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  • From: Jamison Young <jam AT jamyoung.net>
  • To: cc-licenses AT lists.ibiblio.org
  • Subject: Re: [cc-licenses] buma/stemra
  • Date: Wed, 5 Sep 2007 18:39:36 +0200

Hi Jonathon & Paul,

There aren't any major differences between their (Buma/Stemra) and the
Creative Commons guidelines. The minor differences tend to be edge
cases.

I'm still trying to figure out how it works.

Does a non-profit organizations have to pay for the use of content of an artist that
has content with a collection society and is also using a CC license ?
Does Burma/Strema give a rebate to commercial venues/radio stations when they use content of an artist that is not
a part of their collection system ?

What does Burma/Stemra do with royalties that they are unable to distribute ?

Please answer and excuse not being able to understand.
best,
Jamison




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Today's Topics:

1. noncommercial guidelines draft: can I take this to the bank?
(erostratus2004-cc AT yahoo.com)
2. Re: buma/stemra (Paul Keller)
3. Re: buma/stemra (jonathon)
4. Re: noncommercial guidelines draft: can I take this to the
bank? (jonathon)


----------------------------------------------------------------------

Message: 1
Date: Tue, 4 Sep 2007 11:31:51 -0700 (PDT)
From: <erostratus2004-cc AT yahoo.com>
Subject: [cc-licenses] noncommercial guidelines draft: can I take this
to the bank?
To: cc-licenses AT lists.ibiblio.org
Message-ID: <971179.86147.qm AT web56409.mail.re3.yahoo.com>
Content-Type: text/plain; charset="iso-8859-1"

Hi, I have looked through this list for thoughts about commercial use vs. noncommercial use with regard to advertising.

My use case is CC-NC images to illustrate a news site.
We are thinking of using Adsense or something similar. The image is an illustration to the article.

https://lists.ibiblio.org/sympa/arc/cc-licenses/2007-May/005683.html
This post listed a draft document and a flowchart which clarified a lot.

However, I want to know how authoritative to view these interpretations. Has the wording been vetted very much? Does it represent any sort of consensus among people who would be in a position to know? The mailing list seems to disagree about the adsense use case. Is there any reason why this analysis somehow is more persuasive?

D1c says this
http://wiki.creativecommons.org/ DiscussionDraftNonCommercial_Guidelines
As a condition of using another work that includes a verbatim NC- licensed work, where the NC-licensed work is not the primary draw or is an insubstantial amount, both qualitatively and quantitatively (eg. where one NC-licensed image is used in a book that is sold commercially and the image is not a thematically significant part of the book) - this is a noncommercial use (provided that there is no charge associated with directly accessing the work.)

Can I take this to the bank? I've read through the list discussions of this matter and have even opined several places about it. But this is a common case for bloggers and website owners. I guess the best way is to consult an attorney, but I figure an attorney or two hangs around at CC and may have even glanced at the draft already :)

Robert Nagle




Robert Nagle, Technical Writer, Trainer & Linux Aficionado
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Message: 2
Date: Tue, 4 Sep 2007 21:22:20 +0200
From: Paul Keller <pk AT kl.nl>
Subject: Re: [cc-licenses] buma/stemra
To: Discussion on the Creative Commons license drafts
<cc-licenses AT lists.ibiblio.org>
Message-ID: <7C0BF1D3-1F63-4363-9058-8179A3D6CA69 AT kl.nl>
Content-Type: text/plain; charset=WINDOWS-1252; delsp=yes;
format=flowed

On Sep 4, 2007, at 2:50 AM, jonathon wrote:

Did I understand the definition that buma/stemra is using for
"commercial" usage correctly?

http://www.bumastemra.nl/nl-NL/MuziekrechtenVastleggen/Flexibel
+Collectief+Beheer/Werkdefinitie+Commercieel+Gebruik.htm

* Elk gebruik van het Werk door for-profit instellingen wordt als
'commercieel gebruik' aangemerkt.
( All usage by a for-profit organization is "commercial usage");
* Werk tegen betaling of andersoortige financi?le vergoeding
(All usage that generates revenue is commercial usage.);
* 'commercieel gebruik' ... werk-, verkoop- en winkelruimtes ...
kerken, (dans-)scholen, instellingen voor welzijnswerk, en dergelijke.
( Commercial usage includes ... in a workplace, sales floor, or shop
space... churches, dance studios, health clinics, etc.);

Everything outside of those three example instances is
"non-commercial" and royalties are not required to be paid.

a) Did I miss any salient points of what constitutes "commercial"?

b) Did I misunderstand any of salient points of what constitutes
"commercial"?

dear Jonathon,
i think your understanding is pretty much to the point. for yoyr
reference here is our (unofficial) translation of the clarification
of commercial usage. let me know if you have any more questions.

Within the scope of the pilot between Creative Commons Netherlands
and Buma/Stemra, ?commercial use? should be taken to mean the following:

Every use of the Work by for-profit institutions is qualified as
?commercial use?.

In addition, within the scope of the pilot, distributing or
publicly performing or making available online the Work against
payment or other financial compensation (including the use of the
work in combination with ads, publicity actions or other similar
activities intended to generate income for the user or a third
party) is qualified as ?commercial use?.

Within the scope of the pilot, ?commercial use? also includes the
distribution or public performance or having broadcasting
organisations make the Work available online, as well as using the
Work in hotel and catering establishments, work, sales and retail
spaces.This also applies to organisations that use music in or in
addition to the performance of their duties, such as, for example,
churches, schools (including dancing schools), institutions for
welfare work, etc. Separate licenses are available from Buma/Stemra
for such kinds of use.

all the best from amsterdam,
paul keller (cc-netherlands)
--
paul keller | knowledgeland
t: +31205756720 | e: pk AT kl.nl | www.knowledgeland.org





------------------------------

Message: 3
Date: Tue, 4 Sep 2007 20:41:58 +0000
From: jonathon <jonathon.blake AT gmail.com>
Subject: Re: [cc-licenses] buma/stemra
To: "Discussion on the Creative Commons license drafts"
<cc-licenses AT lists.ibiblio.org>
Message-ID:
<c4797ebf0709041341gec068e1p9ba588df21ed43fa AT mail.gmail.com>
Content-Type: text/plain; charset=UTF-8

Paul wrote:

i think your understanding is pretty much to the point. for yoyr
reference here is our (unofficial) translation of the clarification
of commercial usage. let me know if you have any more questions.

Thanks.
I guess my Dutch isn't as bad as I thought it was. :)

Within the scope of the pilot between Creative Commons Netherlands
and Buma/Stemra, 'commercial use' should be taken to mean the following:

There aren't any major differences between their (Buma/Stemra) and the
Creative Commons guidelines. The minor differences tend to be edge
cases.

xan

jonathon


------------------------------

Message: 4
Date: Tue, 4 Sep 2007 23:26:02 +0000
From: jonathon <jonathon.blake AT gmail.com>
Subject: Re: [cc-licenses] noncommercial guidelines draft: can I take
this to the bank?
To: erostratus2004-cc AT yahoo.com, "Discussion on the Creative Commons
license drafts" <cc-licenses AT lists.ibiblio.org>
Message-ID:
<c4797ebf0709041626j7ac42961v4043097ed8d9ad4e AT mail.gmail.com>
Content-Type: text/plain; charset=UTF-8

Robert wrote:

My use case is CC-NC images to illustrate a news site.
We are thinking of using Adsense or something similar. The image is an

a) My suggestion would be to find suitable CC-BY or CC-BY-SA images.
Or public domain images.

Yes, you may run into unanticipated issues with them, but you won't be
nailed for either a copyright or license violation. Using an NC image
could easily result in either, or both of those effects.

b) The right to use the image is only the first of roughly a dozen
releases you might have to obtain. (I've yet to see a model release
go along with any CC licensed image.)

However, I want to know how authoritative to view these interpretations.

That is about the closest to an official Creative Common Foundation
statement on what constitutes "commercial" and "non-commercial"
activity that you will find.

Has the wording been vetted very much?

It has been changed several times.
The original page that laid out different scenarios appears to have
been deleted.

Does it represent any sort of consensus among people who would be in
a position to know?

In theory, it simply represents what Creative Commons Foundation
thinks that the license should mean.

If two parties in a lawsuit were to claim that it misrepresents the
meaning of the license, then what it says won't hold any merit with
the court. OTOH, if either party in a lawsuit were to claim that
their understanding of the license is based upon the CC Guidelines,
then it would be considered by the court.

The mailing list seems to disagree about the adsense use case. Is
there any reason why this analysis somehow is more persuasive?

The adsense usage is an edge-case.

If you are a 501(3)c organization with a couple of matching Form 990s
to go along with that exemption, then you _might_ be OK.

Can I take this to the bank?

I wouldn't.

If you don't have a document that outlines what the creator of the
image considers the CC-NC license to mean, you will run into
unexpected, even unpredictable situations.

I guess the best way is to consult an attorney, but I figure an attorney or two hangs around at CC and may have even glanced at the draft already :)

It requires more than a glance at the draft, to grok the effects of
the NC clause.

One _major_ issue is that the CC-NC license does not define
"non-commercial" usage.

The buma/stemra definition for "commercial usage" probably has more
legal weight/standing than the guidelines issued by the Creative
Commons Foundation. because the buma/stemra definition is part of a
legally binding contract.

xan

jonathon


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