Development of Creative Commons licenses

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

On Monday 28 January 2008 05:52:49 Paul Keller wrote:
> On Jan 25, 2008, at 9:43 PM, drew Roberts wrote:
>
> hey drew,
>
> >>> So, I think the change I propose is really very simple. Leave the
> >>> license
> >>> basically as is but also don't waive where the "user" of our works
> >>> cannot
> >>> take advantage of our royalty free offer for contractual as well as
> >>> legal
> >>> reasons.
> >>
> >> and then how do you get to those royalties?
> >
> > That would be my problem. One thing I could do is talk to my MP and
> > point out
> > the issues.
> >
> >> for that you would need to
> >> be member of a collecting society (which in most cases will not let
> >> you use CC licenses.
> >
> > And here I could point out that they ought to ease upand let me
> > handle my
> > works as I like and that they should represent me and my interests.
> > And that
> > I am speaking to my MP about the inequity of the situation.
>
> yep, but all of this does not require a change in the CC licenses.

Yes, it does. Right now, I waive my royalties, but they collect my royalties. 
I have no rights to the. They do. I am happy to waive my royalties for the 
benefit of the first instance users, but not for the benefit of the CSes and 
their members to my detriment and the detriment of the first time users.

> they basically state that if you use NC you want to be paid for use of
> your works in a venue (+on radio, and on TV and in theatres and in all
> other commercial settings) via a CS or individually and if you use non-
> NC you do not want to be paid.

This is not true. Again. Perhaps for BY, but not for BY-SA. I do get what you 
are saying and it is almost true for performances but not quite. In fact, my 
take is, I am happy to not be paid royalties for performances, etc. of my 
work so long as the royalties are not being paid, but if any royalties are 
paid for the use of my works, I want them. I don't want someone else to get 
them when they have already been paid.

> The only exception (in those 
> jurisdictions that have them) are non-waivable compulsory licensing
> schemes.

Right.

I simply want another exception, or that exception worded differently.

Something like, they are waived if they are not paid / collected, if they are 
paid, they are not waived.

>
> (the best example here is the private copying levy on blanket media in
> a lot of euro countries that gets collected at the moment op purchase
> of the blanket media in the name of all rights holders. the provision
> on compulsory blanket licenses basically states that the CC licenses
> do not intend to mess with these systems)
>
> >> The only exceptions here are currently KODA (dk),
> >> BUMA/STEMRA (nl) and ASCAP/BMI (us). if you are a member of one of
> >> these societies you would probably be well advised to use CC licenses
> >> that are ported to the jurisdiction where the society is based
> >
> > Right, even though I am in the Bahamas, I have thought of trying for
> > ascap or
> > bmi for just such a reason.
> >
> > This leads to another question that I have recently figured I needed
> > to ask
> > here on the CC lists but I was not sure which yet.
> >
> > I am involved with a group:
> >
> > http://lau-cb.peterlutek.com/
> >
> > We soft of formed from a mailing list. I don't know any of the
> > others except
> > online. We are trying to make music together and as you can see from
> > the
> > bottom of the site we are using a Creative Commons Attribution-Share
> > Alike
> > 3.0 United States License for all the works we make together.
> >
> > Does anyone know how well this will work for people using one
> > license but
> > living in another country entirely?
>
> not really my expertise :(

No problem, it was aksed of everyone. I may still get an answer.
>
> >>> So, someone using all BY-SA works in their own venue might not need
> >>> to sign
> >>> with a collection agency at all and could avail themselves of the
> >>> offered
> >>> waiving of rights. Someone who signed a blanket license with an
> >>> agency and
> >>> cannot take a discount as a result of playing my BY-SA works would
> >>> pay no
> >>> more or no less and I should be able to collect my share from the
> >>> society.
> >>
> >> but this scenario should be possible with the existing language.
> >> someone who plays exclusively non-NC licensed stuff does not need to
> >> pay.
> >
> > Oh, but they would. Depending. That is axactly the case I am talking
> > about.
> >
> > Consider this situation if possible:
> >
> > Rights can be waived.
> >
> > Collection society can collect for everyone, members and non-members.
> >
> > Case 1. Venue uses only BY-SA and BY licensed works. Doesn't sign
> > with CS as
> > they use the license with the rights waived. Cool.
>
> cool indeed
>
> > Case 2. Venue uses works with a mixture of licenses. Signs a blanket
> > licens
> > with the CS. As the license stands now, the venue pays for using the
> > BY-SA
> > and BY licensed works but the CS spreads that money out to the other
> > works
> > copyright holders and gives none to the people with the BY-SA nad BY
> > works.
>
> indeed. everything else would be impractical (i know it should not be
> but CSes simply do not have their shit together so that they can do
> track by track invoicing). 

No. In this case, the license could be worded such that my right to collect 
is 
not waived.

> also this is clearly a problem of a 
> relatively small minority of CC using musicians (about 85% of them use
> NC and would be happy to be paid via a CS for the use of their works
> in this context).

You know, I am not satisfied for CC to put the needs of people using NC 
licenses above those of us trying to use the Free licenses. (Or as close to 
Free as CC gets.) In my mind, we are trying to do more for the commons than 
the NC folks and are sacrificing more of our rights. I am cool with that, but 
I don't want to then be treated as a second class citizen by CC. That is not 
cool.

> Our primary focuss so far has been making it 
> possible for these poeple use NC licenses and be a member of a CS,
> which is still impossible almost everywhere in the world (except US,
> NL & DK)

I have no real problem with that being the primary focus temporarily.
>
> > With my proposed changes:
> >
> > Case 1a.  Venue uses only BY-SA and BY licensed works. Doesn't sign
> > with CS as
> > they use the license with the rights waived. Cool.
>
> cool again
>
> > Case 2a. Venue uses works with a mixture of licenses. Signs a
> > blanket licens
> > with the CS. As the license stands now, the venue pays for using the
> > BY-SA
> > and BY licensed works. Because, the venue has a blanket license, the
> > rights
> > are not waived on the BY-SA and BY works and those copyright holders
> > at least
> > have a case to put to the CS.
>
> would indeed be better, but from our interactions with CS this is
> completely unrealistic. 

That's fine and then CC would be out of the mix and I would have a problem 
with the CS and not with CC. I may still end up in the same place moeny wise, 
but I would be blaming someon else and not CC for my problem.

> The CS will not take as a member if you allow 
> commercial uses of your music for free (which BY or BY-SA).

No problem. But they would be collecting royalties that were rightfully mine 
for the use of my music and I could set about raising whatever amount of 
sting I wanted to get them to give me my share as a non-member or to take me 
as a member on my terms.

> As far as 
> they are concerned this is stupid behaviour which threatens the whole
> system of collective management. They will simply not accept that
> music of their members can be played by a commercial venue for free
> (your case 1/1a). So even if CC would change the license now this
> would not result in any practical improvements.

I understand that this might be the temporary result of an improvement to the 
license wording along the lines I propose. But The license problem would be 
fixed and the new problem could then be addressed.
>
> >> in the case of mixed repertoire is really not a problem of the
> >> licenses but of the unwillingness or inability of CSes to look at
> >> repertoire on a track by track basis. if you were a member of a
> >> society they would probably pay you royalties regardless of what the
> >> license says. I do not think changing the unported licenses (and that
> >> means making them even more complicated) would change the realities
> >> on
> >> the ground.
> >
> > It would give me a legal and ethical case to persue.
>
> given the bigger problem at hand (CC using author not being able to to
> join CSes and thus being kept out of the revenue stream even if they
> would like to do so (as expressed by choosing NC licenses) i do not
> think that it is in the intrest of the CC-community to persue this
> particular case which will not help to improve the image of CC in the
> eyes of Collecting Societies.

And I think it needs to be done for us BY-SA folks as well as the NC folks. 
We 
are not second class citizens.
>
> > It would also get venue owners to bring pressure on the collection
> > societies
> > in order to take advantage of the waivers. This might get them to
> > look at
> > the repertoire on a track by track basis.
>
> in my eyes that is a much better strategy. 

But it is less likely to come about without the license change. At least I 
think so.

> most of the delivery chain 
> of music is digital by now and given this the CSes can not go on to
> pretend that track by track collection of royalties is technological
> impossible. Once you have track by track collection of royalties the
> current licenses should work as intended and your problem should be
> solved.
>
> >>> Is my suggestion at leat clear in idea if not in words to you?
> >>
> >> yes it is, but as you can see from the above i do not think that
> >> changing the licenses is the right remedy here. would be interesting
> >> to hear what others on this list think...
> >
> > I too would like to hear more from others.
> >
> > Re complicating the unported licenses. Would you at least take a
> > stab at
> > wording what you think I am trying to get done in as simple a way as
> > possible?
>
> i do not think that the wording of the unported licenses is currently
> up for discussion (unless i have missed something, but i think in that
> case you need to talk to someone from CC HQ anyway).

Hey, what's done is done. Not an issue. The 3.0 licenses are released. But 
why 
can't it be fixed for 3.x?

> Also for the 
> reasons given above, i do not think this would be productive. I really
> think that we should not complicate things beyond the simple rule that
> if you use NC you want to get paid for commercial uses and if you use
> non-NC then you dont. 

I think that is a bogus rule.

This would be just as simple.

If you use NC you want to get paid for commercial uses and if you use
non-NC then you are happy to not be paid but if someone is paid, you want it 
toe be you.

It is not that complicated in thought at least.

> If this does not work in practice (your case 
> 2/2a) then this is something that the direct stakeholders (venue
> owners, CS members) need to adress with the Collecting Societies.

Paul, I am a direct stakeholder. I write song lyrics and I license them 
BY-SA. 
If they ever get any play, royalties are likely to get collected for those 
plays and I could end up having no rights to those royalties even though they 
have been paid. I am trying to address it with CC now as the present license 
ties my hands with respect to the CS.
>
> sorry for being that stubborn :)

That's OK. I do not mind it. I want to be just as stubborn for my side at 
least until I feel sure we fully get what each other is saying. I am not sure 
we are there yet.
> /paul

all the best,

drew