Development of Creative Commons licenses

[Gisle Hannemyr <gisle AT ifi.uio.no>]

On 09.04.2012 12:46, Christopher Covington wrote:
> What specifically is
> preventing you from registering with performance rights organizations?

*Most* performance rights organizations and collecting societies
insists on exclusive rights (i.e. you cannot do dual licensing).
ASCAP (in the USA) does not, and a few PROs (e.g. Stemra/Buma
in the Netherlands) allow you to exempt single works from licensing
by the pRO (so you can use CC for that work).

But many performance rights organizations requires to the author to
hand over  rights for *all* works (past and future) to the PRO for
exclusive licensing of all rights.

> Lessig mentions that ASCAP agreements are nonexclusive, 

True. But ASCAP is not the typical PRO.

> but it seems clear from the same blog post that there is a good deal
> of FUD flying around that topic [2].
> 2. http://lessig.org/blog/2007/12/commons_misunderstandings_asca.html

I don't think this Lessig blog post is very relevant.  It addresses
a particular statement put out by ASCAP, wich is a very atypical
PRO compared to those European PROs I am somewhat familiar with.
And his answer in some areas is less than helpful.  For instance he
fails to recognise that a significant amount of the income generated
by PROs and  CSs are from secondary uses in public service
broadcasting and education where the term "noncommercial" as defined
by the CC makes no difference (i.e. even works with a "noncommercial"
clause makes the PRO or CS unable to collect and therefore unable to
pass on rolyalties to the artist).

The problem with PROs with respect to CC is that *most* professional
composers and performing artist wish to collect royalties, including
royalties from non-commercial uses such airplay on public service
broadcasting and education - and the current and proposed licenses
is incompatible with that wish.

PROs are important and valuable members of the infrastructure that
ensures public access to culture.  But the current anti-PRO clauses
in *all* variants of the CC licenses only ensures that at least in
*some* jurisdictions (like Norway) this makes the use of CC licensing
incompatible with being a professional composer, author, or performing
artist - so CC remains a fringe phenomenon cultivated by amateurs and
conceptual artists that explore remixing as a genre.

We can change this. We can make CC relevant to popular art and
authorship.  What we need to do is to make *non-free* variants of the
licenses "PRO and CS friendly".  I don't think that would be too
controversial. The "free culture" and "free software" pure-hearts
that seem to dominate the CC membership these days *only* care about
the BY and BY-SA licenses.  This means that those whose main interest
is the so-called "non-free") variants of the CC infrastructure should
have an in-depth discussion about how to design to licenses in other to
best stimulate the *creation* of cultural works.  I think this means
that the CC needs to re-think its position with respect to PROs, CSs,
as well as statutory and compulsory licensing schemes (but again:
*only* in relation to the *non-free* licenses).

So I am still hoping that CC is willing to recognise the great work done
by PROs and CSs to make sure the public has access to culture a no cost,
while at the same time making sure that artists are getting paid through
collective or statutory licensing arrangements.
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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