Re: BY-SA license in the UK has non-waivered collection society fees?
drew Roberts <zotz@...
2008-08-18 20:49:32 GMT
On Monday 18 August 2008 14:32:58 Terry Hancock wrote:
> drew Roberts wrote:
> >> And point out that, if so, this was exactly the sort of thing
> >> you've been pushing for on-list for some time.
> > For some reason, I am having a hard time wrapping my head around
> > exactly what you are getting at here. It may just be that I am being
> > dense or not attentive enough.
> I don't want to go archive diving at the moment, but you have several
> times argued that "if a user will have to pay fees anyway (to a
> collecting society) then the By-SA license ought to give the author the
> right to claim those fees". IOW: if you not receiving the fees means the
> user doesn't have to pay any, then no fees are due, but if fees must be
> paid then they must go to you (and not dropped into the collecting
> society's war chest which may well be used to harm you).
You are correct, I have been making suggestions along those lines. The details
are important though and I don't know if they have been discussed enough to
be worked out fully in my mind.
> I thought that perhaps this UK license would have just the effect you
> had wanted.
I think it is not even close. For instance, if the law changes next year, the
work still does not waive the rights. Also, it leaves the impression that it
is the creator refusing to waive the rights, rather it should indicate the
fact that the creator would like to but the law will not allow it. (Or the
> >> I studied the text for a bit of this (By-SA 2.0/UK) and
> >> the NC variant (By-NC-SA 2.0/UK), and I don't think it's true. It's
> >> more like clause 2.5 was an accidental hold-over from the NC
> >> version, which was left in by accident. (?!?)
> IOW, I thought that the SA license would "expressly" grant you the
> necessary rights for performance, etc, so that clause 2.5 (the
> "non-waiver") would not apply. HOWEVER, after carefully perusing the
> By-SA 2.0/UK license, I can't find anything that says that (at least not
I agree. It may grant them but later it says not if for commercial which makes
it basically a non-commercial license unless I am really misreading things.
> I also looked very carefully at the By-NC-SA 2.0/UK license, and there's
> not much difference. Doing a 'diff' turns up a few trivial changes
> (capitalization, spacing, etc); one extra definition (for what
> "non-commercial" means); and this (the only _functional_ change
> in the terms that I can see):
> By-SA 2.0/UK says:
> > 2.1 The Licensor hereby grants to You a worldwide, royalty-free,
> > non-exclusive, Licence for use and for the duration of copyright in
> > the Work.
> By-NC-SA 2.0/UK says:
> > 2.1 The Licensor hereby grants to You a worldwide, royalty-free,
> > non-exclusive, Licence for Non-Commercial use and for the duration of
> > copyright in the Work. 33c34
> Does that do it? Are commercial use rights "expressly" enough granted?
> I'm not so sure.
Perhaps if you brought in the NC language as outside evidence, but I would not
feel safe relying on that.
> Here's the definition of "non-commercial" that the license provides:
> By-NC-SA 2.0/UK (definition #6):
> > "Non-Commercial" means "not primarily intended for or directed
> > towards commercial advantage or private monetary compensation". The
> > exchange of the Work for other copyrighted works by means of digital
> > file-sharing or otherwise shall not be considered to be intended for
> > or directed towards commercial advantage or private monetary
> > compensation, provided there is no payment of any monetary
> > compensation in connection with the exchange of copyrighted works.
> And for good measure, here's 2.5 again:
> > 2.5. All rights not expressly granted by the Licensor are hereby
> > reserved, including but not limited to, the exclusive right to
> > collect, whether individually or via a licensing body, such as a
> > collecting society, royalties for any use of the Work which results
> > in commercial advantage or private monetary compensation.
This is indeed the problem clause for me. I have asked for clarification over
on cc-licenses but the post has not come through yet, perhaps still awaiting
> ISTM that most courts would hold section 2.5 to override the earlier
> grant in the case of "any use of the Work which results in commercial
> advantage or private monetary compensation", simply because it is more
> In fact, it really sounds like the license is contradicting itself,
> which is why I wonder if it was a mistake made in converting the
> By-NC-SA version to the By-SA version.
> >> The good news is that someone who released under this license has
> >> expressly allowed you to convert to a later unported or other
> >> locale By-SA license. Thus, the waiver is removable if you derive
> >> from this work. So, you need not fear using this material in your
> >> own mixes.
> > Right. But you could not use it in any fashion where performance
> > rights would be due... (Is that right?)
> Depends on what you mean by "it". If you mean the original work, then,
> yes, I think you're right.
> However, if you mean a remix or "derivative"
> of the work, then I think you are not right -- because you are free to
> adopt a different jurisdiction and/or later version of the license.
Right. We see this the same.
> >> "a Creative Commons iCommons license that contains the same License
> >> Elements as this License"
> >> (You can use an _earlier_ alternate jurisdiction license!)
> >> This loophole was fixed in 3.0, which now says:
> >> "a Creative Commons jurisdiction license (either this or a later
> >> license version) that contains the same License Elements as this
> >> License"
> > Are you sure that this is not the same thing expressed differently?
> As far as my non-lawyer self is concerned, I'm positive.
> Notice that the only difference is the insertion of a parenthetical
> clause to insist on a *later or equal* license version (not an earlier
> > Is your reading of this latter version saying that you can't release
> > your derivative under the license of another jurisdiction?
> I am saying that if you use By-SA 3.0/unported, then you cannot change
> to By-SA 2.0/UK -- because it would mean using an _earlier_ version of
> the license (which version 3.0 forbids).
> This isn't true for the By-SA 2.5/unported -- it would allow you to
> convert to an earlier version as long as you also changed to a different
> jurisdiction. IMHO, it was just a phrasing error in the license drafting
> process, but it does seem to allow this. Since it was changed for 3.0, I
> take that as confirmation that it was a loophole, was noticed, and was
> intentionally fixed.
I had not noticed this bit or remembered it if I had.
> >> So, anyway, if you want to avoid this possibility, then use a
> >> version 3.0 SA license (probably the best recommendation now
> >> anyway).
> > Yup, except where you use a site that doesn't yet have that option.
> So don't use those sites.
> > Actually, I think you can use it in any commercial way that would not
> > cause performance royalties to come due.
> Well, I've argued both ways, but I presently think that is wrong. It
> seems like it ought to be stated more ambiguously -- as it is, it is
> clearly lawyer-bait.
> > And I just went back to read it again and I see you may indeed be
> > correct and I mistaken.
> Well since I changed my opinion, I don't know which one you feel you
> agree with! ;-D
> > So, can someone from cc legal please clear this up? Is this 2.5
> > section on the uk by-sa in there by mistake?
> Or alternatively, is it that the license grant overrides 2.5 whenever
> royalties can be avoided within the law?
You think you are getting a better understanding of this stuff and then. Pow.
right in the kisser.
Your thoughtful posts always appreciated. Anyone know what became of Greg?
all the best,