Development of Creative Commons licenses

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

On 11.04.2012 01:47, Ben Finney wrote:
> Gisle Hannemyr <gisle AT ifi.uio.no> writes:

>> PROs are important and valuable members of the infrastructure that
>> ensures public access to culture.

> In a world where any copyright holder can promote their own material
> without transferring their rights, it seems to me PROs are *not*
> valuable for ensuring public access to culture.

OK.  I am not really interested in discussing the role of
Performance Rights Organizations (PROs), so I am going to back
out of that discussion.  Forget I ever mentioned PROs.

So I take a few steps back, and try again to explain just *why*
I think that section 2(b)(2) "other rights" should be replaced
with the following text in CC ver. 4:

   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 (e.g. extended collective
   licenses) for collecting such royalties, such agreements or
   licensing schemes are not invalidated by this Public License.

Here is my argument for having this text in the licenses:

In the Nordic countries, there exists a statutory licensing scheme
that is known as "Extended Collective Licensing" (ECL).  There may
be something similar in other jurisdictions, (possibly under
other names), but the Nordic law is in this area shared between
the Nordic countries, and its the only law about ECL I am familar
with.

ECL is probably one of the most misunderstood copyright tools
in existence.  However, my understanding is the ECL is a blanket
license that works pretty much like a Public License.  I.e. the
ECL automatically grants license holders the right to copy,
distribute or make works available *without* clearing the rights
with individual rights holder.  (The Norwegian ECL also grants
the user the right to adapt a work for use by the - usually
visually - disabled, but no other adaptation rights.)

All cultural works (not only domestic, but also those created
abroad) are by default made available under an ECL in the
Nordic countries.  There is no exclusivity - you are free to
use dual licensing.  If you do, the language in your license
determines what takes precedence, ECL or the "other" license.

The proposed sec. 2(b)(2) in CC ver. 4 is - in essence - an
opt-out clause with respect to ECL.  The language used
in the draft says that in all use-cases, the royalty-free
CC license takes precedence over the royalty-based ECL.

Since, in the Nordic countries, *any* work (i.e. also works
created by foreigners) by default is available under ECL,
ECL benefits the public.  A teacher, for  instance, can
under the ECL system prepare teaching materials containing
*any* copyrighted work without worrying about breaking
copyright.  Without the ECL, only works with a Public
License, e.g. CC, can be used by teachers without
worrying about breaking copyright

In order to take advantage of ECL, the "entity" employing
users of copyrighted works must hold a blanket license.
In the Nordic countries, the law delegates to PROs and CSs
the right to issue such blanket licenses, but that is just
a practicality.  Since these blanket licenses are *not*
in any way connected to membership of the PRO or CS, they
could be issued by some independent organization (including
organizations without members).

The funds collected for the ECLs are, according to the
law,  to be paid to the creators.  Currently, this task
is delegated to such as PROs.  However, the law obliges
them to not discriminate against non-members when
distributing payment.*)

This obligation is important from our perspective.  A PRO such
as TONO requires performers to sign over exclusive rights as a
condition for *membership* in the PRO.   However, there is of
course no way that a PRO can stop *non-members* from
dual-licensing works.

In other words, if a performer or composer does not join a
PRO, and chooses to dual-license his/her works under both
CC BY-SA and ECL, then that performer or composer would
under Nordic copyright law been entitled to his or her
"share" of the funds collected under the ECL part of the
licensing.

Unfortunately, the language in sec. 2(b)(2) makes such
an dual-licensing arrangement pointless.  The effect of
the waiver is that CC will take precedence over ECL in
all use-cases.

In other words, the change I want in CC 4.0 is *not* to make
the ver. 4.0 license compatible with the membership
requirements of various PROs and CSs, but to make
dual-licensing under both ECL and CC a practical
possibility.

The effect I want to achieve is that *if* there exists an ECL
that gives access to the work under ECL, that license should
be considered the primary license.  In all other cases
(i.e. when an ECL license does not exist), the work is available
under whatever  CC-license the creator wants to use.

The way I believe this should work, is that the ECL
provision shall kick in *only* in the Nordic countries and
other jurisdictions that has implemented something like
ECLs. And that it should work just like a "regular" CC license
in all other jurisdictions.

In other words, I want my works to free as in "free speech",
but *not* necessarely free as in "free beer".



*) AFAIK, the PROs and CSs in Norway that collect this money  makes
   a honest effort to fulfil the obligation of paying the creator,
   also when the creator is not a member.

   For instance, if 3 % of the works used under the ECL is believed
   to be musical works created in the USA, 3 % of the funds
   collected by TONO (the Norwegian collecting scociety for
   musical works) is forwarded to ASCAP (because ASCAP is
   considered to be the most representative organization in
   the USA for creators of musical works).

   If there had been a special member organization for creators
   using CC licenses, and the CC licenses, the members of that
   organization would under Nordic copyright law been entitled
   to receive their "share" (as computed by some statistical
   methods I will not explain in detail) of funds collected in
   the Nordic countries for all works dual licensed under
   ECL and CC.
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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