Development of Creative Commons licenses

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

On Monday 09 April 2012 01:16:38 Gisle Hannemyr wrote:
> On 08.04.2012 02:01, Josh Woodward wrote:
> > Another significant issue for me, which I discovered only later, was that
> > CC-BY is incompatible with performing rights organizations. Logically, as
> > a musician, it seems like I should be able to license my music outside of
> > Creative Commons and collect the royalties from that. For instance,
> > someone comes to me and wants to use my music in a commercial, but they
> > need a traditional license because they can't provide attribution. I'm
> > not able to collect royalties on that, since CC-BY works can't be
> > registered with PROs. Again, being ignorant of all things legalese, there
> > may be a good reason for this, but it seems really arbitrary to me.
>
> I believe that the reason CC BY and CC BY-SA is made incompatible with
> Performing Rights Organizations (PROs) or Collecting Societies (CSs)
> is that there is a policy decision to make those licenses to be
> Free Culture Licenses, as defined here:
>    http://freedomdefined.org/Definition
>
> I understand and respect that policy.

I think the problem lies at least as much with the PROs or CSs as it does 
with 
CC.
>
> However, I see no reason why a blatantly *non-free* CC license
> (e.g. those with a NC or ND clause) needs to be incompatible with
> PROs or CSs.

There is no reason why BY or BY-SA should be incompatible either.
>
> In Norway, the incompatibility with PROs or CSs simply has the
> effect that *no* professional music is released under CC.
> This is because there is a well-oiled system where the government,
> under a blanket license, distributes significant amounts of money
> to the composers and performing artists' PRO to compensate for free
> use of their works in education, for allowing the general public
> to copy works non-commercially.  In addition, the composers and
> performing artists' PRO collects under a blanket license for use
> of works in broadcasting, network "radio" (i.e. streaming that is
> free to the public), bars, restaurants, elevators, etc.  These
> funds are then re-distributed to the members of the PRO.  The amount
> each member receives is roughly based on how much "use" his/her works
> see in monitored channels in education and broadcasting, but there
> also some funds given on other criteria (project grants,
> start-up stipends to young artists, etc.).  What this means is that
> anyone that is eligible for membership in Norway joins the PRO in
> order to receive "their" part of this revenue stream.  While
> members of the PRO can opt-out and use CC (on the condition of
> waiving any funds collected by the PRO for that work), so far,
> no Norwegian PRO member has done so yet.

Since all CC licenses are non-exclusive and one could license a work under a 
CC license and whatever license the professionals in Norway currently use, 
surely the roadblock is the PROs or CSs refusing to deal with such 
multi-licensed works.
>
> I am a writer, and the author's guild (which I am a member of)
> also have a blanket license where it collects money from the
> government for the use of secondary works in education, etc.
> (secondary use here means printouts from the Internet, and
> Xerox copies of printed works), for providing free adaptions
> of books to the disabled (i.e. braille and audio versions),
> for giving the general public free access to printed works
> through libraries, and as compensation for a free on-line service
> provided by the Norwegian National Library where individuals
> can download ebooks and scanned copies of printed books.
>
> I 2010, the amount distributed to Norwegian author's
> under the above blanket licenses was NOK 150 million
> (about USD 25 million).  As a member of the Author's Guild,
> I would have been entitled to my share of this.  However,
> since I license my books and online tutorials under CC BY-NC-ND,
> I am not entitled to collect any of this money.  The ironic bit
> is of course that if I had received some of this government money,
> I could afford to take  create *new* tutorials, etc.
>
> I happen to think that PROs and CSs constitute an important part
> of the culture ecosystem.  By providing flexible blanket
> licenses to big users such as the government, libraries
> (including on-line libraries), education and broadcasters, the
> PROs and CSs are instrumental to giving the general public and
> the disabled free and perpetual access to cultural works.
>
> I personally think that the CC community needs to understand and
> recognise the important work done by the PRO and CS collectives
> to make culture freely available to the public, while at the
> same time having in place a system for monetary compensation
> for creators and performers that can be used to fund creation
> of new works.
>
> It is a mystery for me that the CC seems to go out of its
> way to stop composers, performing artists, and authors from
> receiving money from the government, broadcasters, and other
> large and affluent users of cultural works.
>
> In other words - I think that the CC should open a door for
> for creators that want to permit verbatim non-commercial
> copying of their works, while at the same time be a member
> of a PRO or CS and collect the royalties they will be
> entitled to as a result of this membership.  Currently, such
> creators cannot use a CC license without a loss of revenue.
>
> To do this, the clause 2(b)(2) -  where the creator waives the right
> to collect royalties through any voluntary collecting society or
> statutory or compulsory licensing scheme - should not be part of
> the following licenses (BY-ND, BY-NC, BY-NC-SA, BY-NC-ND).

I have suggested in the past that the clause be reworded so that it is only 
waived for BY-SA (& BY?) where the waiver would result in a monetary benefit 
for the final licensee.

This would allow (actually make it clear that what I think is allowed 
currently really is allowed) a musician licensing his music BY-SA to collect 
from a PRO or CS just like anyone else. (Well not quite if the PROs & CSs 
change their current licensing habits down the road.
>
> For this amendment to have any effect, it also necessary to make
> it clear that public service broadcasting and public education
> (both are in Norway funded by the government and perceived by
> the general public as non-commercial) is not exempted from
> royalty payment through PROs and CSs under the licenses where
> the licensor does not waive rights to collect royalties through
> collective licensing schemes.
>
> Here is my proposed text for 2(b)(2) in BY-ND, BY-NC, BY-NC-SA,
> BY-NC-ND (BY and BY-SA shall retain the text of the current draft).
>
>   (2) The Licensor waives the right to collect individual royalties
>   from You.  However, where the Licensor has entered into a
>   voluntary agreement with a collecting society that is entitled
>   to collect royalties on behalf of the Licensor, or where there
>   exists a statutory or compulsory licensing scheme for
>   collecting such royalties, such agreements or licensing schemes
>   are not invalidated by this Public License.

For my BY-SA stuff I would want to collect from the PRO or CS depending on 
whether the amount they collect from the person using my stuff goes up or 
down depending on their using Free licensed stuff or not.

As I understand it here, PRS gets a percentage of revenue. The percentage 
will 
not go down should some Free music get played. (If a lot of Free music got 
played, perhaps the percentage may go down but we seem to be a long way from 
that and you would still have to take into account the attribution issues.)

Therefore, my licensee pays the same, but my not getting a cut only gives a 
bigger slice of the pie to those doing non-Free music. It does not benefit 
the people playing my Free music. (Let's pretend for a second or two that 
these people exist shall we?)

If this is not a sufficient solution for those doing the non-Free thing, let 
them have more controls in their licenses.

all the best,

drew