyright by this method.
>
> > 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. :)

So, if you're in it for the money, license only non-commercial use of your 
work to others so that you can reserve the commercial uses for yourself, and 
maybe throw in ND too.

Like i said, it is more like a POV thing.
>
> > 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

all the best,

drew
-- 
(da idea man)