Development of Creative Commons licenses

[Diane Peters <diane AT creativecommons.org>]

Moderator note:  I'd like to merge this discussion about performance rights organizations with related discussion still taking place on Re: Thoughts on NC.  Please use this thread for proposals and feedback on the collecting society proposal contained in d1 (found in Sec. 2(b)(2)).  All related posts have now been moderated through.

 

As to the substance of the discussion itself, one central problem identified is exclusivity. Many collecting societies demand full assignment (the exclusive transfer) of rights over an author's work(s).  This problem predominantly (if not only) arises with societies representing authors and composers of musical works.  But wherever this is the case, the author simply has no ability to use alternative or additional forms of licensing like Creative Commons because they don't have the rights they need to do so.[1]  

 

CC licenses, on the other hand, are non exclusive and can be used alongside other licensing models where those models so permit.  For the most part, it's up to the creators to choose (or not) to participate in a collecting society that requires exclusivity.  Ideally, we would like all creators to have the ability to choose our licenses if they think our licenses are right for them.  But there's nothing CC can do once exclusivity is the path chosen.[2]  No revision to the definition of NC itself or in the way CC licenses treat royalties can change the reality that where collecting societies take an exclusive assignment of rights, the creator is no longer able to use CC.

 

The question is then one of how CC licenses operate for those authors who are members of collecting societies but remain free to apply a CC license in at least some situations.  The treatment in 4.0d1 is exactly the same as in v3.0:  in NC licenses, the right to collect is waived where possible for NC uses and otherwise fully reserved; and in the commercial licenses, the right to collect is waived for all uses where possible and otherwise fully reserved.[3]  Collecting societies (through via their members using CC) retain the right to collect royalties for commercial uses under all NC licenses, and where no waiver is allowed under the commercial licenses as well.

 

Continuing with the existing 3.0 approach seems reasonable and fair on balance: for those rights the licensor is expressly allowing, any corresponding right to collect is waived (but only where possible), and otherwise not.  Shifting to another model, e.g., one that would allow licensors to reserve all rights to collect for uses the licensor is specifically encouraging seems to undermine the permissions being granted and leaves licensees exposed more so than the current provision already does (through its reservation when waiver is not possible).

 

Eager to hear thoughts in return.

 

Diane

 

[1]  See http://wiki.creativecommons.org/Before_Licensing#Are_you_a_member_of_a_collecting_society.3F_If_so.2C_does_it_allow_you_to_CC-license_your_works.3F

 

[2]  Though we are trying to work with collecting societies that demand exclusivity through time-limited pilots that we hope have the effect of encouraging a relaxation of their requirements.  wiki.creativecommons.org/Collecting_Society_Projects

 

[3] 
Note that the language in d1 is drafted so that it does not need to be
modified in each of the six licenses, unlike the current 3.0 structure where
the provisions are tweaked slightly and moved to different locations in the
license depending on whether commercial uses are allowed or prohibited.

 

On Tue, Apr 10, 2012 at 6:54 PM, Gisle Hannemyr <gisle AT ifi.uio.no> wrote:

On 10.04.2012 00:47, Blaise Alleyne wrote:

> I'm not sure there's anything that can be done from the CC side on
> opening the possibility of some sort of dual licensing, at least
> with respect to free CC licences...

That won't fly with most PROs.  Most PROs insist that you do
not dual license the specific rights you've already assigned to
the PRO to others (i.e. the right to collect royalties - they
don't care about other rights, such as so-called "big" rights).

I've discussed this extensively with TONO (the Norwegian PRO), and
they say that they think the problem is with the CC licenses.  If
the license was changed to allow the PRO to collect royalties, then
TONO could not object to its members CC licenses, because then the
CC license would not contest the license the performer/composer
already has assigned to TONO (i.e. there would be no conflict).

That is why I have proposed this change for version 4.0.

> from what I've gathered, it's more of a problem with PRO membership
> requirements and the assumption that they'll manage all performance
> rights for artists... not sure how prevalent that is among other
> PROs besides SOCAN...

As far as I know, it is a very common requirement.  The only PRO I
know about that allows for parallel licensing is ASCAP in the US.

PROs are member-governed organisations.  This means that the
requirements for membership is what the majority of members
decide should be the requirements for membership.  Most members
of TONO I've talked to seems to like the present requirements,
so I don't expect this to change soon.
--
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
========================================================================
   "Don't follow leaders // Watch the parkin' meters" - Bob Dylan
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--
Diane M. Peters, General Counsel
Creative Commons
cell: +1 503-803-8338
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http://creativecommons.org/staff#dianepeters

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