Development of Creative Commons licenses

["P. J. McDermott" <pjm AT nac.net>]

On 2012-12-14 06:30, P-M wrote:
>> From: cc-licenses-bounces AT lists.ibiblio.org 
>> [cc-licenses-bounces AT lists.ibiblio.org] on behalf of P. J. McDermott 
>> [pjm AT nac.net]
>> Sent: 14 December 2012 06:29
>> To: cc-licenses AT lists.ibiblio.org
>> Subject: Re: [cc-licenses] [cc-community] Commercial Rights Reserved
>>
[...]
>>
>> It seems to me that many people who want to resist such "strong
>> commercialism" are using the wrong license.  I believe that CC BY-SA is
>> a more suitable choice for such goals.
>>
> 
> 
> CC BY-SA does not do what you think it does for many works.

Granted, I did make some unstated assumptions that the underlying works
are modified in some way for inclusion in other works.

>> If Wal-Mart Stores, Inc. wants to license a photograph under the terms
>> of CC BY-SA for use in a greeting card, they'd have to offer to any
>> recipient of the card the same licensing terms for the entire card.
>> Similarly, to license from a musician a song under the terms of CC BY-SA
>> for use in an advertisement, Toyota Motor Corporation would have to
>> offer all viewers the same license to use the whole advertisement.  In
>> both cases, an Adaptation is made.
> 
> 
> Simply printing an image onto a card does not make an adaption of the 
> image.

Here I assumed that the image would likely be cropped, partially
covered, or otherwise not "included in its entirety in unmodified form".

If Wal-Mart Stores, Inc. can manage to include an image in a greeting
card with no such modifications, then yes, CC BY-SA would be
insufficient to prevent the use, since (at least under U.S. case law)
the greeting card is not a derivative work (as you note).

> Simply including a song as part of an advertisment does not 
> create an adapation of the song.

Version 3.0 Unported of the CCPL suite, § 1(a):

    For the avoidance of doubt, where the Work is a musical work,
    performance or phonogram, the synchronization of the Work in timed-
    relation with a moving image ("synching") will be considered an
    Adaptation for the purpose of this License.

CC BY-SA and CC BY-NC-SA 4.0 Draft 2 § 1(a) have similar wording.

Even without that text, an Adaptation of the song is made unless the
song is already about 30 seconds long.  The song would most likely have
to be shortened, if nothing else, for use in an advertisement.

> Simply using the lyrics does not create 
> an adaption of the lyrics.

If by this you mean to refer to the example of the band performing in a
club, then you are correct.  It is not a derivative work (unless the
song is altered), and I did not argue that.

Rather, it is a public performance, which need not be licensed to any
audience members in any particular way.  This is why I said the
licensing choice doesn't affect the band, except of course for the issue
of cover charges.  If the band receives such "private monetary
compensation" for their public performance of the song, then the NC
licenses would arguably not allow this use.

> Simply reprinting a story does not create an 
> adaption of the story.

You are correct.  It seems I did jump to an inaccurate conclusion in
considering the local community publication example.  If the story is
reprinted "in its entirety in unmodified form", then the publication is
indeed a Collection rather than an Adaptation (in CCPL 3.0 parlance).

Either way, the effect is mostly the same, though.  Under the terms of
CC BY-SA, the local community group can include the story in their
publication and charge for copies; and if they don't modify the story,
they don't even have to license the publication to readers in any
particular way.

But under the terms of CC BY-NC and CC BY-NC-SA, the rights to reproduce
and distribute copies of the story in a larger publication in exchange
for "private financial compensation", with or without modification to
the story, are reserved for the story's copyright holder(s).

> For many reuses no derivative rights are invoked, 
> and the SA element is rendered inoperative.

This is most likely true in the "weak commercialism" examples you've
given.  However, in at least one of the "strong commercialism" examples,
a derivative work (and an Adaptation for the purposes of the license) is
most likely made.

(At this point I fear we are certainly diverging from the original topic
of this particular thread.  But I believe this discussion is valuable at
least inasmuch as it helps show the apparent need for NC license texts
that more closely reflect their intended effects.)

-- 
P. J. McDermott                                        (_/@\_)    ,--.
http://www.pehjota.net/                           o    < o o >   / oo \
http://www.pehjota.net/contact.html                 o   \ `-/    | <> |.
                                                o o o    "~v    /_\--/_/