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drew Roberts | 1 Aug 2008 22:56

Copyright enforcement and CC BY-NC licenses

So, this is an odd question I thought of the other day while I was thinking of 
other angles that I hope to remember and post about as well. (I think one was 
re BY-NC-SA (hey Greg!)

So, you build on a BY-NC work and register your copyright. You license your 
new work also BY-NC.

Someone violates the copyright on your work. You sue. You are entitled to 
statutory damages right? You collect. Are you now guiilty of violating the NC 
licneses of the works yours built upon?

Is that train of thought clear?

all the best,

drew
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Fred Benenson | 2 Aug 2008 18:40
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Re: Copyright enforcement and CC BY-NC licenses



On Sat, Aug 2, 2008 at 5:56 AM, drew Roberts <zotz-PzwbnfbMfTpBDgjK7y7TUQ@public.gmane.org> wrote:
So, this is an odd question I thought of the other day while I was thinking of
other angles that I hope to remember and post about as well. (I think one was
re BY-NC-SA (hey Greg!)

So, you build on a BY-NC work and register your copyright. You license your
new work also BY-NC.

Someone violates the copyright on your work. You sue. You are entitled to
statutory damages right? You collect. Are you now guiilty of violating the NC
licneses of the works yours built upon?

Is that train of thought clear?

all the best,

drew

To me there are two questions here.

One is: Does a lawsuit (including punitive damages)  settlement constitute "commercial" gain such that it would violate an upstream NC license?

IANAL, but the only interpretation in which a settlement would constitute commercial gain is in a very narrow, and perhaps conspiratorial view of how corporations use "intellectual property" to gain commercial advantage over their competitors (submarine patents were mentioned, but there are other cases involving what could be considered submarine copyrights).

Even granting these cases as commercial, I still think that the most conservative conclusion would be that it "depends" on the circumstances of the case.

Other than that, would we really want a hard and fast rule of whether a lawsuit plaintiff's suit should be considered commercial? It seems to me in contrast to the delibatory nature of the coruts.

Second question, however, relating to the nature of downstream violations -- What is the difference between a NC violation and a BY-SA situation where someone downstream (let's  say 8 generation after the first BY-SA work is released) violates the license?

How do you determine who has the right to take the violator to court? Is there a precedent for this in the free software movement?



F



 

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Kevin Phillips (home | 1 Aug 2008 23:41

Re: Copyright enforcement and CC BY-NC licenses

Hey Drew,

I'm following it I think, so something like this :

Person A creates a piece of music and releases it BY-NC
Person B creates a remix of Person A's BY-NC music (and attributes 
accordingly)
Person C sells copies of Person B's remix breaking the NC terms of the 
license and attributes neither Person A or B.

I have additional questions myself about this:

So Drew's question (if I'm understanding it correctly):
1) If Person B sues Person C for violating the license terms, is Person B 
gaining commercially and breaking the terms of Person A's license if he 
collects damages?

My additional questions:
2) Does the violation also carry through to the originator, Person A?  Can 
she also sue Person C?

3) What role does copyright law play in this situation?
    ie. Is this simply a case of violating the CC license, and so that's the 
focus of the case.  Or
        does a person's rightful copyright in some way trump the CC license 
once a violation takes place?

If Person A cannot sue Person C, then what happened to her rights and 
license along the way?  I've asked a similar question before about 
attribution inheritance, I've seen many instances of top-level-only 
attribution which seem to me to be agaist the spirit of the license.  Drew, 
your question made me think about this from a slightly different angle. 
IMHO everyone involved should be attributed at all levels of remix 
inheritance, and everyone should be able to defend their rights and license 
attached to their individual input.

Thoughts?

Kevin

----- Original Message ----- 
From: "drew Roberts" <zotz@...>
To: <cc-community@...>
Sent: Friday, August 01, 2008 9:56 PM
Subject: [cc-community] Copyright enforcement and CC BY-NC licenses

> So, this is an odd question I thought of the other day while I was 
> thinking of
> other angles that I hope to remember and post about as well. (I think one 
> was
> re BY-NC-SA (hey Greg!)
>
> So, you build on a BY-NC work and register your copyright. You license 
> your
> new work also BY-NC.
>
> Someone violates the copyright on your work. You sue. You are entitled to
> statutory damages right? You collect. Are you now guiilty of violating the 
> NC
> licneses of the works yours built upon?
>
> Is that train of thought clear?
>
> all the best,
>
> drew
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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drew Roberts | 2 Aug 2008 00:07

Re: Copyright enforcement and CC BY-NC licenses

On Friday 01 August 2008 17:41:14 Kevin Phillips (home) wrote:
> Hey Drew,
>
> I'm following it I think, so something like this :
>
> Person A creates a piece of music and releases it BY-NC
> Person B creates a remix of Person A's BY-NC music (and attributes
> accordingly)
> Person C sells copies of Person B's remix breaking the NC terms of the
> license and attributes neither Person A or B.

You could violate the BY of a BY-NC license or the NC of a BY-NC license. 
BY-NC-SA and BY-NC-ND have other terms to violate as well.
>
> I have additional questions myself about this:
>
> So Drew's question (if I'm understanding it correctly):
> 1) If Person B sues Person C for violating the license terms, is Person B
> gaining commercially and breaking the terms of Person A's license if he
> collects damages?

Right. Thats is the question. When B collects damages from C does that cause 
him to run afoul of the NC part of his own BY-NC license from A?
>
> My additional questions:
> 2) Does the violation also carry through to the originator, Person A?  Can
> she also sue Person C?

I would think A can also sue C but would appreciate a more informed answer. 
However, if A did not register and B did, B is entitled to statutory damages 
whereas A is not. Is this correct?
>
> 3) What role does copyright law play in this situation?
>     ie. Is this simply a case of violating the CC license, and so that's
> the focus of the case.  Or
>         does a person's rightful copyright in some way trump the CC license
> once a violation takes place?

I am not sure I get this question?
>
> If Person A cannot sue Person C, then what happened to her rights and
> license along the way?  I've asked a similar question before about
> attribution inheritance, I've seen many instances of top-level-only
> attribution which seem to me to be agaist the spirit of the license.

I think you would have to attribute up the chain. Or at least the first and 
last in the chain, but certqainly not just the first surely? (And I don't 
think just the first and last either.) Proper answers anyone?

> Drew, 
> your question made me think about this from a slightly different angle.
> IMHO everyone involved should be attributed at all levels of remix
> inheritance, and everyone should be able to defend their rights and license
> attached to their individual input.

Yes. But anyone other than the top of an NC chain cannot show damages and so 
cannot prevail where they did not register their copyrights??? Other than to 
perhaps get an injunction or what have you. By definition, they cannot suffer 
monetary harm as they only have an NC license to begin with... (Well, I guess 
there could be some ways around this logic and I would be interested in 
hearing any thoughts.)
>
> Thoughts?
>
> Kevin
>
> ----- Original Message -----
> From: "drew Roberts" <zotz@...>
> To: <cc-community@...>
> Sent: Friday, August 01, 2008 9:56 PM
> Subject: [cc-community] Copyright enforcement and CC BY-NC licenses
>
> > So, this is an odd question I thought of the other day while I was
> > thinking of
> > other angles that I hope to remember and post about as well. (I think one
> > was
> > re BY-NC-SA (hey Greg!)
> >
> > So, you build on a BY-NC work and register your copyright. You license
> > your
> > new work also BY-NC.
> >
> > Someone violates the copyright on your work. You sue. You are entitled to
> > statutory damages right? You collect. Are you now guiilty of violating
> > the NC
> > licneses of the works yours built upon?
> >
> > Is that train of thought clear?
> >
> > all the best,
> >
> > drew
> > _______________________________________________
> > cc-community mailing list
> > cc-community@...
> > http://lists.ibiblio.org/mailman/listinfo/cc-community
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
> !DSPAM:48938328259721804284693!
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jonathon | 2 Aug 2008 03:13
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Re: Copyright enforcement and CC BY-NC licenses

On Fri, Aug 1, 2008 at 15:07, drew Roberts  wrote:

> By definition, they cannot suffer monetary harm as they only have an NC license to begin with.

An NC license is the only Creative Commons license that allows a
musician to collect royalties.  As such, they can easily show
financial harm.

For all content creators that use an NC license, the financial harm is
the amount that they would have been paid in royalties, had permission
to commercially distribute the material been obtained.

xan

jonathon
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Lucas Gonze | 5 Aug 2008 23:56
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Re: Copyright enforcement and CC BY-NC licenses

On Fri, Aug 1, 2008 at 6:13 PM, jonathon <jonathon.blake@...> wrote:
> An NC license is the only Creative Commons license that allows a
> musician to collect royalties.  As such, they can easily show
> financial harm.

An attribution-sharealike license allows the musicians to collect
royalties on all reproductions that aren't under the same license.
For example, if attribution-sharealike is used on a song which is in a
commerial, and the commercial itself isn't under that license, then
the commercial is an unauthorized use which is just as liable as it
would be material not under a permissive license.
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drew Roberts | 6 Aug 2008 00:38

Re: Copyright enforcement and CC BY-NC licenses

On Tuesday 05 August 2008 17:56:09 Lucas Gonze wrote:
> On Fri, Aug 1, 2008 at 6:13 PM, jonathon <jonathon.blake@...> wrote:
> > An NC license is the only Creative Commons license that allows a
> > musician to collect royalties.  As such, they can easily show
> > financial harm.
>
> An attribution-sharealike license allows the musicians to collect
> royalties on all reproductions that aren't under the same license.
> For example, if attribution-sharealike is used on a song which is in a
> commerial, and the commercial itself isn't under that license, then
> the commercial is an unauthorized use which is just as liable as it
> would be material not under a permissive license.

Sure, but only the NC option lets you collect royalties for 
usage "unde/withinr" the license, right? And only for the "top" copyright 
holders, right? (Anyone further down would be making use of statutory 
licenses and not the NC license right? If not, please explain for someone who 
is slow on the uptake with this angle.

Would such a commercial need the copyright holder's permission for the use 
(ie. could the use be denied?) or is this subject to a statutory license (in 
some places)?

all the best,

drew
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Lucas Gonze | 6 Aug 2008 01:17
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Re: Copyright enforcement and CC BY-NC licenses

On Tue, Aug 5, 2008 at 3:38 PM, drew Roberts <zotz@...> wrote:
 > Sure, but only the NC option lets you collect royalties for
> usage "unde/withinr" the license, right?

Paying royalties is a way to get a license.  If you need to pay
royalties it's because you needed a license.  If your usage is within
the NC terms, you don't need to pay royalties.

It's the same for both SA and NC.  Usage under the license doesn't
require royalties, and usage outside the license does require some
other kind of license like the webcasting compulsory.

I don't mean to be splitting hairs.  I just don't want to let the idea
go unchallenged that SA makes royalties go away.
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drew Roberts | 6 Aug 2008 01:34

Re: Copyright enforcement and CC BY-NC licenses

On Tuesday 05 August 2008 19:17:54 Lucas Gonze wrote:
> On Tue, Aug 5, 2008 at 3:38 PM, drew Roberts <zotz@...> wrote:
>  > Sure, but only the NC option lets you collect royalties for
> >
> > usage "unde/withinr" the license, right?
>
> Paying royalties is a way to get a license.  If you need to pay
> royalties it's because you needed a license.  If your usage is within
> the NC terms, you don't need to pay royalties.

Yup, I think I was being a bit dense with that particular thinking.
>
> It's the same for both SA and NC.  Usage under the license doesn't
> require royalties, and usage outside the license does require some
> other kind of license like the webcasting compulsory.
>
> I don't mean to be splitting hairs.

No, please do if it means we get things right.

> I just don't want to let the idea 
> go unchallenged that SA makes royalties go away.

Well, right. Which makes me wonder when someone will step up with a cc+ game 
that takes SA works into account from the break (did I miss one or forget 
about one I saw already?) and when a collection society will figure out how 
to play the SA game or a SA friendly CS will arise. (Are there any now?)

all the best,

drew
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drew Roberts | 2 Aug 2008 05:07

Re: Copyright enforcement and CC BY-NC licenses

On Friday 01 August 2008 21:13:52 jonathon wrote:
> On Fri, Aug 1, 2008 at 15:07, drew Roberts  wrote:
> > By definition, they cannot suffer monetary harm as they only have an NC
> > license to begin with.
>
> An NC license is the only Creative Commons license that allows a
> musician to collect royalties.  As such, they can easily show
> financial harm.

Not if you use the NC license because you built on the NC licensed work of 
another.
>
> For all content creators that use an NC license, the financial harm is
> the amount that they would have been paid in royalties, had permission
> to commercially distribute the material been obtained.

They can't be paid royalties as their building on an NC licensed work 
precludes them from making commercial use of the work they built on and so 
they can't be paid royalties for thier work.

Now, they can perhaps reach an arrangement with the original author outside 
the confines of the NC license, or in some places thay can side step the CC 
license game all together and use a statutory license instead even if the 
original creator objects.

If I am mistaken in this thinking, it would not the the first time and I would 
be happy to have the actual situation made clear to me, but that is the 
general way I get this situation at this time.

If we are talking about the original creator who holds an unencumbered 
copyright and first put the BY-NC on the original work, it is possible to 
show financial harm although from reading in years gone by, I am not so sure 
it is as easy as you say otherwise I am not sure there would have been the 
big push for statutory damages. Again, I could be wrong and examples would be 
most welcome.
>
> xan
>
> jonathon

all the best,

drew
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jonathon | 2 Aug 2008 06:20
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Re: Copyright enforcement and CC BY-NC licenses

On Fri, Aug 1, 2008 at 20:07, drew Roberts  wrote:

> They can't be paid royalties as their building on an NC licensed work precludes them from making
commercial use of the work they built on and so they can't be paid royalties for their work.

That is _not_ what the NC license states.

One of the ironies of the creative Commons licenses, is that the NC
one is the only way that makes an explicit mention of royalty
payments, and that they may be collected.

xan

jonathon
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drew Roberts | 2 Aug 2008 14:17

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 00:20:45 jonathon wrote:
> On Fri, Aug 1, 2008 at 20:07, drew Roberts  wrote:
> > They can't be paid royalties as their building on an NC licensed work
> > precludes them from making commercial use of the work they built on and
> > so they can't be paid royalties for their work.
>
> That is _not_ what the NC license states.
>
> One of the ironies of the creative Commons licenses, is that the NC
> one is the only way that makes an explicit mention of royalty
> payments, and that they may be collected.

Jonathon,

So, if you make a song and release it BY-NC, I cam make a new song based on 
yours and release mine BY-NC as well and get paid royalties on my song 
without violating your NC license? If so, I am sure we would all like to know 
how this works. (Without arrangements between us outside the scope of the 
license.)

I know I can collect royalties on my own original song which I put an NC 
license on.
>
> xan
>
> jonathon

all the best,

drew
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jonathon | 2 Aug 2008 17:35
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Re: Copyright enforcement and CC BY-NC licenses

On Sat, Aug 2, 2008 at 05:17, drew Roberts  wrote:

> So, if you make a song and release it BY-NC, I cam make a new song based on yours and release mine BY-NC as well
and get paid royalties on my song without violating your NC license?

Person A writes a poem, that is released under CC-BY-NC
Person B likes the poem, and sets it to music.  That score is released
under CC-BY-NC
Person C likes the poem, and the music, but arranges it differently.
That arrangement is released under CC-BY-NC
Person D likes all of the above, and releases it as a CD, under the CC-BY-NC.

Person E like's Person's D CD, and proceeds to sell it in a store.

Person A through D collect royalties thru different collection
societies.   However, none of them granted Person E the right to sell
the product.  Furthermore, US Federal law does not grant Person E the
right to sell that product either.

Where all this gets complicated, is who paid who, and how much was
paid, to the various collection societies, unions, and other
organizations that exist to separate musicians from their income.

xan

jonathon
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drew Roberts | 2 Aug 2008 19:26

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 11:35:02 jonathon wrote:
> On Sat, Aug 2, 2008 at 05:17, drew Roberts  wrote:
> > So, if you make a song and release it BY-NC, I cam make a new song based
> > on yours and release mine BY-NC as well and get paid royalties on my song
> > without violating your NC license?

Jonathon, help me out here in my ignorance. Have you specifically chosen a 
situation below which avoids the problem in the question posed?

I will try and ask questions that illustrate my ignorance and why I ask.
>
> Person A writes a poem, that is released under CC-BY-NC

Good.

> Person B likes the poem, and sets it to music.  That score is released
> under CC-BY-NC

Does person B need to make use of person A's BY-NC license to do this? If not, 
then the situation is not relevant to the real question being posed. We need 
to answer this for cases where person B cannot do what they do except withing 
the confines of the license offered by A.

> Person C likes the poem, and the music, but arranges it differently.
> That arrangement is released under CC-BY-NC

Again. Does person c need to make use of person A's or person B'sBY-NC license 
to do this?

> Person D likes all of the above, and releases it as a CD, under the
> CC-BY-NC.

Same questions and possible objections as above.
>
> Person E like's Person's D CD, and proceeds to sell it in a store.
>
> Person A through D collect royalties thru different collection
> societies.   However, none of them granted Person E the right to sell
> the product.  Furthermore, US Federal law does not grant Person E the
> right to sell that product either.
>
> Where all this gets complicated, is who paid who, and how much was
> paid, to the various collection societies, unions, and other
> organizations that exist to separate musicians from their income.

So. Just in case your example allows the early players to do what they do 
outside of the confines of the upstream NC licensors...

Person A writes words and music and records a song. Releases the whole shebang 
under cc BY-NC-SA. (I added SA to avoid the complication of being able to 
change the license downstream.

Person B records a cover version with changed lyrics and releases as BY-NC-SA 
as well.

Doesn't B using the NC license from A preclude B from using the work 
commercially? If so, how can B collect royalties? Isn't collecting royalties 
considered a commercial use? (Other than operating under other licensing 
schemes than the cc BY-NC-SA one that we are discussing?

>
> xan
>
> jonathon

all the best,

drew
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jonathon | 2 Aug 2008 23:11
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Re: Copyright enforcement and CC BY-NC licenses

On Sat, Aug 2, 2008 at 10:26, drew Roberts wrote:

> Jonathon, help me out here in my ignorance. Have you specifically chosen a situation below which avoids
the problem in the question posed?

For music, as best as I can tell, there is no way to avoid that problem.

>Does person B need to make use of person A's BY-NC license to do this?

Derivative work.

Under US law, one is automatically allowed to make derivatives,
provided the appropriate royalties/permissions are obtained.  In other
countries, the situation is more or less the same.  (The major
difference is whether or not the derivative work affects the moral
rights of the content creator.)

The NC license grants permission, providing the derivative work is not
commercially used.
[For the purposes of this discussion, "commercial usage" is defined as
"non-gratis distribution of NC content on any physical media." (I'm
over-simplifying things here.)]

> So. Just in case your example allows the early players to do what they do outside of the confines of the
upstream NC licensors...

> Person A writes words and music and records a song. Releases the whole shebang under cc BY-NC-SA. (I added
SA to avoid the complication of being able to change the license downstream.

That would  be the release as sheet music.

> Person B records a cover version with changed lyrics and releases as BY-NC-SA as well.

That would be the release as an ogg track.

> Doesn't B using the NC license from A preclude B from using the work commercially?

Yes.  However, one can still record a cover version, and release it,
without it being "commercial" in nature.  ( Distribution as a "thank
you gift' for donations to a non-profit, is one example that the CC NC
Guidelines offer.)

The commercial usage would be releasing the sheet music and OGG track
on a DVD, that is then sold by CoSMos, Tower Records, and similar
places.  (OK, both Tower Records, and CoSMoS are out of business. The
last time I bought a new CD that wasn't at a live performance was
almost a decade ago.  (That was a CD by 阿妹. I later discovered that
had I sent her a dollar, she would have received more money, than my
purchase of the CD earned for her.))

> If so, how can B collect royalties? Isn't collecting royalties considered a commercial use?

Going by the CC licenses, and guidelines, collecting royalties need
not be commercial usage.

xan

jonathon
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Peter Brink | 3 Aug 2008 00:58
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Re: Copyright enforcement and CC BY-NC licenses

jonathon skrev:
> 
> Under US law, one is automatically allowed to make derivatives,
> provided the appropriate royalties/permissions are obtained.  In other
> countries, the situation is more or less the same.  (The major
> difference is whether or not the derivative work affects the moral
> rights of the content creator.)
> 

In fact the "normal" situation is that you are allowed to make 
derivatives (adaptations) without any kind of permission and the creator 
of the derivative work gets 100% of the copyright, but he needs 
permission from the copyright holder of the "original" work to publish 
and distribute his adaptation. In a common law jurisdictions you need 
permission to create adaptations.

/Peter Brink
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jonathon | 3 Aug 2008 02:29
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Re: Copyright enforcement and CC BY-NC licenses

On Sat, Aug 2, 2008 at 14:42, drew Roberts  wrote:

> Ah, ok, you are thinking bands and I am thinking broadcast radio.

Even with broadcast radio, somebody other than the DJ has to track
what is played, and when it is played. (DJ's are notoriously inept at
keeping traffic logs.)

> So, is say a bar has a live band some night and does as you suggest, who pay the fees? the bar, the band, or both?

The venue always pays the collection societies.

> Does any have figures for real word fee structures?

I don't remember the dollar amounts. :(
The club I used to hang out at had a US$10.00 cover charge.
Everything collected at the door was given to the band. Even on an
excellent night for the band, the collecting society tab was more than
the band earned.  (Figure on 150+ people in the club, on an excellent
night.)

Here is the way one club owner explained the costs to me.
Have a "three drink minimum".
* The first drink goes to the collecting society;
* The second drink is split between the various licensing authorities,
and the band;
* The third drink covers the cost to hire employees, and maintain the bar;
* The fourth drink was when the bar could begin to think that there
might be a net profit, for the evening.

###

http://www.ccli.com/usa/WhatWeOffer/LicenseFees.aspx is a link to the
copyright license fees for products handled by CCLI.

For the typical congregation in the US, that fee is US$170 for the
right to do the following:
    *  Print songs, hymns and lyrics in bulletins, programs, liturgies
and songsheets for use in congregational singing;
    * Create your own customized songbooks or hymnals for use in
congregational singing;
    * Create overhead transparencies, slides or use any other format
whereby song lyrics are visually projected (such as computer graphics
and projection) for use in congregational singing;
    * Arrange, print and copy your own arrangements (vocal and
instrumental) of songs used for congregational singing, where no
published version is available;
    * Record your worship services (audio or video) provided you only
record live music. Accompaniment tracks cannot be reproduced. You may
charge up to $4 each for audiocassette tapes and CDs, and $12 each for
videotapes and DVDs;

If the congregation wants to broadcast that service live, they have to
deal with various other agencies, such as _The Harry Fox Agency_,
which has no qualms about claiming that payments on behalf of Charles
Wesley (1707-1788) must be made to them.

On Sat, Aug 2, 2008 at 15:58, Peter Brink  wrote:

> but he needs permission from the copyright holder of the "original" work to publish and distribute his adaptation.

Under US law, permission to distribute a derivative audio work is
automatically granted, once the royalty payments have been made.  The
copyright owner has no option, but to allow the derivative work.

However, for non-audio media, the copyright owner does have the option
of refusing to allow the distribution of a derivative work.
(Arguably, the copyright owner also has the option to refusing to
allow the creation of a derivative work.)

For both audio and non-audio works, the creator of the original work
does get a royalty payment.   For audio media, it is a predetermined
amount.  For other types of media, it is negotiated between the
copyright owners.

xan

jonathon
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drew Roberts | 3 Aug 2008 14:59

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 20:29:08 jonathon wrote:
> On Sat, Aug 2, 2008 at 14:42, drew Roberts  wrote:
> > Ah, ok, you are thinking bands and I am thinking broadcast radio.
>
> Even with broadcast radio, somebody other than the DJ has to track
> what is played, and when it is played. (DJ's are notoriously inept at
> keeping traffic logs.)

I think our system gives us these reports, the playout software logs things. 
Winthin a margin that should be allowable, the info is recorded automatically 
if you set things up that way. 

snip... don't know how I came to make two posts for this one...
>
> xan
>
> jonathon

all the best,

drew
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drew Roberts | 3 Aug 2008 14:38

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 20:29:08 jonathon wrote:
> On Sat, Aug 2, 2008 at 14:42, drew Roberts  wrote:
> > Ah, ok, you are thinking bands and I am thinking broadcast radio.
>
> Even with broadcast radio, somebody other than the DJ has to track
> what is played, and when it is played. (DJ's are notoriously inept at
> keeping traffic logs.)
>
> > So, is say a bar has a live band some night and does as you suggest, who
> > pay the fees? the bar, the band, or both?
>
> The venue always pays the collection societies.

So, only the venue, that's what I thought.
>
> > Does any have figures for real word fee structures?
>
> I don't remember the dollar amounts. :(
> The club I used to hang out at had a US$10.00 cover charge.
> Everything collected at the door was given to the band. Even on an
> excellent night for the band, the collecting society tab was more than
> the band earned.  (Figure on 150+ people in the club, on an excellent
> night.)

But they are unrelated, right? You did indicate that the venue pays.
>
> Here is the way one club owner explained the costs to me.
> Have a "three drink minimum".
> * The first drink goes to the collecting society;
> * The second drink is split between the various licensing authorities,
> and the band;

So the band gets the door and a part of the second drink?

> * The third drink covers the cost to hire employees, and maintain the bar;
> * The fourth drink was when the bar could begin to think that there
> might be a net profit, for the evening.

Anyone know more about how these things work?

What about on nights when no band plays? Are the fees different for live 
versus non-live music? How does that jukebox game I dimly remember work if it 
still does?
>
> ###
>
> http://www.ccli.com/usa/WhatWeOffer/LicenseFees.aspx is a link to the
> copyright license fees for products handled by CCLI.
>
> For the typical congregation in the US, that fee is US$170 for the
> right to do the following:
>     *  Print songs, hymns and lyrics in bulletins, programs, liturgies
> and songsheets for use in congregational singing;
>     * Create your own customized songbooks or hymnals for use in
> congregational singing;
>     * Create overhead transparencies, slides or use any other format
> whereby song lyrics are visually projected (such as computer graphics
> and projection) for use in congregational singing;
>     * Arrange, print and copy your own arrangements (vocal and
> instrumental) of songs used for congregational singing, where no
> published version is available;
>     * Record your worship services (audio or video) provided you only
> record live music. Accompaniment tracks cannot be reproduced. You may
> charge up to $4 each for audiocassette tapes and CDs, and $12 each for
> videotapes and DVDs;
>
> If the congregation wants to broadcast that service live, they have to
> deal with various other agencies, such as _The Harry Fox Agency_,
> which has no qualms about claiming that payments on behalf of Charles
> Wesley (1707-1788) must be made to them.

Don't get me started...
>
> On Sat, Aug 2, 2008 at 15:58, Peter Brink  wrote:
> > but he needs permission from the copyright holder of the "original" work
> > to publish and distribute his adaptation.
>
> Under US law, permission to distribute a derivative audio work is
> automatically granted, once the royalty payments have been made.  The
> copyright owner has no option, but to allow the derivative work.
>
> However, for non-audio media, the copyright owner does have the option
> of refusing to allow the distribution of a derivative work.
> (Arguably, the copyright owner also has the option to refusing to
> allow the creation of a derivative work.)

Actually, if I understood this bit properly, the automatic parts only apply to 
non-dramatic music / audio? You can't take advantage of this for dramatic 
musical works from what I understood.
>
> For both audio and non-audio works, the creator of the original work
> does get a royalty payment.   For audio media, it is a predetermined
> amount.  

Actually, I think even here you can nogotiate better terms than the law 
requires and I always understood that the big boys at least generally do.

> For other types of media, it is negotiated between the 
> copyright owners.
>
> xan
>
> jonathon

all the best,

drew
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jonathon | 4 Aug 2008 20:51
Picon
Gravatar

Re: Copyright enforcement and CC BY-NC licenses

On Sun, Aug 3, 2008 at 05:38, drew Roberts  wrote:

>> The club I used to hang out at had a US$10.00 cover charge.
> But they are unrelated, right? You did indicate that the venue pays.

I was using the amount the band earned, as an indication of how much
the collecting socieites claim.

>> Here is the way one club owner explained the costs to me.
>> Have a "three drink minimum".
>> * The first drink goes to the collecting society;
>> * The second drink is split between the various licensing authorities, and the band;

> So the band gets the door and a part of the second drink?

Advertising that the band is playing at the venue.  All food and
beverages that the band consumes.
I've forgotten the other expenses that get chalked up as "the band".
These are deducted from beverage sales.  The band gets none of the
beverage revenue.  (There is one exception.  If there is no cover
charge, then the performance fee for the band is also charged here.)

> Anyone know more about how these things work?

> What about on nights when no band plays?

Assuming neither a DJ, nor a live band, then those nights have less
revenue. As a percentage of gross revenue, net profit is higher.

>Are the fees different for live versus non-live music?

Different collecting societies.

>How does that jukebox game I dimly remember work if it still does?

It is much easier to "control" collection society payments with a
jukebox, than with either a DJ, or a live band.

For starters, the play list won't be changed, unless you change it.
How frequently the songs are played is something you can't control.
(Most jukeboxes provide information on how frequently a specific
selection is played.)

> Actually, if I understood this bit properly, the automatic parts only apply to non-dramatic music /
audio? You can't take advantage of this for dramatic musical works from what I understood.

If you want to use the songs "Acid Queen", "Pinball Wizard", and
"Tommy can you hear me?", in your work, you pay royalties to one
collection society --- I've forgotten which one --- and go on your
way. They do not have the right to deny you permission.

If you want to perform "Tommy: The Rock Opera", you get to pay
royalties to a different collection society. This one has the right to
deny you permission.

If you want to make a movie version of "Tommy: The Rock Opera", you
talk to a different collection society.  This one also has the right
to deny permission.

If you want to release "Tommy: The Rock Opera" as an audio book, you
talk to yet another collection society.   This one also has the right
to deny permission.

If you want to release "Tommy:The Rock Opera", as a talking book, you
can do so, without obtaining permission from anybody, or paying any
royalties, if the appropriate box on the copyright form is checked.
(There are some restrictions on how it can be distributed.)

>> For audio media, it is a predetermined amount.
> Actually, I think even here you can negotiate better terms than the law requires and I always understood
that the big boys at least generally do.

You need a fairly large catalog, and good lawyers, for that
negotiation to be cost effective.

xan

jonathon
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drew Roberts | 4 Aug 2008 22:33

Re: Copyright enforcement and CC BY-NC licenses

On Monday 04 August 2008 14:51:16 jonathon wrote:
> On Sun, Aug 3, 2008 at 05:38, drew Roberts  wrote:
> >> The club I used to hang out at had a US$10.00 cover charge.
> >
> > But they are unrelated, right? You did indicate that the venue pays.
>
> I was using the amount the band earned, as an indication of how much
> the collecting socieites claim.

Yup, I figured as much, just trying to confirm.
>
> >> Here is the way one club owner explained the costs to me.
> >> Have a "three drink minimum".
> >> * The first drink goes to the collecting society;
> >> * The second drink is split between the various licensing authorities,
> >> and the band;
> >
> > So the band gets the door and a part of the second drink?
>
> Advertising that the band is playing at the venue.  All food and
> beverages that the band consumes.
> I've forgotten the other expenses that get chalked up as "the band".
> These are deducted from beverage sales.  The band gets none of the
> beverage revenue.  (There is one exception.  If there is no cover
> charge, then the performance fee for the band is also charged here.)
>
> > Anyone know more about how these things work?
> >
> > What about on nights when no band plays?
>
> Assuming neither a DJ, nor a live band, then those nights have less
> revenue. As a percentage of gross revenue, net profit is higher.
>
> >Are the fees different for live versus non-live music?
>
> Different collecting societies.

Really? I think down here it is PRS no matter what type of music. What are the 
different societies there by type of music?
>
> >How does that jukebox game I dimly remember work if it still does?
>
> It is much easier to "control" collection society payments with a
> jukebox, than with either a DJ, or a live band.

I thought at one time, in the US, jukebox music enjoyed some sort of royalty 
exemption going way back to early days. That was the game I was referring to.
>
> For starters, the play list won't be changed, unless you change it.
> How frequently the songs are played is something you can't control.
> (Most jukeboxes provide information on how frequently a specific
> selection is played.)
>
> > Actually, if I understood this bit properly, the automatic parts only
> > apply to non-dramatic music / audio? You can't take advantage of this for
> > dramatic musical works from what I understood.
>
> If you want to use the songs "Acid Queen", "Pinball Wizard", and
> "Tommy can you hear me?", in your work, you pay royalties to one
> collection society --- I've forgotten which one --- and go on your
> way. They do not have the right to deny you permission.

Is this only if the songs have already been released outside of the rock 
opera?
>
> If you want to perform "Tommy: The Rock Opera", you get to pay
> royalties to a different collection society. This one has the right to
> deny you permission.
>
> If you want to make a movie version of "Tommy: The Rock Opera", you
> talk to a different collection society.  This one also has the right
> to deny permission.
>
> If you want to release "Tommy: The Rock Opera" as an audio book, you
> talk to yet another collection society.   This one also has the right
> to deny permission.
>
> If you want to release "Tommy:The Rock Opera", as a talking book, you
> can do so, without obtaining permission from anybody, or paying any
> royalties, if the appropriate box on the copyright form is checked.
> (There are some restrictions on how it can be distributed.)

Amazing isn't it?
>
> >> For audio media, it is a predetermined amount.
> >
> > Actually, I think even here you can negotiate better terms than the law
> > requires and I always understood that the big boys at least generally do.
>
> You need a fairly large catalog, and good lawyers, for that
> negotiation to be cost effective.

Just a little benefit for the big boys I guess.

We never did finish up with how a person can collect royalties on a work that 
they use and build upon under someone else's NC license without running afoul 
of the NC license.

I think, if I understand you correctly, you are telling how they can do this 
with a statutory license, effectively sidestepping the whole cc licensing 
scheme completely.

For instance, say I write and perform and release a song and put it under cc 
BY-sa or BY-NC-SA, can't someong coma long and record a cover and make use of 
the statutory license and keep their cover recording ARR and not license it 
under wither cc "SA" license at all?
>
> xan
>
> jonathon

all the best,

drew
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Kevin Phillips (home | 6 Aug 2008 01:48

Re: Copyright enforcement and CC BY-NC licenses


----- Original Message ----- 
From: "drew Roberts" <zotz@...>
To: <cc-community@...>
Sent: Monday, August 04, 2008 9:33 PM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses

> On Monday 04 August 2008 14:51:16 jonathon wrote:
>> On Sun, Aug 3, 2008 at 05:38, drew Roberts  wrote:
>> >> The club I used to hang out at had a US$10.00 cover charge.
>> >
>> > But they are unrelated, right? You did indicate that the venue pays.
>>
>> I was using the amount the band earned, as an indication of how much
>> the collecting socieites claim.
>
> Yup, I figured as much, just trying to confirm.

You guys might be interested in the official rate card :)

http://www.mcps-prs-alliance.co.uk/productionmusic/ratecard/Pages/default.aspx

PRS has been hounding people around and abouts where I work, local 
businesses.
They threaten these local businesses with big fines if they fail to pay PRS 
for playing
the radio to their workers.  Even when two people are sitting in a room, 
where they
are both partners in a business (no employees legally speaking) they still 
need a
license because the public or other businesses may be in ear-shot....no 
kidding.

Interestingly, I kept one of the letters they send out.  On the reverse of 
the letter it's
all about explaining how efficient they were/are at sharing out the money 
they
receive.  The biggest shock to me was that less than 6% of their membership
actually makes a reasonable living from their music ($40K per year).

If you're interested I can type up all the figures into a post.  I can't 
find the same
bunch of figures on their web site.

Kevin

>>
>> >> Here is the way one club owner explained the costs to me.
>> >> Have a "three drink minimum".
>> >> * The first drink goes to the collecting society;
>> >> * The second drink is split between the various licensing authorities,
>> >> and the band;
>> >
>> > So the band gets the door and a part of the second drink?
>>
>> Advertising that the band is playing at the venue.  All food and
>> beverages that the band consumes.
>> I've forgotten the other expenses that get chalked up as "the band".
>> These are deducted from beverage sales.  The band gets none of the
>> beverage revenue.  (There is one exception.  If there is no cover
>> charge, then the performance fee for the band is also charged here.)
>>
>> > Anyone know more about how these things work?
>> >
>> > What about on nights when no band plays?
>>
>> Assuming neither a DJ, nor a live band, then those nights have less
>> revenue. As a percentage of gross revenue, net profit is higher.
>>
>> >Are the fees different for live versus non-live music?
>>
>> Different collecting societies.
>
> Really? I think down here it is PRS no matter what type of music. What are 
> the
> different societies there by type of music?
>>
>> >How does that jukebox game I dimly remember work if it still does?
>>
>> It is much easier to "control" collection society payments with a
>> jukebox, than with either a DJ, or a live band.
>
> I thought at one time, in the US, jukebox music enjoyed some sort of 
> royalty
> exemption going way back to early days. That was the game I was referring 
> to.
>>
>> For starters, the play list won't be changed, unless you change it.
>> How frequently the songs are played is something you can't control.
>> (Most jukeboxes provide information on how frequently a specific
>> selection is played.)
>>
>> > Actually, if I understood this bit properly, the automatic parts only
>> > apply to non-dramatic music / audio? You can't take advantage of this 
>> > for
>> > dramatic musical works from what I understood.
>>
>> If you want to use the songs "Acid Queen", "Pinball Wizard", and
>> "Tommy can you hear me?", in your work, you pay royalties to one
>> collection society --- I've forgotten which one --- and go on your
>> way. They do not have the right to deny you permission.
>
> Is this only if the songs have already been released outside of the rock
> opera?
>>
>> If you want to perform "Tommy: The Rock Opera", you get to pay
>> royalties to a different collection society. This one has the right to
>> deny you permission.
>>
>> If you want to make a movie version of "Tommy: The Rock Opera", you
>> talk to a different collection society.  This one also has the right
>> to deny permission.
>>
>> If you want to release "Tommy: The Rock Opera" as an audio book, you
>> talk to yet another collection society.   This one also has the right
>> to deny permission.
>>
>> If you want to release "Tommy:The Rock Opera", as a talking book, you
>> can do so, without obtaining permission from anybody, or paying any
>> royalties, if the appropriate box on the copyright form is checked.
>> (There are some restrictions on how it can be distributed.)
>
> Amazing isn't it?
>>
>> >> For audio media, it is a predetermined amount.
>> >
>> > Actually, I think even here you can negotiate better terms than the law
>> > requires and I always understood that the big boys at least generally 
>> > do.
>>
>> You need a fairly large catalog, and good lawyers, for that
>> negotiation to be cost effective.
>
> Just a little benefit for the big boys I guess.
>
> We never did finish up with how a person can collect royalties on a work 
> that
> they use and build upon under someone else's NC license without running 
> afoul
> of the NC license.
>
> I think, if I understand you correctly, you are telling how they can do 
> this
> with a statutory license, effectively sidestepping the whole cc licensing
> scheme completely.
>
> For instance, say I write and perform and release a song and put it under 
> cc
> BY-sa or BY-NC-SA, can't someong coma long and record a cover and make use 
> of
> the statutory license and keep their cover recording ARR and not license 
> it
> under wither cc "SA" license at all?
>>
>> xan
>>
>> jonathon
>
> all the best,
>
> drew
>
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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jonathon | 6 Aug 2008 05:37
Picon
Gravatar

Re: Copyright enforcement and CC BY-NC licenses

On Tue, Aug 5, 2008 at 16:48, Kevin Phillips (home) wrote:

> The biggest shock to me was that less than 6% of their membership actually makes a reasonable living from
their music ($40K per year).

I'm surprised the percentage is that high.

xan

jonathon
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Jim Baker | 5 Aug 2008 02:45

Re: Copyright enforcement and CC BY-NC licenses

This is a useful thread; please keep it all together until finished.

On Aug 4, 2008, at 3:33 PM, drew Roberts wrote:

> On Monday 04 August 2008 14:51:16 jonathon wrote:
>> On Sun, Aug 3, 2008 at 05:38, drew Roberts  wrote:
>>>> The club I used to hang out at had a US$10.00 cover charge.
>>>
>>> But they are unrelated, right? You did indicate that the venue pays.
>>
>> I was using the amount the band earned, as an indication of how much
>> the collecting socieites claim.
>
> Yup, I figured as much, just trying to confirm.
>>
>>>> Here is the way one club owner explained the costs to me.
>>>> Have a "three drink minimum".
>>>> * The first drink goes to the collecting society;
>>>> * The second drink is split between the various licensing 
>>>> authorities,
>>>> and the band;
>>>
>>> So the band gets the door and a part of the second drink?
>>
>> Advertising that the band is playing at the venue.  All food and
>> beverages that the band consumes.
>> I've forgotten the other expenses that get chalked up as "the band".
>> These are deducted from beverage sales.  The band gets none of the
>> beverage revenue.  (There is one exception.  If there is no cover
>> charge, then the performance fee for the band is also charged here.)
>>
>>> Anyone know more about how these things work?
>>>
>>> What about on nights when no band plays?
>>
>> Assuming neither a DJ, nor a live band, then those nights have less
>> revenue. As a percentage of gross revenue, net profit is higher.
>>
>>> Are the fees different for live versus non-live music?
>>
>> Different collecting societies.
>
> Really? I think down here it is PRS no matter what type of music. What 
> are the
> different societies there by type of music?
>>
>>> How does that jukebox game I dimly remember work if it still does?
>>
>> It is much easier to "control" collection society payments with a
>> jukebox, than with either a DJ, or a live band.
>
> I thought at one time, in the US, jukebox music enjoyed some sort of 
> royalty
> exemption going way back to early days. That was the game I was 
> referring to.
>>
>> For starters, the play list won't be changed, unless you change it.
>> How frequently the songs are played is something you can't control.
>> (Most jukeboxes provide information on how frequently a specific
>> selection is played.)
>>
>>> Actually, if I understood this bit properly, the automatic parts only
>>> apply to non-dramatic music / audio? You can't take advantage of 
>>> this for
>>> dramatic musical works from what I understood.
>>
>> If you want to use the songs "Acid Queen", "Pinball Wizard", and
>> "Tommy can you hear me?", in your work, you pay royalties to one
>> collection society --- I've forgotten which one --- and go on your
>> way. They do not have the right to deny you permission.
>
> Is this only if the songs have already been released outside of the 
> rock
> opera?
>>
>> If you want to perform "Tommy: The Rock Opera", you get to pay
>> royalties to a different collection society. This one has the right to
>> deny you permission.
>>
>> If you want to make a movie version of "Tommy: The Rock Opera", you
>> talk to a different collection society.  This one also has the right
>> to deny permission.
>>
>> If you want to release "Tommy: The Rock Opera" as an audio book, you
>> talk to yet another collection society.   This one also has the right
>> to deny permission.
>>
>> If you want to release "Tommy:The Rock Opera", as a talking book, you
>> can do so, without obtaining permission from anybody, or paying any
>> royalties, if the appropriate box on the copyright form is checked.
>> (There are some restrictions on how it can be distributed.)
>
> Amazing isn't it?
>>
>>>> For audio media, it is a predetermined amount.
>>>
>>> Actually, I think even here you can negotiate better terms than the 
>>> law
>>> requires and I always understood that the big boys at least 
>>> generally do.
>>
>> You need a fairly large catalog, and good lawyers, for that
>> negotiation to be cost effective.
>
> Just a little benefit for the big boys I guess.
>
> We never did finish up with how a person can collect royalties on a 
> work that
> they use and build upon under someone else's NC license without 
> running afoul
> of the NC license.
>
> I think, if I understand you correctly, you are telling how they can 
> do this
> with a statutory license, effectively sidestepping the whole cc 
> licensing
> scheme completely.
>
> For instance, say I write and perform and release a song and put it 
> under cc
> BY-sa or BY-NC-SA, can't someong coma long and record a cover and make 
> use of
> the statutory license and keep their cover recording ARR and not 
> license it
> under wither cc "SA" license at all?
>>
>> xan
>>
>> jonathon
>
> all the best,
>
> drew
>
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
It takes 20 years of hard work to become an overnight success."
--Diana Rankin,
  writer and public speaker
Permalink | Reply |
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drew Roberts | 2 Aug 2008 23:38

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 17:11:35 jonathon wrote:
> On Sat, Aug 2, 2008 at 10:26, drew Roberts wrote:
> > Jonathon, help me out here in my ignorance. Have you specifically chosen
> > a situation below which avoids the problem in the question posed?
>
> For music, as best as I can tell, there is no way to avoid that problem.

I am not sure we are understanding each other properly yet and I normally dont 
feel this way with your posts. I am not sure where the problem stems from 
this time, but something doesn't "feel" right.
>
> >Does person B need to make use of person A's BY-NC license to do this?
>
> Derivative work.
>
> Under US law, one is automatically allowed to make derivatives,
> provided the appropriate royalties/permissions are obtained.

Yes, but if one relies on the NC license instead of this option in the law?

> In other 
> countries, the situation is more or less the same.  (The major
> difference is whether or not the derivative work affects the moral
> rights of the content creator.)
>
> The NC license grants permission, providing the derivative work is not
> commercially used.

Right and I see at the bottom you indicate that collecting royalties on a 
derivative can be considered non-commercial usage. I would like to hear your 
thinking on this and anyone else's as well.

> [For the purposes of this discussion, "commercial usage" is defined as
> "non-gratis distribution of NC content on any physical media." (I'm
> over-simplifying things here.)]

Sure as a broadcast radio station playing a song on the air is surely 
commercial usage as well per the license. Correct?
>
> > So. Just in case your example allows the early players to do what they do
> > outside of the confines of the upstream NC licensors...
> >
> > Person A writes words and music and records a song. Releases the whole
> > shebang under cc BY-NC-SA. (I added SA to avoid the complication of being
> > able to change the license downstream.
>
> That would  be the release as sheet music.
>
> > Person B records a cover version with changed lyrics and releases as
> > BY-NC-SA as well.
>
> That would be the release as an ogg track.
>
> > Doesn't B using the NC license from A preclude B from using the work
> > commercially?
>
> Yes.  However, one can still record a cover version, and release it,
> without it being "commercial" in nature.  ( Distribution as a "thank
> you gift' for donations to a non-profit, is one example that the CC NC
> Guidelines offer.)

Yes they can, but surely then collecting royalties on the same would put it 
over the top re commecrial usage? If not, why not?
>
> The commercial usage would be releasing the sheet music and OGG track
> on a DVD, that is then sold by CoSMos, Tower Records, and similar
> places.  (OK, both Tower Records, and CoSMoS are out of business. The
> last time I bought a new CD that wasn't at a live performance was
> almost a decade ago.  (That was a CD by 阿妹. I later discovered that
> had I sent her a dollar, she would have received more money, than my
> purchase of the CD earned for her.))
>
> > If so, how can B collect royalties? Isn't collecting royalties considered
> > a commercial use?
>
> Going by the CC licenses, and guidelines, collecting royalties need
> not be commercial usage.

Can you run us through an explanation of how this would work?
>
> xan
>
> jonathon

all the best,

drew

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cc-community mailing list
cc-community <at> lists.ibiblio.org
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Kevin Phillips (home | 2 Aug 2008 09:33

Re: Copyright enforcement and CC BY-NC licenses


----- Original Message ----- 
From: "jonathon" <jonathon.blake@...>
To: <cc-community@...>
Sent: Saturday, August 02, 2008 5:20 AM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses

> On Fri, Aug 1, 2008 at 20:07, drew Roberts  wrote:
>
>
>> They can't be paid royalties as their building on an NC licensed work 
>> precludes them from making commercial use of the work they built on and 
>> so they can't be paid royalties for their work.
>
> That is _not_ what the NC license states.
>
> One of the ironies of the creative Commons licenses, is that the NC
> one is the only way that makes an explicit mention of royalty
> payments, and that they may be collected.

I agree, and this is my favourite nit with the NC license!  It took me ages 
to get my head around this, but maybe it's actually quite simple.  It's 
assumed (I think by the cc license authors) that a professional musician 
will be registered with a collection society.  Therefore their right to 
collect royalties on NC released work is _not_ waivered.  So, the license 
doesn't add or remove any barriers for the collection societies or 
professional musicians it preserves the royalty status quo.

In terms of license clarity, I think this is confusing to the nth degree. 
Keeping in mind that NC is the only license which does not waiver collection 
society royalties, it adds a commercial sting to a _strictly_ non-commercial 
license.  I appreciate the licensee vs licensor aspect, but none the less 
it's still confusing when other commercial friendly licenses do waiver 
royalty fees, including the most clear-cut commercial-friendly BY license.

Why?  Well, I'm assuming "look no waiver" was added to pacify the collection 
societies and their signed up professional musicians who were persuaded in 
the early days of CC to release stuff into the pool for remixing via 
ccMixter et al.  NC protected their work from commercial "leaks", yet still 
offered them a slice of the payment for radio/blog/youtube play etc. (as a 
contributor).

The double-sided sticky irony :

Whenever I release under NC and a small radio station plays my work, they 
have to pay the collection society irrespective of me being registered or 
not.  The collection society then keeps the money (*cough* shares the money 
with their artists).  I cannot opt out of this or waiver the fees, or even 
re-route the collected fees to a charity of my choice without becoming a 
fee-paying signed up member of the society....which is a commercial "merry 
go round" if ever there was one.

A musician wanting a truly "money-free" license, where there's no 
commerciality guaranteed end-to-end (unless negotiated with him/her 
directly) AFIK cannot use any of the CC licenses.  He/she will be guided 
towards NC as the solution by the various automated systems and general 
advice and away from SA licenses which are maybe more suitable for his/her 
purpose.

Sorry if this slightly moved things off topic.

Kev

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Fred Benenson | 2 Aug 2008 18:23
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Re: Copyright enforcement and CC BY-NC licenses



I agree, and this is my favourite nit with the NC license!  It took me ages
to get my head around this, but maybe it's actually quite simple.  It's
assumed (I think by the cc license authors) that a professional musician
will be registered with a collection society.  Therefore their right to
collect royalties on NC released work is _not_ waivered.  So, the license
doesn't add or remove any barriers for the collection societies or
professional musicians it preserves the royalty status quo.

IANAL but I do not believe you are reading the collecting society part of the BY-NC license properly:

http://creativecommons.org/licenses/by-nc/3.0/legalcode
The Licensor reserves the right to collect royalties, whether individually or, in the event that the Licensor is a member of a collecting society that administers voluntary licensing schemes, via that society, from any exercise by You of the rights granted under this License that is for a purpose or use which is otherwise than noncommercial as permitted under Section 4(c).
I don't think this section implies that collecting societies can (or will) collect on your behalf without your permission. The point is to allow them to collect for you in circumstances you would otherwise consider commercial -- you reserve the right to collect.

If you've signed up with a collecting society (say ASCAP) then you've aligned their interests with yours, or vice versa. You've essentially said: please find those circumstances in which I should be remunerated and collect fees, then distribute them to me proportionally (ignoring how the obvious liquidity of the definition of "proportionally" is) to my work's popularity.

And then you go home and release those works under BY-NC.

I don't really see why this is so inconsistent -- to the extent that collecting societies were instantiated to protect artists rights in situations where their work was being exploited commercially (see: plays over radio and public venues), then why complain that they're acting against your wishes?

In other words, if you want to release under NC but you don't want a collecting society making money off of your work, then why bother with a collecting society in the first place?

Don't sign up; because you can't have your cake (royalty payments from a CS) and eat it too (the desire for them not to collect money when you're releasing a work gratis).




Why?  Well, I'm assuming "look no waiver" was added to pacify the collection
societies and their signed up professional musicians who were persuaded in
the early days of CC to release stuff into the pool for remixing via
ccMixter et al.

The "waiver" was added to make CC licenses compatible with collecting societies. It makes it possible to release under CC and still be a member of one. Do you object to this?

 
 NC protected their work from commercial "leaks", yet still
offered them a slice of the payment for radio/blog/youtube play etc. (as a
contributor).

I'm not understanding your objection here.
 


The double-sided sticky irony :

Whenever I release under NC and a small radio station plays my work, they
have to pay the collection society irrespective of me being registered or
not.  The collection society then keeps the money (*cough* shares the money
with their artists).  I cannot opt out of this or waiver the fees, or even
re-route the collected fees to a charity of my choice without becoming a
fee-paying signed up member of the society....which is a commercial "merry
go round" if ever there was one.

A musician wanting a truly "money-free" license, where there's no
commerciality guaranteed end-to-end (unless negotiated with him/her
directly) AFIK cannot use any of the CC licenses.  He/she will be guided
towards NC as the solution by the various automated systems and general
advice and away from SA licenses which are maybe more suitable for his/her
purpose.

If you don't like NC and you don't like collecting societies collecting on your behalf, then there is a very simple option: choose neither.



F


 


Sorry if this slightly moved things off topic.

Kev

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Kevin Phillips (home | 3 Aug 2008 01:15

Re: Copyright enforcement and CC BY-NC licenses


----- Original Message ----- 
From: Fred Benenson
To: cc-community@...
Sent: Saturday, August 02, 2008 5:23 PM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses

>>I agree, and this is my favourite nit with the NC license!  It took me 
>>ages
>>to get my head around this, but maybe it's actually quite simple.  It's
>>assumed (I think by the cc license authors) that a professional musician
>>will be registered with a collection society.  Therefore their right to
>>collect royalties on NC released work is _not_ waivered.  So, the license
>>doesn't add or remove any barriers for the collection societies or
>>professional musicians it preserves the royalty status quo.

>IANAL but I do not believe you are reading the collecting society part of 
>the BY-NC license properly:

>http://creativecommons.org/licenses/by-nc/3.0/legalcode

>The Licensor reserves the right to collect royalties, whether individually 
>or, in the event that the Licensor is a member of a collecting society that 
>administers voluntary >licensing schemes, via that society, from any 
>exercise by You of the rights granted under this License that is for a 
>purpose or use which is otherwise than noncommercial as >permitted under 
>Section 4(c).

>I don't think this section implies that collecting societies can (or will) 
>collect on your behalf without your permission. The point is to allow them 
>to collect for you in >circumstances you would otherwise consider 
>commercial -- you reserve the right to collect.

Indeed, the license is careful to suggest I could collect "individually" or 
if I'm a CS member, then I'd be able to claim from my CS.  This potentially 
puts a lot of work in the lap of a radio station wanting to play my music. 
The license is suggesting that the radio station needs to find out if I'm 
signed up to a society, if not then hold the money, I may be knocking on 
their door at a later date for my 35 cents.

In reality, if the radio station even looks at this license they'll assume 
I'm CS registered, because it's the path of least resistance.  They'll log 
the track in their play logs and submit mine along with all the other 
commercial recordings (as per norm).  So if I don't register with a CS where 
does that money go?  The CS holds onto it for a few years, then it gets 
swallowed up.  Standard practice.

>If you've signed up with a collecting society (say ASCAP) then you've 
>aligned their interests with yours, or vice versa.
> You've essentially said: please find those circumstances in which I should 
> be remunerated and collect fees, then distribute
> them to me proportionally (ignoring how the obvious liquidity of the 
> definition of "proportionally" is) to my work's popularity.
>And then you go home and release those works under BY-NC.
>I don't really see why this is so inconsistent -- to the extent that 
>collecting societies were instantiated to protect artists rights
>in situations where their work was being >exploited commercially (see: 
>plays over radio and public venues),
>then why complain that they're acting against your wishes?

I understand what you're saying, but please keep in mind that many musicians 
using CC licenses are not signed up to a CS, because it costs money to do 
so.  There's an annual fee, which some folks might feel they can't justify 
on the off-chance they might have earned a few cents in royalties.  Such a 
small amount is insignificant you might argue, I'd say it is from the view 
point of the individual, but not to a CS who is blanket-collecting all these 
fees factoring in the potential number of unsigned musicians out there (and 
the number of small stations and podcasters playing them legitimately).

>In other words, if you want to release under NC but you don't want a 
>collecting society making money off of your work, then why bother with a 
>collecting society in the first place? Don't sign up; because you can't 
>have your cake (royalty payments from a CS) and eat it too (the desire for 
>them not to collect money when you're releasing a work gratis).

I don't want the cake.  I want to donate the cake to Creative Commons, 
including all the cake which the CS might be holding on my behalf.  I'm not 
on a diet, nor am I a Communist or a Freegan, just a generous soul.

>>Why?  Well, I'm assuming "look no waiver" was added to pacify the 
>>collection
>>societies and their signed up professional musicians who were persuaded in
>>the early days of CC to release stuff into the pool for remixing via
>>ccMixter et al.

>The "waiver" was added to make CC licenses compatible with collecting 
>societies. It makes it possible to release under CC and still be a member 
>of one. Do you object to this?

No, I don't object to it.  We were talking about irony, and the irony of the 
NC license being setup to support a very commercial set of procedures and 
organisations. None of the other licenses (including arguably the most 
"commercial" BY) have been made "compatible with collecting societies", only 
NC.

>> NC protected their work from commercial "leaks", yet still
>>offered them a slice of the payment for radio/blog/youtube play etc. (as a
>>contributor).

>I'm not understanding your objection here.

Clarity is the grounds of my objection.  I'm not against commercial artists 
releasing works into CC, I think it should happen more.  I'm not against 
them being paid for their work via their CS as they've always been.  I just 
think it's not helpful that the NC licenses has been manipulated aka "made 
compatible" to their ends, which otherwise would be (and is) very strict 
about non-commercial uses.

I think it would have been far clearer to somehow add the CS waiver as a 
component to any of the licenses.  Why isn't there a non-waiver SA license? 
Don't commercial artists want me to make money from remixing their work? 
Maybe some wouldn't mind, given that they'd have their CS fees if I make 
something that's a massive success.

Meantime an amateur musicians could chose BY-NC with the waiver intact, 
because she's not signed up to a CS and she doesn't want commercial uses.

> If you don't like NC and you don't like collecting societies collecting on 
> your behalf, then there is a very simple option: choose neither.

Bingo.  I'd love to use SA all the time, but some web sites don't support it 
so I take what's offered.  A lot of musicians don't get the concept of SA, 
so they choose NC thinking it will stop corporates nicking their music. If I 
want to remix music the majority of stuff is NC.

Again, sorry Drew for taking this OT, I hope you're original questions were 
answered along the way :)

Kevin

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Terry Hancock | 5 Aug 2008 22:14

Re: Copyright enforcement and CC BY-NC licenses

Kevin Phillips (home) wrote:
> No, I don't object to it.  We were talking about irony, and the irony of the 
> NC license being setup to support a very commercial set of procedures and 
> organisations. None of the other licenses (including arguably the most 
> "commercial" BY) have been made "compatible with collecting societies", only 
> NC.

The real problem is that "non-commercial" depends on who you mean.

As used, it means that the recipient of the work can use it only for
"non-commercial" uses.

But the principle reason for having such a limitation is that the work
itself IS "commercial" and that the author of the work wants to "retain
commercial rights" in the work.

IOW, the name of the license is user-rights centric, but the choice of
license is author-rights centric. Thus, from the author's PoV, the name
creates confusion, and that probably means that errors are made in
selecting a license.

Since the "non-commercial license" is really the "license of choice for
commercial authors", this is indeed ironic.

One solution might be to rename the license -- it could be called
"commercial-rights-reserved" (CR), for example.

One thing that certainly ought to be done is to have the license
selection wizard ask its questions differently.

Right now, it asks the author a user-centric question:

"Allow commercial uses of your work?"

This is okay at telling you what the licenses do for the user, but it
doesn't tell you what the effect of the choice is on the *author* (the
one who's reading and answering these questions). In fact, I've answered
questions from some authors who get so confused they think THEY can't
use the work commercially if they choose an NC license.

A better -- more author-centric -- question would be:

"Do you want to retain a monopoly on commercial exploitation of your
work (for example, so that you alone can sell the work or collect fees
from collecting societies on the work)?"

I think that would make the true use-cases for NC (and ND) much more clear.

>> I'm not understanding your objection here.
> 
> Clarity is the grounds of my objection.  I'm not against commercial artists 
> releasing works into CC, I think it should happen more.  I'm not against 
> them being paid for their work via their CS as they've always been.  I just 
> think it's not helpful that the NC licenses has been manipulated aka "made 
> compatible" to their ends, which otherwise would be (and is) very strict 
> about non-commercial uses.

I think the real problem is that NC is *NOT* the right license for
"purely non-commercial uses". If you just want a work to be for
non-commercial use, because you want it to be free and you don't want it
to be "exploited", then you'd be much better off with a By-SA license.

> Meantime an amateur musicians could chose BY-NC with the waiver intact, 
> because she's not signed up to a CS and she doesn't want commercial uses.

Unless by "amateur" you really mean "semi-pro", I don't see why they'd
want to use By-NC in the first place. Bottom line: unless you're trying
to get revenue from selling the work, By-SA is a better option for
keeping the work "free".

> Bingo.  I'd love to use SA all the time, but some web sites don't support it 
> so I take what's offered.  A lot of musicians don't get the concept of SA, 
> so they choose NC thinking it will stop corporates nicking their music. If I 
> want to remix music the majority of stuff is NC.

Both of those are severe social ills, and should (IMHO) be fought.

Boycott those NC-only sites. Use the ones which permit free licensing
instead. We need to support the people who support us.

As for musicians not understanding the licenses they pick for their own
works, shame on them! Get educated.

Cheers,
Terry

--

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Kevin Phillips (home | 6 Aug 2008 01:27

Re: Copyright enforcement and CC BY-NC licenses

Hey Terry,

----- Original Message ----- 
From: "Terry Hancock" <hancock@...>
To: <cc-community@...>
Sent: Tuesday, August 05, 2008 9:14 PM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses

> Kevin Phillips (home) wrote:
>> No, I don't object to it.  We were talking about irony, and the irony of 
>> the
>> NC license being setup to support a very commercial set of procedures and
>> organisations. None of the other licenses (including arguably the most
>> "commercial" BY) have been made "compatible with collecting societies", 
>> only
>> NC.
>
> The real problem is that "non-commercial" depends on who you mean.

I know :)

> As used, it means that the recipient of the work can use it only for
> "non-commercial" uses.
>
> But the principle reason for having such a limitation is that the work
> itself IS "commercial" and that the author of the work wants to "retain
> commercial rights" in the work.
>
> IOW, the name of the license is user-rights centric, but the choice of
> license is author-rights centric. Thus, from the author's PoV, the name
> creates confusion, and that probably means that errors are made in
> selecting a license.
>
> Since the "non-commercial license" is really the "license of choice for
> commercial authors", this is indeed ironic.

Exactly!  I understand the PoV from both angles, largely thanks to you guys
from previous discussions.

> One solution might be to rename the license -- it could be called
> "commercial-rights-reserved" (CR), for example.

Yes, great idea.  I think we've discussed this a little previously and came
up with a bunch of new naming conventions for good measure.  However,
it's not just a question of  "what's in a name".

There's a whole world of NC licensed music out there now, the cats
out of the bag and as Drew mentioned in his response many of the
top tier CC music sites are responsible.

This is part-way understandable, as ccMixter for instance was from the
off a site to encourage the remixing of songs via competitions, seeded
from the commercial world.  The site has since taken many twists and
turns, some of which are encouragingly towards self-seeded
source material.  This is what I'm personally interested in, I don't care
so much for the remix competitions but enjoy nothing more than remixing
other community member submissions and being remixed in return.

The NC license really has no place in the latter context.

> One thing that certainly ought to be done is to have the license
> selection wizard ask its questions differently.

Absolutely.  Again, a great idea and we've discussed this too.  I'm no
fan of the "deed" - it's a little too Fisher Price for my liking.  Sometimes
it's good to simpify things for us common folk, but the deed really is
an over simplification.

At the very least there should be a link to some real-world examples
of what you can and can't do with the work (from both PoVs).

> Right now, it asks the author a user-centric question:
>
> "Allow commercial uses of your work?"
>
> This is okay at telling you what the licenses do for the user, but it
> doesn't tell you what the effect of the choice is on the *author* (the
> one who's reading and answering these questions). In fact, I've answered
> questions from some authors who get so confused they think THEY can't
> use the work commercially if they choose an NC license.

Absolutely.  It's so confusing in fact that some folks who understand it
initially are often persuaded of an alternative meaning, wrongly by others.

I've had a discussion myself with a guy who was convinced the license
would mean he could no longer use his own music on his own web site.

> A better -- more author-centric -- question would be:
>
> "Do you want to retain a monopoly on commercial exploitation of your
> work (for example, so that you alone can sell the work or collect fees
> from collecting societies on the work)?"

I personally enjoy the direct nature of this one :) Though, can't imagine
the liberal thinkers would let you get away with using the "e" word.

I'm sure the legal department could come up with something.

> I think that would make the true use-cases for NC (and ND) much more 
> clear.

Yes, I agree.

>>> I'm not understanding your objection here.
>>
>> Clarity is the grounds of my objection.  I'm not against commercial 
>> artists
>> releasing works into CC, I think it should happen more.  I'm not against
>> them being paid for their work via their CS as they've always been.  I 
>> just
>> think it's not helpful that the NC licenses has been manipulated aka 
>> "made
>> compatible" to their ends, which otherwise would be (and is) very strict
>> about non-commercial uses.
>
> I think the real problem is that NC is *NOT* the right license for
> "purely non-commercial uses". If you just want a work to be for
> non-commercial use, because you want it to be free and you don't want it
> to be "exploited", then you'd be much better off with a By-SA license.

Right, and that's what I was getting at with the ccMixter situation.  Where
a mix has been community seeded, remixed, remixed again and again....why
is the default for that mix NC?  SA is a much more suitable license for that
kind of work.

>> Meantime an amateur musicians could chose BY-NC with the waiver intact,
>> because she's not signed up to a CS and she doesn't want commercial uses.
>
> Unless by "amateur" you really mean "semi-pro", I don't see why they'd
> want to use By-NC in the first place. Bottom line: unless you're trying
> to get revenue from selling the work, By-SA is a better option for
> keeping the work "free".

They wouldn't normally chose it if they were more clued-up or given more 
choice.
To become more clued-up there needs to be a push from the inside,
from CC itself.  Same for choices.  When an amateur who does not have
CS affiliation posts original work on a site like ccMixter they look at the
license choices and there's no SA license to choose, so they pick NC.

My guess is that many of the musicians on ccM don't even know about SA,
let alone understand the difference.  There seriously needs to be some kind
of informational drive, to push out some knowledge into the community.

>> Bingo.  I'd love to use SA all the time, but some web sites don't support 
>> it
>> so I take what's offered.  A lot of musicians don't get the concept of 
>> SA,
>> so they choose NC thinking it will stop corporates nicking their music. 
>> If I
>> want to remix music the majority of stuff is NC.
>
> Both of those are severe social ills, and should (IMHO) be fought.

'fraid so.

> Boycott those NC-only sites. Use the ones which permit free licensing
> instead. We need to support the people who support us.

I could, but then I'd have limited scope for remixers.  Kompoz started 
offering
SA a little while back, so my next couple of projects will be posted there.

That doesn't help my friends on ccM though.  And suggesting they jump
ship to another site, well, I'd sooner walk the plank :D

> As for musicians not understanding the licenses they pick for their own
> works, shame on them! Get educated.

Actually, I think it's more like :
The poster child of CC, ccMixter rejects SA licenses....shame on them.
Musicians fail to get CC's garbled messages.....shame on those garblers.

It seems like the only way to really undestand all the options and licenses,
and the subtlety therein, is to read this mailing list! ....heaven help us 
:)

Kev

> -- 
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> Anansi Spaceworks http://www.AnansiSpaceworks.com
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Terry Hancock | 8 Aug 2008 00:14

Re: Copyright enforcement and CC BY-NC licenses

Kevin Phillips (home) wrote:
>> > One solution might be to rename the license -- it could be called
>> > "commercial-rights-reserved" (CR), for example.
> 
> Yes, great idea.  I think we've discussed this a little previously and came
> up with a bunch of new naming conventions for good measure.  However,
> it's not just a question of  "what's in a name".

BTW, who's "we"? Clearly "we" on this list have discussed such things,
but that rarely seems to have any impact on CC's decisions.

>> "Do you want to retain a monopoly on commercial exploitation of your
>> work (for example, so that you alone can sell the work or collect fees
>> from collecting societies on the work)?"
> 
> I personally enjoy the direct nature of this one :) Though, can't imagine
> the liberal thinkers would let you get away with using the "e" word.

Hmmph. I consider myself a "liberal", but I think the most important
"'e' word" to avoid is "euphemism".

Cheers,
Terry

--

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Kevin Phillips (home | 16 Aug 2008 23:21

BY-SA license in the UK has non-waivered collection society fees?

Headsup to Drew and Jonathan in particular, following the recent discussions 
about NC and the differences between jurisdictions, here's a difference I 
spotted with the unported/USA and UK BY-SA license....

http://creativecommons.org/licenses/by-sa/2.0/uk/legalcode

See 2.5

Am I correct in thinking this is a pretty major difference between the USA 
and UK licenses?  Presumably this is why web sites tend to us the "unported" 
licenses, so as not to introduce incompatibilities?  Does this ultimately 
mean that I'd best stick with unported licenses (being UK based mostly) to 
ensure maximum compatibility for those remixing my work?

Kevin
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jonathon | 19 Aug 2008 00:11
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Re: BY-SA license in the UK has non-waivered collection society fees?

On Sat, Aug 16, 2008 at 14:21, Kevin Phillips wrote:

> http://creativecommons.org/licenses/by-sa/2.0/uk/legalcode
> See 2.5

http://creativecommons.org/licenses/by-sa/2.0/legalcode
Section 3(a)

http://creativecommons.org/licenses/by-sa/2.0/za/legalcode
Section 3(k)

http://creativecommons.org/licenses/by-sa/2.5/za/legalcode
Section 3 (k)

> Am I correct in thinking this is a pretty major difference between the USA and UK licenses?

Yes.
I looked at half a dozen of the ported licenses, and that was the only
one that had that clause.

There is _one_ possibility.  Whoever ported the license forgot to
removed the clauses that apply only to the NC portion.

> Presumably this is why web sites tend to us the "unported" licenses, so as not to introduce incompatibilities?

The "unported' version, in theory, is compatible with all legal
jurisdictions. Worst case scenario is that the local legal system
conflicts with a clause in it, without nullifying the entire license.

> Does this ultimately mean that I'd best stick with unported licenses (being UK based mostly) to ensure
maximum compatibility for those remixing my work?

This is where you need to talk to a lawyer.   If local law conflicts
with something in the unported license, then using it might lead to
enforcement issues, that would not exist in the ported version.

xan

jonathon
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Prodromos Tsiavos | 19 Aug 2008 18:09
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Re: BY-SA license in the UK has non-waiveredcollection society fees?

Dear All,

As Jon has already mentioned this is a known problem that has been a result 
of not correctly applying the NC part of the licences when the porting was 
taking place.

The problem will be fixed in v.3.0 of the CCEW licences that are to be 
released later this year.

Best wishes,
Prodromos

----- Original Message ----- 
From: "jonathon" <jonathon.blake@...>
To: <cc-community@...>
Sent: Tuesday, August 19, 2008 12:11 AM
Subject: Re: [cc-community] BY-SA license in the UK has 
non-waiveredcollection society fees?

> On Sat, Aug 16, 2008 at 14:21, Kevin Phillips wrote:
>
>> http://creativecommons.org/licenses/by-sa/2.0/uk/legalcode
>> See 2.5
>
> http://creativecommons.org/licenses/by-sa/2.0/legalcode
> Section 3(a)
>
> http://creativecommons.org/licenses/by-sa/2.0/za/legalcode
> Section 3(k)
>
> http://creativecommons.org/licenses/by-sa/2.5/za/legalcode
> Section 3 (k)
>
>> Am I correct in thinking this is a pretty major difference between the 
>> USA and UK licenses?
>
> Yes.
> I looked at half a dozen of the ported licenses, and that was the only
> one that had that clause.
>
> There is _one_ possibility.  Whoever ported the license forgot to
> removed the clauses that apply only to the NC portion.
>
>> Presumably this is why web sites tend to us the "unported" licenses, so 
>> as not to introduce incompatibilities?
>
> The "unported' version, in theory, is compatible with all legal
> jurisdictions. Worst case scenario is that the local legal system
> conflicts with a clause in it, without nullifying the entire license.
>
>> Does this ultimately mean that I'd best stick with unported licenses 
>> (being UK based mostly) to ensure maximum compatibility for those 
>> remixing my work?
>
> This is where you need to talk to a lawyer.   If local law conflicts
> with something in the unported license, then using it might lead to
> enforcement issues, that would not exist in the ported version.
>
> xan
>
> jonathon
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community 

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jonathon | 19 Aug 2008 20:26
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Re: BY-SA license in the UK has non-waiveredcollection society fees?

On Tue, Aug 19, 2008 at 09:09, Prodromos Tsiavos  wrote:

> As Jon has already mentioned this is a known problem that has been a result of not correctly applying the NC
part of the licences when the porting was taking place.

Had I not:
* known that the basic CC license was CC-BY-NC-ND;
* read half a dozen other versions of the BY-SA license that were
ported to other locales in other languages;
* read the Scottish port of later licenses;
I would not have considered the possibility that the clause was
accidentally included.

This error raises an interesting issue.
Is the CC-BY-SA 2.0 UK license compatible with the other CC-BY-SA 2.0 licenses?

Given the difference in the clauses, I'd say no.

xan

jonathon
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Terry Hancock | 19 Aug 2008 20:41

Re: BY-SA license in the UK has non-waiveredcollection society fees?

jonathon wrote:
> [...]
> I would not have considered the possibility that the clause was
> accidentally included.

Well, obviously I did consider it (since I mentioned it) based purely on
reading this license, but it seemed pretty unlikely. OTOH, so do typos
on store signage, but it still happens (I could never understand that --
you pay hundreds of dollars for your slogan in meter-high letters, but
you don't spell-check it?!).

I figured it was more likely that somebody was trying to be extremely
clever, and I just wasn't getting it.

Anyway, I can't see that there is any use in recriminations over making
such an error or letting it go uncorrected for so long -- all that can
be done at this point is to fix it in the next version. So, kudos to
those who are doing that, instead.

It does make me wonder though -- if someone used CC By-SA 2.0/UK on
their work (presumably based on the deed), then which license applies:
the actual one we've been reading, or the "intended" license with
section 2.5 struck? IOW: "what they meant" or "what they wrote"?

I suppose that really is lawyer-bait, and we'll probably never know.

OTOH, I am extremely relieved to hear that this clause wasn't supposed
to be there.

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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Kevin Phillips (home | 21 Aug 2008 00:12

Re: BY-SA license in the UK has non-waiveredcollection society fees?


----- Original Message ----- 
From: "Terry Hancock" <hancock@...>
To: <cc-community@...>
Sent: Tuesday, August 19, 2008 7:41 PM
Subject: Re: [cc-community] BY-SA license in the UK has 
non-waiveredcollection society fees?

> jonathon wrote:
>> [...]
>> I would not have considered the possibility that the clause was
>> accidentally included.
>
> Well, obviously I did consider it (since I mentioned it) based purely on
> reading this license, but it seemed pretty unlikely. OTOH, so do typos
> on store signage, but it still happens (I could never understand that --
> you pay hundreds of dollars for your slogan in meter-high letters, but
> you don't spell-check it?!).

Well I still think it's an industry conspiracy, hehe ;)

> I figured it was more likely that somebody was trying to be extremely
> clever, and I just wasn't getting it.
>
> Anyway, I can't see that there is any use in recriminations over making
> such an error or letting it go uncorrected for so long -- all that can
> be done at this point is to fix it in the next version. So, kudos to
> those who are doing that, instead.

I'm not so interested in recriminations either, but.....

> It does make me wonder though -- if someone used CC By-SA 2.0/UK on
> their work (presumably based on the deed), then which license applies:
> the actual one we've been reading, or the "intended" license with
> section 2.5 struck? IOW: "what they meant" or "what they wrote"?

Exactly....and what of the folks who have used the license and have been
remixed by others....and what of the collection society fees which 
presumably
have been paid in accordance with this license?

I'm not interested in whos fault, but I am interested in the fall out.

I'm really glad I looked at that license, I had been considering using it 
for
some new things I'm working on, assuming it would be "better" to use a
license from my current jurisdiction rather than using the unported SA.

How wrong could I be?  ....and how glad am I that I've got 10 mixes
all half finished lol :)

> I suppose that really is lawyer-bait, and we'll probably never know.

Hmm, what are the options for CC though?   They can't presumably pull
the license, they can't change it or make a 2.1 rc1 ;)

Maybe there should be a *notice* applied to the UK 2.0 deed though, warning
of the error and potential issues with incompatibility, no?

> OTOH, I am extremely relieved to hear that this clause wasn't supposed
> to be there.

Me too.  Thanks Terry (and everyone else) for the input on this, 
particularly
Prodromos for clearing it up.

My new stuff should be ready in time for the 3.0 license, lol :)

Kev

> Cheers,
> Terry
>
> -- 
> Terry Hancock (hancock@...)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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Terry Hancock | 19 Aug 2008 18:35

Re: BY-SA license in the UK has non-waiveredcollection society fees?

Prodromos Tsiavos wrote:
> As Jon has already mentioned this is a known problem that has been a result 
> of not correctly applying the NC part of the licences when the porting was 
> taking place.

Oh good, someone who knows. Also we are not crazy -- always good to
know. Thank you!

> The problem will be fixed in v.3.0 of the CCEW licences that are to be 
> released later this year.

Also good news.

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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drew Roberts | 17 Aug 2008 00:48

Re: BY-SA license in the UK has non-waivered collection society fees?

On Saturday 16 August 2008 17:21:41 Kevin Phillips (home) wrote:
> Headsup to Drew and Jonathan in particular, following the recent
> discussions about NC and the differences between jurisdictions, here's a
> difference I spotted with the unported/USA and UK BY-SA license....
>
> http://creativecommons.org/licenses/by-sa/2.0/uk/legalcode
>
> See 2.5
>
> Am I correct in thinking this is a pretty major difference between the USA
> and UK licenses?  Presumably this is why web sites tend to us the
> "unported" licenses, so as not to introduce incompatibilities?  Does this
> ultimately mean that I'd best stick with unported licenses (being UK based
> mostly) to ensure maximum compatibility for those remixing my work?

Wow!

"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."

That seems seriously out of place in a BY-SA license. Fine for NC, but this is 
crazy on first glance from someone sitting where I am.

What is the justification for this anyone? The only reason I can see is if it 
is not possible to waive them in the UK. Is that the case? If so, perhaps it 
would be helpful to point out that they would be waived except that the law 
does not allow it and that they will be waived if the law should change in 
the future?

However, once again, I would ask that we consider only waiving the fees when 
it will actually benefit the user if we do so. I see no reason to ever waive 
the fees to benefit the CS or their members when it will not help us or our 
licensees.

Also, doesn't this throw a serious monkey wrench into the reciprocity of 
BY-SA? One person releases under a port that waives, one under a port that 
doesn't. They each make use of the other's work in their own "port" countries 
and in the other person's country. We now have an inequitable situation don't 
we?

Thoughts?
>
> Kevin

all the best,

drew
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Terry Hancock | 17 Aug 2008 18:41

Re: BY-SA license in the UK has non-waivered collection society fees?

drew Roberts wrote:
> Wow!
> 
> "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."
> 
> That seems seriously out of place in a BY-SA license. Fine for NC, but this is 
> crazy on first glance from someone sitting where I am.

OTOH, "SA" "expressly grants" rights to reuse the work commercially. So
this would basically restrict anything that isn't granted by that part
of the license.

So maybe it isn't as far reaching as it sounds?

> However, once again, I would ask that we consider only waiving the fees when 
> it will actually benefit the user if we do so. I see no reason to ever waive 
> the fees to benefit the CS or their members when it will not help us or our 
> licensees.

I wonder if that is the effect of the above? Since that's apparently an
unnecessary provision in the US, maybe that's one reason it isn't in the
US license (not sure about the unported).

BTW, this is "2.0" -- is that the latest version of the UK license?

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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Kevin Phillips (home | 17 Aug 2008 20:27

Re: BY-SA license in the UK has non-waivered collection society fees?


----- Original Message ----- 
From: "Terry Hancock" <hancock@...>
To: <cc-community@...>
Sent: Sunday, August 17, 2008 5:41 PM
Subject: Re: [cc-community] BY-SA license in the UK has non-waivered 
collection society fees?

> drew Roberts wrote:
>> Wow!
>>
>> "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."
>>
>> That seems seriously out of place in a BY-SA license. Fine for NC, but 
>> this is
>> crazy on first glance from someone sitting where I am.
>
> OTOH, "SA" "expressly grants" rights to reuse the work commercially. So
> this would basically restrict anything that isn't granted by that part
> of the license.
>
> So maybe it isn't as far reaching as it sounds?

As I've mentioned before (in other threads) it kind of makes more sense to 
my simple mind that an SA license is non-waivered, because I see it as a 
"commercially open" license more so than NC.  My understanding of SA is that 
you (the next in the chain) need to share alike otherwise you need a 
different license or agreement from me, the author (and other authors along 
the chain). If remix my music and you do share alike your remix, there's no 
restictions on you making money through ad streams or some other cunning 
route. Right?  Well that seems like a whole lot more enterprise friendly 
than an NC release :)  Yet the US & unported SA license contain the waiver.

I would have thought with this in mind for instance, a popular group might 
want to experiement with SA, knowning that they'll at least be paid via 
their CS if their songs become popular enough to gain internet/radio play. 
It seems to me that NC has too many restrictions for such cunning 
enterprise.

>> However, once again, I would ask that we consider only waiving the fees 
>> when
>> it will actually benefit the user if we do so. I see no reason to ever 
>> waive
>> the fees to benefit the CS or their members when it will not help us or 
>> our
>> licensees.
>
> I wonder if that is the effect of the above? Since that's apparently an
> unnecessary provision in the US, maybe that's one reason it isn't in the
> US license (not sure about the unported).

Here in the UK the CS organisations seem to be very much pulling strings as 
far as the law is concerned.  It took me unawares but really doesn't 
surprise me that the waiver isn't there in the UK license.

> BTW, this is "2.0" -- is that the latest version of the UK license?

I've not seen anything more recent.  This is the one the 
creativecommons.co.uk web site offers.

Intersting eh?

Kevin

> Cheers,
> Terry
>
> -- 
> Terry Hancock (hancock@...)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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drew Roberts | 17 Aug 2008 21:59

Re: BY-SA license in the UK has non-waivered collection society fees?

On Sunday 17 August 2008 14:27:57 Kevin Phillips (home) wrote:
> ----- Original Message -----
> From: "Terry Hancock" <hancock@...>
> To: <cc-community@...>
> Sent: Sunday, August 17, 2008 5:41 PM
> Subject: Re: [cc-community] BY-SA license in the UK has non-waivered
> collection society fees?
>
> > drew Roberts wrote:
> >> Wow!
> >>
> >> "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."
> >>
> >> That seems seriously out of place in a BY-SA license. Fine for NC, but
> >> this is
> >> crazy on first glance from someone sitting where I am.
> >
> > OTOH, "SA" "expressly grants" rights to reuse the work commercially. So
> > this would basically restrict anything that isn't granted by that part
> > of the license.
> >
> > So maybe it isn't as far reaching as it sounds?
>
> As I've mentioned before (in other threads) it kind of makes more sense to
> my simple mind that an SA license is non-waivered,

Nah, this makes it non-Free and to my mind, makes the various SA ports 
non-alike and incompatible. I need serious clarification I think. If this is, 
in fact, the way it seems to my first reading, I have serious problems with 
the UK port and don't like people being able to make derivataves of my works 
that I release under a port that has the waiver under the UK port.

Wasn't there an effort a while back to have SA "OK"ed by debian? Wouldn't this 
throw a major monkey wrench into that effort?

Under the BY-SA license, a person should be able to make any commercial or 
non-commercial use of the work so long as they meet the other terms / 
requirements of the license. Since it is a non-exclusive license, some may 
prefer to simplicity of dealing with a CS that they are already dealing with 
anyway and using a license from the CS instead of the BY-SA license, but that 
is different.

> because I see it as a 
> "commercially open" license more so than NC.  My understanding of SA is
> that you (the next in the chain) need to share alike otherwise you need a
> different license or agreement from me, the author (and other authors along
> the chain). If remix my music and you do share alike your remix, there's no
> restictions on you making money through ad streams or some other cunning
> route. Right?  Well that seems like a whole lot more enterprise friendly
> than an NC release :)  Yet the US & unported SA license contain the waiver.
>
> I would have thought with this in mind for instance, a popular group might
> want to experiement with SA, knowning that they'll at least be paid via
> their CS if their songs become popular enough to gain internet/radio play.

This is not how BY-SA should work and makes the license non-Free while other 
ports of BY-SA are Free. (At least as I see them now.) This is not a good 
situation. (If I am off my rocker in this read, someone please clear things 
up.

> It seems to me that NC has too many restrictions for such cunning
> enterprise.
>
> >> However, once again, I would ask that we consider only waiving the fees
> >> when
> >> it will actually benefit the user if we do so. I see no reason to ever
> >> waive
> >> the fees to benefit the CS or their members when it will not help us or
> >> our
> >> licensees.
> >
> > I wonder if that is the effect of the above? Since that's apparently an
> > unnecessary provision in the US, maybe that's one reason it isn't in the
> > US license (not sure about the unported).
>
> Here in the UK the CS organisations seem to be very much pulling strings as
> far as the law is concerned.  It took me unawares but really doesn't
> surprise me that the waiver isn't there in the UK license.
>
> > BTW, this is "2.0" -- is that the latest version of the UK license?
>
> I've not seen anything more recent.  This is the one the
> creativecommons.co.uk web site offers.
>
> Intersting eh?
>
> Kevin
>
> > Cheers,
> > Terry

all the best,

drew
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Terry Hancock | 18 Aug 2008 08:08

Re: BY-SA license in the UK has non-waivered collection society fees?

drew Roberts wrote:
>>>> That seems seriously out of place in a BY-SA license. Fine for 
>>>> NC, but this is crazy on first glance from someone sitting 
>>>> where I am.

Hmm. I was going to draw your attention again to my earlier remark:

>>> OTOH, "SA" "expressly grants" rights to reuse the work 
>>> commercially. So this would basically restrict anything that 
>>> isn't granted by that part of the license.
>>> 
>>> So maybe it isn't as far reaching as it sounds?

And point out that, if so, this was exactly the sort of thing you've
been pushing for on-list for some time.

However, 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. (?!?)

> Nah, this makes it non-Free and to my mind, makes the various SA 
> ports non-alike and incompatible. I need serious clarification I 
> think. If this is, in fact, the way it seems to my first reading, I 
> have serious problems with the UK port and don't like people being 
> able to make derivataves of my works that I release under a port that
>  has the waiver under the UK port.

IMHO, it definitely disagrees with the sense of the SA, and the other
ports of it, unless I am misreading it.

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.

I was going to say that your work can't be converted into this license
if you used the unported version. However, this is not true for versions
2.0 or 2.5, which both allow you to release derivatives under:

"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"

I never noticed that before. I suppose it was an accidental oversight.

So, anyway, if you want to avoid this possibility, then use a version
3.0 SA license (probably the best recommendation now anyway).

OTOH, as far as I can tell, By-SA 2.0/UK is actually a non-commercial
license, so you could get in trouble if you tried to use the original
(underived) work in a commercial way.

> Wasn't there an effort a while back to have SA "OK"ed by debian? 
> Wouldn't this throw a major monkey wrench into that effort?

It would just mean the By-SA 2.0/UK license would be forbidden.

But Debian doesn't actually acknowledge this whole concept of
jurisdictional licenses -- they consider them to be separate licenses,
as I understand things. So if they say "SA is okay" they are really
talking about a particular version and jurisdiction. It's the 3.0
version license that they'd be concerned with now.

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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drew Roberts | 18 Aug 2008 14:42

Re: BY-SA license in the UK has non-waivered collection society fees?

On Monday 18 August 2008 02:08:05 Terry Hancock wrote:
> drew Roberts wrote:
> >>>> That seems seriously out of place in a BY-SA license. Fine for
> >>>> NC, but this is crazy on first glance from someone sitting
> >>>> where I am.
>
> Hmm. I was going to draw your attention again to my earlier remark:
> >>> OTOH, "SA" "expressly grants" rights to reuse the work
> >>> commercially. So this would basically restrict anything that
> >>> isn't granted by that part of the license.
> >>>
> >>> So maybe it isn't as far reaching as it sounds?
>
> 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.
>
> However, 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. (?!?)

I am not so sure... I will comment more below.
>
> > Nah, this makes it non-Free and to my mind, makes the various SA
> > ports non-alike and incompatible. I need serious clarification I
> > think. If this is, in fact, the way it seems to my first reading, I
> > have serious problems with the UK port and don't like people being
> > able to make derivataves of my works that I release under a port that
> >  has the waiver under the UK port.
>
> IMHO, it definitely disagrees with the sense of the SA, and the other
> ports of it, unless I am misreading it.

We agree here.
>
> 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?)
>
> I was going to say that your work can't be converted into this license
> if you used the unported version. However, this is not true for versions
> 2.0 or 2.5, which both allow you to release derivatives under:
>
> "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? Is your 
reading of this latter version saying that you can't release your derivative 
under the license of another jurisdiction? I really can't see it being that 
if that is indeed your reading as that would prevent using works from 
multiple jurisdictions in the same derivative... Right? 
>
> I never noticed that before. I suppose it was an accidental oversight.
>
> 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.
>
> OTOH, as far as I can tell, By-SA 2.0/UK is actually a non-commercial
> license, so you could get in trouble if you tried to use the original
> (underived) work in a commercial way.

Here is the promised comment from above...

Actually, I think you can use it in any commercial way that would not cause 
performance royalties to come due.

And I just went back to read it again and I see you may indeed be correct and 
I mistaken.

So, can someone from cc legal please clear this up? Is this 2.5 section on the 
uk by-sa in there by mistake?
>
> > Wasn't there an effort a while back to have SA "OK"ed by debian?
> > Wouldn't this throw a major monkey wrench into that effort?
>
> It would just mean the By-SA 2.0/UK license would be forbidden.
>
> But Debian doesn't actually acknowledge this whole concept of
> jurisdictional licenses -- they consider them to be separate licenses,
> as I understand things. So if they say "SA is okay" they are really
> talking about a particular version and jurisdiction. It's the 3.0
> version license that they'd be concerned with now.
>
> Cheers,
> Terry

all the best,

drew
Permalink | Reply |
headers
Terry Hancock | 18 Aug 2008 20:32

Re: BY-SA license in the UK has non-waivered collection society fees?

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).

I thought that perhaps this UK license would have just the effect you
had wanted.

HOWEVER...
>> 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
unambiguously).

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.

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.

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
specific.

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.

>> "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 one).

> Is your reading of this latter version saying that you can't release
>  your derivative under the license of another jurisdiction?

NO.

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.

>> 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?

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
Permalink | Reply |
headers
drew Roberts | 18 Aug 2008 22:49

Re: BY-SA license in the UK has non-waivered collection society fees?

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 
users contracts.)
>
> HOWEVER...
>
> >> 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
> unambiguously).

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 
moderation.
>
> 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
> specific.
>
> 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.

Correct.

> 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
> one).
>
> > Is your reading of this latter version saying that you can't release
> >  your derivative under the license of another jurisdiction?
>
> NO.
>
> 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).

OK.
>
> 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?
>
> Cheers,
> Terry

all the best,

drew
Permalink | Reply |
headers
Kevin Phillips (home | 17 Aug 2008 23:19

Re: BY-SA license in the UK has non-waiveredcollection society fees?


----- Original Message ----- 
From: "drew Roberts" <zotz@...>
To: <cc-community@...>
Sent: Sunday, August 17, 2008 8:59 PM
Subject: Re: [cc-community] BY-SA license in the UK has 
non-waiveredcollection society fees?

> On Sunday 17 August 2008 14:27:57 Kevin Phillips (home) wrote:
>> ----- Original Message -----
>> From: "Terry Hancock" <hancock@...>
>> To: <cc-community@...>
>> Sent: Sunday, August 17, 2008 5:41 PM
>> Subject: Re: [cc-community] BY-SA license in the UK has non-waivered
>> collection society fees?
>>
>> > drew Roberts wrote:
>> >> Wow!
>> >>
>> >> "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."
>> >>
>> >> That seems seriously out of place in a BY-SA license. Fine for NC, but
>> >> this is
>> >> crazy on first glance from someone sitting where I am.
>> >
>> > OTOH, "SA" "expressly grants" rights to reuse the work commercially. So
>> > this would basically restrict anything that isn't granted by that part
>> > of the license.
>> >
>> > So maybe it isn't as far reaching as it sounds?
>>
>> As I've mentioned before (in other threads) it kind of makes more sense 
>> to
>> my simple mind that an SA license is non-waivered,
>
> Nah, this makes it non-Free and to my mind, makes the various SA ports
> non-alike and incompatible. I need serious clarification I think. If this 
> is,
> in fact, the way it seems to my first reading, I have serious problems 
> with
> the UK port and don't like people being able to make derivataves of my 
> works
> that I release under a port that has the waiver under the UK port.

See my last post for the sorry for the non-fusion.  I actually agree with 
you,
the sentence should have read "....SA licence is waivered".

So I second what you said, if indeed we're barking up the right tree.

> Wasn't there an effort a while back to have SA "OK"ed by debian? Wouldn't 
> this
> throw a major monkey wrench into that effort?

Wow.  I guess so.

> Under the BY-SA license, a person should be able to make any commercial or
> non-commercial use of the work so long as they meet the other terms /
> requirements of the license. Since it is a non-exclusive license, some may
> prefer to simplicity of dealing with a CS that they are already dealing 
> with
> anyway and using a license from the CS instead of the BY-SA license, but 
> that
> is different.

I agree.  In the discussion with Terry my mind wondered off into thinking 
about
possible benefits, but with the CS featuring in the SA small print and NC 
small print
the distinction is a lot more grey.

>> because I see it as a
>> "commercially open" license more so than NC.  My understanding of SA is
>> that you (the next in the chain) need to share alike otherwise you need a
>> different license or agreement from me, the author (and other authors 
>> along
>> the chain). If remix my music and you do share alike your remix, there's 
>> no
>> restictions on you making money through ad streams or some other cunning
>> route. Right?  Well that seems like a whole lot more enterprise friendly
>> than an NC release :)  Yet the US & unported SA license contain the 
>> waiver.
>>
>> I would have thought with this in mind for instance, a popular group 
>> might
>> want to experiement with SA, knowning that they'll at least be paid via
>> their CS if their songs become popular enough to gain internet/radio 
>> play.
>
> This is not how BY-SA should work and makes the license non-Free while 
> other
> ports of BY-SA are Free. (At least as I see them now.) This is not a good
> situation. (If I am off my rocker in this read, someone please clear 
> things
> up.

Again, I agree with you by instinct.  However, I thought we might explore
any possible advantage.........urm..........(time passes)  :)

[snip]

Kevin

>
> all the best,
>
> drew
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
Permalink | Reply |
headers
drew Roberts | 18 Aug 2008 03:15

Re: BY-SA license in the UK has non-waiveredcollection society fees?

On Sunday 17 August 2008 17:19:07 Kevin Phillips (home) wrote:
> ----- Original Message -----
> From: "drew Roberts" <zotz@...>
> To: <cc-community@...>
> Sent: Sunday, August 17, 2008 8:59 PM
> Subject: Re: [cc-community] BY-SA license in the UK has
> non-waiveredcollection society fees?

snip

> >>
> >> I would have thought with this in mind for instance, a popular group
> >> might
> >> want to experiement with SA, knowning that they'll at least be paid via
> >> their CS if their songs become popular enough to gain internet/radio
> >> play.
> >
> > This is not how BY-SA should work and makes the license non-Free while
> > other
> > ports of BY-SA are Free. (At least as I see them now.) This is not a good
> > situation. (If I am off my rocker in this read, someone please clear
> > things
> > up.
>
> Again, I agree with you by instinct.  However, I thought we might explore
> any possible advantage.........urm..........(time passes)  :)

This whole interaction of BY-SA with various collection societies and 
jurisdictions, some of which allow for the waiving of performance and other 
rights and some of which don't seems to be a big hairy mess and probably 
should be looked into carefully.

I have been saying in the past that I would like to see BY-SA waive the rights 
only where it would benefit the end of the line user of my work and not where 
they would not benefit but some Cs and their members would benefit while the 
end user would not. Either by way of existing law or (and this is important) 
by way of existing contractual obligations.

This current issue seems to be a variation of that concern. I think that 
licenses for jurisdictions which do not allow for waiving of some rights 
should still waive them but with language that explains that the waiver has 
no effect due to the current legal situation but that they are indeed waived 
should the law at some point in the future allow for them to be waived. (I 
hope I have been clear enough to at least be understood here.)

Does such an idea have any possible benefits? Drawbacks? Is it possible 
everywhere or impossible in some places?
>
> [snip]
>
> Kevin
>
all the best,

drew
Permalink | Reply |
headers
Terry Hancock | 17 Aug 2008 20:49

Re: BY-SA license in the UK has non-waivered collection society fees?

Kevin Phillips (home) wrote:
> As I've mentioned before (in other threads) it kind of makes more sense to 
> my simple mind that an SA license is non-waivered, 

Too many negatives!

So, "non-waivered" mean "does not waive the author's monopoly on to
commercial exploitation"?

So, you approve of the UK By-SA license that you posted if it has the
effect of allowing one to collect collecting society income?

> because I see it as a
> "commercially open" license more so than NC.  My understanding of SA is that 
> you (the next in the chain) need to share alike otherwise you need a 
> different license or agreement from me, the author (and other authors along 
> the chain). If remix my music and you do share alike your remix, there's no 
> restictions on you making money through ad streams or some other cunning 
> route. Right?  Well that seems like a whole lot more enterprise friendly 
> than an NC release :)  Yet the US & unported SA license contain the waiver.

Okay, now I'm confused again. Yes SA certainly allows any recipient to
commercially exploit the work. It wouldn't be a "free" license if it didn't.

Whether that is more "commercially open" or not depends on who you are.
If you are the original rights-holder and you wish to use your monopoly
on either copying or commercial exploitation to make money from the
work, then the SA license is not going to help you do that. OTOH, if you
are a recipient of the work and want to use it to make money (say by
distributing it alongside ads) then it does help.

In the end, I would have to say that both NC and SA licenses can be
"commercially friendly", but to different sorts of businesses.

It's probably just confusing to try to decide on one or the other being
"more commercially friendly". You really need to think in terms of whose
PoV you are taking and what strategy they are going to adopt.

Also I really must insist that we use the word "monopoly" rather than
"rights" -- it's really important to make the distinction: SA gives you
all kinds of "rights", but it doesn't give much "monopoly". OTOH, NC
does give you a "monopoly", but is short on some "rights".

> I would have thought with this in mind for instance, a popular group might 
> want to experiement with SA, knowning that they'll at least be paid via 
> their CS if their songs become popular enough to gain internet/radio play. 
> It seems to me that NC has too many restrictions for such cunning 
> enterprise.

Not really ... if you have to go the collecting society route, then you
are outside of the restrictions of the license anyway. At that point,
you are using the work under a separate (perhaps implicit) license, and
not the CC license at all. So it hardly matters which license you used.

The advantage to By-NC is it clearly forbids the radio play on
commercial stations unless such an extra license is used (which in turn
implies that the collecting society would have to be paid for the extra
license). With By-SA it's not so clear that the station would have to
pay anything (it's quite possible that the airplay can occur under the
By-SA license).

> Here in the UK the CS organisations seem to be very much pulling strings as 
> far as the law is concerned.  It took me unawares but really doesn't 
> surprise me that the waiver isn't there in the UK license.

Not sure what you mean by that. Do you imagine that the CSs had an
impact on the writing of the UK version of the CC license? That seems
just a little improbable to me, as CSs don't seem to approve of By-SA in
general. But I may just be misunderstanding your point here. Also, I
don't live in the UK, so I may have some wrong ideas about the UK politics.

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
Permalink | Reply |
headers
Kevin Phillips (home | 17 Aug 2008 23:09

Re: BY-SA license in the UK has non-waivered collection society fees?


----- Original Message ----- 
From: "Terry Hancock" <hancock@...>
To: <cc-community@...>
Sent: Sunday, August 17, 2008 7:49 PM
Subject: Re: [cc-community] BY-SA license in the UK has non-waivered 
collection society fees?

> Kevin Phillips (home) wrote:
>> As I've mentioned before (in other threads) it kind of makes more sense 
>> to
>> my simple mind that an SA license is non-waivered,
>
> Too many negatives!

I did warn you ;)  My simple mind tripped us both up in this instance, I was 
talking of the US/Unported
SA which is waivered (contains a waiver - see 3f in the license), where NC 
is not (has no waiver).

Sorry, one too many non's.

My mind wasn't in the UK whilst making that point ;)

> So, "non-waivered" mean "does not waive the author's monopoly on to
> commercial exploitation"?

US/Unported SA waiver means the licensor isn't expecting their CS to 
collect.
NC clearly states otherwise, as does the UK SA.

Again, sorry for the "non" too many.

> So, you approve of the UK By-SA license that you posted if it has the
> effect of allowing one to collect collecting society income?

I don't approve or or disapprove, I was merely bringing this out in the 
open, as this whole CS
topic is something of a hot issue.  Particularly when it's suggested the SA 
license (US/Unported)
waiver may be ignored, because of the way the collection societies work.

>> because I see it as a
>> "commercially open" license more so than NC.  My understanding of SA is 
>> that
>> you (the next in the chain) need to share alike otherwise you need a
>> different license or agreement from me, the author (and other authors 
>> along
>> the chain). If remix my music and you do share alike your remix, there's 
>> no
>> restictions on you making money through ad streams or some other cunning
>> route. Right?  Well that seems like a whole lot more enterprise friendly
>> than an NC release :)  Yet the US & unported SA license contain the 
>> waiver.
>
> Okay, now I'm confused again. Yes SA certainly allows any recipient to
> commercially exploit the work. It wouldn't be a "free" license if it 
> didn't.

No, you're not confused, we agree :)

> Whether that is more "commercially open" or not depends on who you are.
> If you are the original rights-holder and you wish to use your monopoly
> on either copying or commercial exploitation to make money from the
> work, then the SA license is not going to help you do that. OTOH, if you
> are a recipient of the work and want to use it to make money (say by
> distributing it alongside ads) then it does help.
>
> In the end, I would have to say that both NC and SA licenses can be
> "commercially friendly", but to different sorts of businesses.
>
> It's probably just confusing to try to decide on one or the other being
> "more commercially friendly". You really need to think in terms of whose
> PoV you are taking and what strategy they are going to adopt.
>

If I own the work out right then I can do what I like.  This is my PoV
sometimes as a licensor when granting others less commercial opportunity
by slapping on an NC license.  That doesn't stop me selling the work,
it's mine.  If I choose instead an SA license then I'm slightly more open to
folks making a living, as long as they share alike.

So IMHO with NC I monopolise things, with SA I'm being a little bit more
commerce friendly.

However, my PoV most of the time is neither of these.  I remix a lot
of stuff from other folks who have already applied a license to the work.
99% of the time that's an NC license.

As is, that's a big restriction on what I can do with my resulting remixes 
by
way of making a living, or beer money (being realistic).  If they'd have
licensed SA I'd have no problem running google ads and keeping my
remixes SA for the podcasters and stations who also run ads.

Therefore, I see SA as being more commercially open, and that's open
as in "to options" not as in "free".

> Also I really must insist that we use the word "monopoly" rather than
> "rights" -- it's really important to make the distinction: SA gives you
> all kinds of "rights", but it doesn't give much "monopoly". OTOH, NC
> does give you a "monopoly", but is short on some "rights".

Well, this is where the problems start when you have differences in
jurisdictions which are as fundemental as CS alignment.

SA becomes much more like the NC license when there's no waiver (in the UK).

>> I would have thought with this in mind for instance, a popular group 
>> might
>> want to experiement with SA, knowning that they'll at least be paid via
>> their CS if their songs become popular enough to gain internet/radio 
>> play.
>> It seems to me that NC has too many restrictions for such cunning
>> enterprise.
>
> Not really ... if you have to go the collecting society route, then you
> are outside of the restrictions of the license anyway. At that point,
> you are using the work under a separate (perhaps implicit) license, and
> not the CC license at all. So it hardly matters which license you used.

Im curious to explore the combination of SA and CS.

More small bands might sign up to a CS if they think they are going to
make back their annual subscription, at the very least.

IF they release their work under SA, then an ad-sponsered station might
play them, or a podcast and do so within the scope of the parameters
their CC license.

It's a lot of maybes.  However if they release NC, the ad-sponsored
station or podcaster can't even look at playing them within the terms
of their NC license, and so would have to re-negotiate another license.

NC+CS seems paradoxical to me.

> The advantage to By-NC is it clearly forbids the radio play on
> commercial stations unless such an extra license is used (which in turn
> implies that the collecting society would have to be paid for the extra
> license). With By-SA it's not so clear that the station would have to
> pay anything (it's quite possible that the airplay can occur under the
> By-SA license).
>
>> Here in the UK the CS organisations seem to be very much pulling strings 
>> as
>> far as the law is concerned.  It took me unawares but really doesn't
>> surprise me that the waiver isn't there in the UK license.
>
> Not sure what you mean by that. Do you imagine that the CSs had an
> impact on the writing of the UK version of the CC license? That seems
> just a little improbable to me, as CSs don't seem to approve of By-SA in
> general. But I may just be misunderstanding your point here. Also, I
> don't live in the UK, so I may have some wrong ideas about the UK 
> politics.

PRS and their ilk are famous for their lobbying power here.  Government
write the laws, the courts uphold those laws for the good of us commoners
apparently.  "Rights" are complex laws here designed to provide a
monopolistic framework, as you state.

I imagine the CSs and the law were both considered, if not consulted.

Kevin

> Cheers,
> Terry
>
> -- 
> Terry Hancock (hancock@...)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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Terry Hancock | 18 Aug 2008 08:08

Re: BY-SA license in the UK has non-waivered collection society fees?

Kevin Phillips (home) wrote:
> "Rights" are complex laws here designed to provide a
> monopolistic framework, as you state.

Yeah, well that's pretty much everywhere, AFAIK. I know that we were
just using the terms that the industry uses, but it's confusing when
talking about public licenses, because while the industry pretty much
_always_ means a "monopoly" when they say "rights", we don't. In fact,
we _usually_ mean "non-exclusive rights".

So if we go around mixing the terminology we can get seriously confused.
It's better to not mince words and just say "monopoly" when that's what
you mean: copyright is founded on the idea that some monopolies are
beneficial. When I say "insist", I really mean that this is the word I
have to use in my head to make sure I understand what we're saying to
each other. :-)

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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Kevin Phillips (home | 9 Aug 2008 22:15

Re: Copyright enforcement and CC BY-NC licenses

Hey Terry,

----- Original Message ----- 
From: "Terry Hancock" <hancock@...>
To: <cc-community@...>
Sent: Thursday, August 07, 2008 11:14 PM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses

> Kevin Phillips (home) wrote:
>>> > One solution might be to rename the license -- it could be called
>>> > "commercial-rights-reserved" (CR), for example.
>>
>> Yes, great idea.  I think we've discussed this a little previously and 
>> came
>> up with a bunch of new naming conventions for good measure.  However,
>> it's not just a question of  "what's in a name".
>
> BTW, who's "we"? Clearly "we" on this list have discussed such things,
> but that rarely seems to have any impact on CC's decisions.

"We" was indeed a reference to the great and the good, aka the subscribers
of this list.  There's a lot of what seems to me to be common sense, in 
terms
of clarification of licensing and developing a collective understanding.

I for one appreciate the help.  I've had infinitely more help from here than 
from
any of the CC documentation or those infernal "deed" documents, for sure ;)

You're right, sometimes it does feel like folks on the list have arrived at 
a
really good conclusion/solution and that just gets lost in the floss.

If the gist of this thread is that we're all frustrated with "it's the wrong
license, Gromit!" then could we not start an awareness campaign ourselves,
to right this wrong?  Are we not the common and the creative?

;)

>>> "Do you want to retain a monopoly on commercial exploitation of your
>>> work (for example, so that you alone can sell the work or collect fees
>>> from collecting societies on the work)?"
>>
>> I personally enjoy the direct nature of this one :) Though, can't imagine
>> the liberal thinkers would let you get away with using the "e" word.
>
> Hmmph. I consider myself a "liberal", but I think the most important
> "'e' word" to avoid is "euphemism".

lol, Terry Hancock, liberal yet uncomfortably direct.... :)

..now, what was it we were talking about?

Kevin

> Cheers,
> Terry
>
> -- 
> Terry Hancock (hancock@...)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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Terry Hancock | 10 Aug 2008 06:22

Re: Copyright enforcement and CC BY-NC licenses

Kevin Phillips (home) wrote:
> If the gist of this thread is that we're all frustrated with "it's the wrong
> license, Gromit!" then could we not start an awareness campaign ourselves,
> to right this wrong?  Are we not the common and the creative?

Yeah sure, but the obvious solution -- changing what the license wizard
says -- is not apparently within our power.

> lol, Terry Hancock, liberal yet uncomfortably direct.... :)

Well, I didn't mean to make anyone uncomfortable... ;-)

Cheers,
Terry

--

-- 
Terry Hancock (hancock@...)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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Robert Atwood (lists | 8 Aug 2008 02:24
Picon

Re: Copyright enforcement and CC BY-NC licenses

Terry Hancock wrote:
> Kevin Phillips (home) wrote:
>>>> One solution might be to rename the license -- it could be called
>>>> "commercial-rights-reserved" (CR), for example.
>> Yes, great idea.  I think we've discussed this a little previously and came
>> up with a bunch of new naming conventions for good measure.  However,
>> it's not just a question of  "what's in a name".
> 
> BTW, who's "we"? Clearly "we" on this list have discussed such things,
> but that rarely seems to have any impact on CC's decisions.
> 
>>> "Do you want to retain a monopoly on commercial exploitation of your
>>> work (for example, so that you alone can sell the work or collect fees
>>> from collecting societies on the work)?"
>> I personally enjoy the direct nature of this one :) Though, can't imagine
>> the liberal thinkers would let you get away with using the "e" word.
> 

I think if we don't like that e-word perhaps we might be inclined not to 
  use that particular license version , which is just fine! Better than 
the other e-word below interfering with clarity and leading to 
misunderstandings.

> Hmmph. I consider myself a "liberal", but I think the most important
> "'e' word" to avoid is "euphemism".
> 
> Cheers,
> Terry
>
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drew Roberts | 6 Aug 2008 02:31

Re: Copyright enforcement and CC BY-NC licenses

On Tuesday 05 August 2008 19:27:05 Kevin Phillips (home) wrote:
> Hey Terry,
>
> ----- Original Message -----
> From: "Terry Hancock" <hancock@...>
> To: <cc-community@...>
> Sent: Tuesday, August 05, 2008 9:14 PM
> Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses
>
> > Kevin Phillips (home) wrote:
> >> No, I don't object to it.  We were talking about irony, and the irony of
> >> the
> >> NC license being setup to support a very commercial set of procedures
> >> and organisations. None of the other licenses (including arguably the
> >> most "commercial" BY) have been made "compatible with collecting
> >> societies", only
> >> NC.
> >
snip
>
> There's a whole world of NC licensed music out there now, the cats
> out of the bag and as Drew mentioned in his response many of the
> top tier CC music sites are responsible.
>
> This is part-way understandable, as ccMixter for instance was from the
> off a site to encourage the remixing of songs via competitions, seeded
> from the commercial world.  The site has since taken many twists and
> turns, some of which are encouragingly towards self-seeded
> source material.  This is what I'm personally interested in, I don't care
> so much for the remix competitions but enjoy nothing more than remixing
> other community member submissions and being remixed in return.
>
> The NC license really has no place in the latter context.

I perhaps wasn't at ccMixter from the very beginning, but I know at a time 
that I think was fairly early, they took a decision that they wanted all 
content on the site to be remixable with all other content on the site.

They could go with BY and BY-NC like they did.

They could go with BY and BY-NC-SA which lately I think I would prefer and I 
can't see any way it would harm the path they have chosen.

They could go with BY and BY-SA which I hope they do some day with a Free 
Mixter site.

You can't have BY, BY-SA and BY-NC all on the same site and meet the goal of 
having all bits remixable with all other bits on the site.
>
snip
>
> Right, and that's what I was getting at with the ccMixter situation.  Where
> a mix has been community seeded, remixed, remixed again and again....why
> is the default for that mix NC?  SA is a much more suitable license for
> that kind of work.

Yup, but then the goal of all bits being mixable with all other bits on the 
site would be out the window.
>
> >> Meantime an amateur musicians could chose BY-NC with the waiver intact,
> >> because she's not signed up to a CS and she doesn't want commercial
> >> uses.
> >
> > Unless by "amateur" you really mean "semi-pro", I don't see why they'd
> > want to use By-NC in the first place. Bottom line: unless you're trying
> > to get revenue from selling the work, By-SA is a better option for
> > keeping the work "free".
>
> They wouldn't normally chose it if they were more clued-up or given more
> choice.
> To become more clued-up there needs to be a push from the inside,
> from CC itself.  

Any hope of this?

> Same for choices.  When an amateur who does not have 
> CS affiliation posts original work on a site like ccMixter they look at the
> license choices and there's no SA license to choose, so they pick NC.

And so have I while putting a BY-SA copy of the work on the internet archive 
and pointing to the alternate license version on the ccMixter site. It is the 
best I could figure out how to do and work on the Mixter in a way I am 
comfortably comfortable.

This leads to an odd paradox... I only look for BY works to work with on the 
site but don't want to release my works as BY. I don't feel great about this 
situation but I will see how things go.
>
> My guess is that many of the musicians on ccM don't even know about SA,
> let alone understand the difference.  There seriously needs to be some kind
> of informational drive, to push out some knowledge into the community.

Hey, I was just told that oog vorbis files were not appreciated and that the 
Mixter was an mp3 community. I pointed to the mp3's that the archive makes 
from the flacs I put up there.
>
> >> Bingo.  I'd love to use SA all the time, but some web sites don't
> >> support it
> >> so I take what's offered.

Yup. I am working on a related list (income ideas for a band using BY-SA):

http://packet-in.org/wiki/index.php?title=Income

Just added a Kompoz link after seeing your reminder below.

> >> A lot of musicians don't get the concept of 
> >> SA,
> >> so they choose NC thinking it will stop corporates nicking their music.
> >> If I
> >> want to remix music the majority of stuff is NC.
> >
> > Both of those are severe social ills, and should (IMHO) be fought.
>
> 'fraid so.
>
> > Boycott those NC-only sites. Use the ones which permit free licensing
> > instead. We need to support the people who support us.
>
> I could, but then I'd have limited scope for remixers.  Kompoz started
> offering
> SA a little while back, so my next couple of projects will be posted there.
>
> That doesn't help my friends on ccM though.  And suggesting they jump
> ship to another site, well, I'd sooner walk the plank :D
>
> > As for musicians not understanding the licenses they pick for their own
> > works, shame on them! Get educated.
>
> Actually, I think it's more like :
> The poster child of CC, ccMixter rejects SA licenses....shame on them.

Well, I would be happy if they just offered a parallel Free Mixter until.

> Musicians fail to get CC's garbled messages.....shame on those garblers.
>
> It seems like the only way to really undestand all the options and
> licenses, and the subtlety therein, is to read this mailing list!
> ....heaven help us

We also need to reach a Free and copyleft critical mass. Lots start using GPL 
software because there is a lot of it and the success of it is evident. We 
are not anywhere there yet with BY-SA music. Plus, there is a legal end run 
around BY-SA licensed music that the big boys can avail themselves of which 
does not exits for GPL software.

I just remembered to add the fix for this to my 'Some thoughts on a "Copyright 
Offensive"' post here:

http://zotzbro.blogspot.com/2007/04/some-thoughts-on-copyright-offensive.html
>
> :)

Kev, if you find you can do something with some of my stuff on the Mixter, 
please do and reviews would also be welcome. Do you have links to your stuff 
there?
>
> Kev
>

all the best,

drew
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Lucas Gonze | 6 Aug 2008 05:06
Picon

Re: Copyright enforcement and CC BY-NC licenses

>> They wouldn't normally chose it if they were more clued-up or given more
>> choice.
>> To become more clued-up there needs to be a push from the inside,
>> from CC itself.
>
> Any hope of this?

My impression is that it's unlikely, though they are currently doing a
study which may lead in new directions.

A push for genuinely open licensing which was led from the outside
would be a fine thing to do.
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drew Roberts | 5 Aug 2008 22:47

Re: Copyright enforcement and CC BY-NC licenses

On Tuesday 05 August 2008 16:14:57 Terry Hancock wrote:
> Kevin Phillips (home) wrote:
> > No, I don't object to it.  We were talking about irony, and the irony of
> > the NC license being setup to support a very commercial set of procedures
> > and organisations. None of the other licenses (including arguably the
> > most "commercial" BY) have been made "compatible with collecting
> > societies", only NC.
>
> The real problem is that "non-commercial" depends on who you mean.
>
> As used, it means that the recipient of the work can use it only for
> "non-commercial" uses.
>
> But the principle reason for having such a limitation is that the work
> itself IS "commercial" and that the author of the work wants to "retain
> commercial rights" in the work.
>
> IOW, the name of the license is user-rights centric, but the choice of
> license is author-rights centric. Thus, from the author's PoV, the name
> creates confusion, and that probably means that errors are made in
> selecting a license.
>
> Since the "non-commercial license" is really the "license of choice for
> commercial authors", this is indeed ironic.
>
> One solution might be to rename the license -- it could be called
> "commercial-rights-reserved" (CR), for example.
>
> One thing that certainly ought to be done is to have the license
> selection wizard ask its questions differently.
>
> Right now, it asks the author a user-centric question:
>
> "Allow commercial uses of your work?"
>
> This is okay at telling you what the licenses do for the user, but it
> doesn't tell you what the effect of the choice is on the *author* (the
> one who's reading and answering these questions). In fact, I've answered
> questions from some authors who get so confused they think THEY can't
> use the work commercially if they choose an NC license.
>
> A better -- more author-centric -- question would be:
>
> "Do you want to retain a monopoly on commercial exploitation of your
> work (for example, so that you alone can sell the work or collect fees
> from collecting societies on the work)?"
>
> I think that would make the true use-cases for NC (and ND) much more clear.
>
> >> I'm not understanding your objection here.
> >
> > Clarity is the grounds of my objection.  I'm not against commercial
> > artists releasing works into CC, I think it should happen more.  I'm not
> > against them being paid for their work via their CS as they've always
> > been.  I just think it's not helpful that the NC licenses has been
> > manipulated aka "made compatible" to their ends, which otherwise would be
> > (and is) very strict about non-commercial uses.
>
> I think the real problem is that NC is *NOT* the right license for
> "purely non-commercial uses". If you just want a work to be for
> non-commercial use, because you want it to be free and you don't want it
> to be "exploited", then you'd be much better off with a By-SA license.
>
> > Meantime an amateur musicians could chose BY-NC with the waiver intact,
> > because she's not signed up to a CS and she doesn't want commercial uses.
>
> Unless by "amateur" you really mean "semi-pro", I don't see why they'd
> want to use By-NC in the first place. Bottom line: unless you're trying
> to get revenue from selling the work, By-SA is a better option for
> keeping the work "free".
>
> > Bingo.  I'd love to use SA all the time, but some web sites don't support
> > it so I take what's offered.  A lot of musicians don't get the concept of
> > SA, so they choose NC thinking it will stop corporates nicking their
> > music. If I want to remix music the majority of stuff is NC.
>
> Both of those are severe social ills, and should (IMHO) be fought.
>
> Boycott those NC-only sites. Use the ones which permit free licensing
> instead. We need to support the people who support us.

But cc itself fails on this one. Go to ccMixter and see. (They have their 
stated reasons for this situation.)

Sure, you can use the Free BY or the non-Free BY-NC, but you are not allowed 
to use the Free BY-SA on that site.

Funny thing is, it was finally releasing some things on ccMixter under a BY-NC 
license which I do not like and would rather not use that got me thinking of 
these issues and led me to ask this question in the first place.

And... (Greg, are you listening) I feel cc Mixter should at least use BY and 
BY-NC-SA instead of BY and BY-NC if they are not going to permit BY-SA. 
Anyone know of any reasons why such a choice might be better for the 
community? (Greg, is this a valid use for BY-NC-SA in your thinking?)

So, I gave in and use BY-NC as I do not wish to use BY but I make a note that 
the same work is available BY-SA on the Internet Archive. Go figure. What a 
kluge.
>
> As for musicians not understanding the licenses they pick for their own
> works, shame on them! Get educated.

True, but honestly, copyright law is way too complicated even if a general 
user cares and so many don't seem to.
>
> Cheers,
> Terry

all the best,

drew
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jonathon | 2 Aug 2008 19:57
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Gravatar

Re: Copyright enforcement and CC BY-NC licenses

On Sat, Aug 2, 2008 at 09:23, Fred Benenson  wrote:

> In other words, if you want to release under NC but you don't want a collecting society making money off of
your work, then why bother with a collecting society in the first place?

In most places outside of the United States, the collecting society
will collect royalties, regardless of the individual's membership
status.   Payments are made according to the membership status.

> The "waiver" was added to make CC licenses compatible with collecting societies. It makes it possible to
release under CC and still be a member of one. Do you object to this?

AFAIK, the only license that has achieved any degree of acceptance
with collecting societies is the CC-BY-NC flavors.  You can probably
count the number of collecting societies that accept that license on
one hand, with fingers left over.  Far more common is the position
that you, as an artist, have no rights at all, in even attempting to
dictate any terms of any kind, without our express authorization, and
consent, when it comes to the collection of royalties. The only
agreement we accept, is the one we drafted.

xan

jonathon
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drew Roberts | 2 Aug 2008 19:12

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 12:23:35 Fred Benenson wrote:
> > I agree, and this is my favourite nit with the NC license!  It took me
> > ages to get my head around this, but maybe it's actually quite simple. 
> > It's assumed (I think by the cc license authors) that a professional
> > musician will be registered with a collection society.  Therefore their
> > right to collect royalties on NC released work is _not_ waivered.  So,
> > the license doesn't add or remove any barriers for the collection
> > societies or professional musicians it preserves the royalty status quo.
>
> IANAL but I do not believe you are reading the collecting society part of
> the BY-NC license properly:
>
> http://creativecommons.org/licenses/by-nc/3.0/legalcode
>
> The Licensor reserves the right to collect royalties, whether individually
> or, in the event that the Licensor is a member of a collecting society that
> administers voluntary licensing schemes, via that society, from any
> exercise by You of the rights granted under this License that is for a
> purpose or use which is otherwise than noncommercial as permitted under
> Section 4(c).
>
> I don't think this section implies that collecting societies can (or will)
> collect on your behalf without your permission. The point is to allow them
> to collect for you in circumstances you would otherwise consider commercial
> -- you reserve the right to collect.

Are you reading the US port? Because while I think ASCAP amd BMI will not 
collect for you if you are not a member, I think that in some places, a 
collecting society collects for you whether you like it or not and you cannot 
get your share unless you sign up as a member and agree to their 
restrictions. I think this is where some of the objections arise.
>
> If you've signed up with a collecting society (say ASCAP) then you've
> aligned their interests with yours, or vice versa. You've essentially said:
> please find those circumstances in which I should be remunerated and
> collect fees, then distribute them to me proportionally (ignoring how the
> obvious liquidity of the definition of "proportionally" is) to my work's
> popularity.
>
> And then you go home and release those works under BY-NC.

Also, for instance, from what I understand about how PRS works here, a radio 
station for instance, pays a percentage of total revenue in order to have 
rights to the music. Enev if that station were to play 25% BY and BY-SA 
music, for which no royalties should be due, the contract works in such a way 
that there would be no reduction in fees and so no monetary benefit to the 
station for playing the BY and BY-SA works over BY-NC or even ARR works. This 
is not an equitable situation in my mind.
>
> I don't really see why this is so inconsistent -- to the extent that
> collecting societies were instantiated to protect artists rights in
> situations where their work was being exploited commercially (see: plays
> over radio and public venues), then why complain that they're acting
> against your wishes?

They act against your wishes, for instance, in places where they can by law 
collect for all music, members and non-members alike, but only pay out to 
members. I have always understood that there are places like this. Am I 
wrong?
>
> In other words, if you want to release under NC but you don't want a
> collecting society making money off of your work, then why bother with a
> collecting society in the first place?
>
> Don't sign up; because you can't have your cake (royalty payments from a
> CS) and eat it too (the desire for them not to collect money when you're
> releasing a work gratis).
>
> > Why?  Well, I'm assuming "look no waiver" was added to pacify the
> > collection
> > societies and their signed up professional musicians who were persuaded
> > in the early days of CC to release stuff into the pool for remixing via
> > ccMixter et al.

Is the no waiver even in the NC licenses? It is in BY-SA.
>
> The "waiver" was added to make CC licenses compatible with collecting
> societies. It makes it possible to release under CC and still be a member
> of one. Do you object to this?
>
> >  NC protected their work from commercial "leaks", yet still
> > offered them a slice of the payment for radio/blog/youtube play etc. (as
> > a contributor).
>
> I'm not understanding your objection here.
>
> > The double-sided sticky irony :
> >
> > Whenever I release under NC and a small radio station plays my work, they
> > have to pay the collection society irrespective of me being registered or
> > not.  The collection society then keeps the money (*cough* shares the
> > money with their artists).  I cannot opt out of this or waiver the fees,
> > or even re-route the collected fees to a charity of my choice without
> > becoming a fee-paying signed up member of the society....which is a
> > commercial "merry go round" if ever there was one.
> >
> > A musician wanting a truly "money-free" license, where there's no
> > commerciality guaranteed end-to-end (unless negotiated with him/her
> > directly) AFIK cannot use any of the CC licenses.  He/she will be guided
> > towards NC as the solution by the various automated systems and general
> > advice and away from SA licenses which are maybe more suitable for
> > his/her purpose.
>
> If you don't like NC and you don't like collecting societies collecting on
> your behalf, then there is a very simple option: choose neither.

Ahain, as I understand, some people do not have this option where they live.
>
>
>
> F
>
> > Sorry if this slightly moved things off topic.
> >
> > Kev
> >
> > > xan
> > >
> > > jonathon

all the best,

drew
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Fred Benenson | 2 Aug 2008 19:27
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Re: Copyright enforcement and CC BY-NC licenses




Are you reading the US port?

Yes, I am.
 
Because while I think ASCAP amd BMI will not
collect for you if you are not a member, I think that in some places, a
collecting society collects for you whether you like it or not and you cannot
get your share unless you sign up as a member and agree to their
restrictions. I think this is where some of the objections arise.

This was not clear to me.
 

>
> If you've signed up with a collecting society (say ASCAP) then you've
> aligned their interests with yours, or vice versa. You've essentially said:
> please find those circumstances in which I should be remunerated and
> collect fees, then distribute them to me proportionally (ignoring how the
> obvious liquidity of the definition of "proportionally" is) to my work's
> popularity.
>
> And then you go home and release those works under BY-NC.

Also, for instance, from what I understand about how PRS works here, a radio
station for instance, pays a percentage of total revenue in order to have
rights to the music. Enev if that station were to play 25% BY and BY-SA
music, for which no royalties should be due, the contract works in such a way
that there would be no reduction in fees and so no monetary benefit to the
station for playing the BY and BY-SA works over BY-NC or even ARR works. This
is not an equitable situation in my mind.

I appreciate your observation here but I'm at a loss at how it can be remedied -- would ASCAP have to pro-rate subscriptions based on percentages of non-collectable works played?
 

>
> I don't really see why this is so inconsistent -- to the extent that
> collecting societies were instantiated to protect artists rights in
> situations where their work was being exploited commercially (see: plays
> over radio and public venues), then why complain that they're acting
> against your wishes?

They act against your wishes, for instance, in places where they can by law
collect for all music, members and non-members alike, but only pay out to
members. I have always understood that there are places like this. Am I
wrong?

Again, I was assuming US jurisdiciton and you were not.



 

>
> In other words, if you want to release under NC but you don't want a
> collecting society making money off of your work, then why bother with a
> collecting society in the first place?
>
> Don't sign up; because you can't have your cake (royalty payments from a
> CS) and eat it too (the desire for them not to collect money when you're
> releasing a work gratis).
>
> > Why?  Well, I'm assuming "look no waiver" was added to pacify the
> > collection
> > societies and their signed up professional musicians who were persuaded
> > in the early days of CC to release stuff into the pool for remixing via
> > ccMixter et al.

Is the no waiver even in the NC licenses? It is in BY-SA.
>
> The "waiver" was added to make CC licenses compatible with collecting
> societies. It makes it possible to release under CC and still be a member
> of one. Do you object to this?
>
> >  NC protected their work from commercial "leaks", yet still
> > offered them a slice of the payment for radio/blog/youtube play etc. (as
> > a contributor).
>
> I'm not understanding your objection here.
>
> > The double-sided sticky irony :
> >
> > Whenever I release under NC and a small radio station plays my work, they
> > have to pay the collection society irrespective of me being registered or
> > not.  The collection society then keeps the money (*cough* shares the
> > money with their artists).  I cannot opt out of this or waiver the fees,
> > or even re-route the collected fees to a charity of my choice without
> > becoming a fee-paying signed up member of the society....which is a
> > commercial "merry go round" if ever there was one.
> >
> > A musician wanting a truly "money-free" license, where there's no
> > commerciality guaranteed end-to-end (unless negotiated with him/her
> > directly) AFIK cannot use any of the CC licenses.  He/she will be guided
> > towards NC as the solution by the various automated systems and general
> > advice and away from SA licenses which are maybe more suitable for
> > his/her purpose.
>
> If you don't like NC and you don't like collecting societies collecting on
> your behalf, then there is a very simple option: choose neither.

Ahain, as I understand, some people do not have this option where they live.
>
>
>
> F
>
> > Sorry if this slightly moved things off topic.
> >
> > Kev
> >
> > > xan
> > >
> > > jonathon

all the best,

drew

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drew Roberts | 2 Aug 2008 19:48

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 13:27:15 Fred Benenson wrote:
> > Are you reading the US port?
>
> Yes, I am.

Cool. Hencs some of the confusion I think.
>
> > Because while I think ASCAP amd BMI will not
> > collect for you if you are not a member, I think that in some places, a
> > collecting society collects for you whether you like it or not and you
> > cannot
> > get your share unless you sign up as a member and agree to their
> > restrictions. I think this is where some of the objections arise.
>
> This was not clear to me.

I am still waiting to hear from others to be sure I got things right, but I 
think we may be making progress.
>
> > > If you've signed up with a collecting society (say ASCAP) then you've
> > > aligned their interests with yours, or vice versa. You've essentially
> >
> > said:
> > > please find those circumstances in which I should be remunerated and
> > > collect fees, then distribute them to me proportionally (ignoring how
> > > the obvious liquidity of the definition of "proportionally" is) to my
> > > work's popularity.
> > >
> > > And then you go home and release those works under BY-NC.
> >
> > Also, for instance, from what I understand about how PRS works here, a
> > radio
> > station for instance, pays a percentage of total revenue in order to have
> > rights to the music. Enev if that station were to play 25% BY and BY-SA
> > music, for which no royalties should be due, the contract works in such a
> > way
> > that there would be no reduction in fees and so no monetary benefit to
> > the station for playing the BY and BY-SA works over BY-NC or even ARR
> > works. This
> > is not an equitable situation in my mind.
>
> I appreciate your observation here but I'm at a loss at how it can be
> remedied -- would ASCAP have to pro-rate subscriptions based on percentages
> of non-collectable works played?

Something like that.

The way it probably should work is for a CS to set a yearly percentage rate 
based on revenue and assuming all music played is theirs.

Then in cases where there are multiple CSes, you would give each their fees 
reduced to match the actual percentage of their music played and not assuming 
the 100%. (Is that wording clear?) Then if you played music for which you 
would not have to pay a CS to use, you would actually save some money. This 
could be considered a marketing adantage for those using such licenses...
>
> > > I don't really see why this is so inconsistent -- to the extent that
> > > collecting societies were instantiated to protect artists rights in
> > > situations where their work was being exploited commercially (see:
> > > plays over radio and public venues), then why complain that they're
> > > acting against your wishes?
> >
> > They act against your wishes, for instance, in places where they can by
> > law collect for all music, members and non-members alike, but only pay
> > out to members. I have always understood that there are places like this.
> > Am I wrong?
>
> Again, I was assuming US jurisdiciton and you were not.
>
> > > In other words, if you want to release under NC but you don't want a
> > > collecting society making money off of your work, then why bother with
> > > a collecting society in the first place?
> > >
> > > Don't sign up; because you can't have your cake (royalty payments from
> > > a CS) and eat it too (the desire for them not to collect money when
> > > you're releasing a work gratis).
> > >
> > > > Why?  Well, I'm assuming "look no waiver" was added to pacify the
> > > > collection
> > > > societies and their signed up professional musicians who were
> > > > persuaded in the early days of CC to release stuff into the pool for
> > > > remixing via ccMixter et al.
> >
> > Is the no waiver even in the NC licenses? It is in BY-SA.
> >
> > > The "waiver" was added to make CC licenses compatible with collecting
> > > societies. It makes it possible to release under CC and still be a
> > > member of one. Do you object to this?
> > >
> > > >  NC protected their work from commercial "leaks", yet still
> > > > offered them a slice of the payment for radio/blog/youtube play etc.
> >
> > (as
> >
> > > > a contributor).
> > >
> > > I'm not understanding your objection here.
> > >
> > > > The double-sided sticky irony :
> > > >
> > > > Whenever I release under NC and a small radio station plays my work,
> >
> > they
> >
> > > > have to pay the collection society irrespective of me being
> > > > registered
> >
> > or
> >
> > > > not.  The collection society then keeps the money (*cough* shares the
> > > > money with their artists).  I cannot opt out of this or waiver the
> >
> > fees,
> >
> > > > or even re-route the collected fees to a charity of my choice without
> > > > becoming a fee-paying signed up member of the society....which is a
> > > > commercial "merry go round" if ever there was one.
> > > >
> > > > A musician wanting a truly "money-free" license, where there's no
> > > > commerciality guaranteed end-to-end (unless negotiated with him/her
> > > > directly) AFIK cannot use any of the CC licenses.  He/she will be
> >
> > guided
> >
> > > > towards NC as the solution by the various automated systems and
> > > > general advice and away from SA licenses which are maybe more
> > > > suitable for his/her purpose.
> > >
> > > If you don't like NC and you don't like collecting societies collecting
> >
> > on
> >
> > > your behalf, then there is a very simple option: choose neither.
> >
> > Ahain, as I understand, some people do not have this option where they
> > live.
> >
> > > F
> > >
> > > > Sorry if this slightly moved things off topic.
> > > >
> > > > Kev
> > > >
> > > > > xan
> > > > >
> > > > > jonathon
> >
> > all the best,
> >
> > drew

all the best,

drew
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jonathon | 2 Aug 2008 20:12
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Re: Copyright enforcement and CC BY-NC licenses

On Sat, Aug 2, 2008 at 10:48, drew Roberts  wrote:

> Then in cases where there are multiple CSes, you would give each their fees reduced to match the actual
percentage of their music played and not assuming the 100%. (Is that wording clear?) Then if you played
music for which you would not have to pay a CS to use, you would actually save some money. This could be
considered a marketing advantage for those using such licenses...

Under that scenario, the odds are that the expenses related to paying
the CSes proportionally will be more than a simple blanket payment to
each of them.

xan

jonathon
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drew Roberts | 2 Aug 2008 20:44

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 14:12:02 jonathon wrote:
> On Sat, Aug 2, 2008 at 10:48, drew Roberts  wrote:
> > Then in cases where there are multiple CSes, you would give each their
> > fees reduced to match the actual percentage of their music played and not
> > assuming the 100%. (Is that wording clear?) Then if you played music for
> > which you would not have to pay a CS to use, you would actually save some
> > money. This could be considered a marketing advantage for those using
> > such licenses...
>
> Under that scenario, the odds are that the expenses related to paying
> the CSes proportionally will be more than a simple blanket payment to
> each of them.

Hmmm, are the payments really that inexpensive? Or, if not, why do you imagine 
the bookeeping expenses would be so great. It would be a simple report pulled 
from your playout database if done right surely...

Does anyone have any real world examples thay can share?

If the blanket payments are really so low, why all the non-complience issues 
in so many countries and so many situations?
>
> xan
>
> jonathon

all the best,

drew
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jonathon | 2 Aug 2008 22:28
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Re: Copyright enforcement and CC BY-NC licenses

On Sat, Aug 2, 2008 at 11:44, drew Roberts  wrote:

>Or, if not, why do you imagine the bookeeping expenses would be so great.

For "proportional payments" the base payments are higher than for a
"blanket payment".  Whilst the theory is that 'proportional payments"
will result in a lower payment to the collection society, the cost of
administration usually exceeds the amount that it allegedly saves.

> It would be a simple report pulled from your playout database if done right surely...

That assumes a degree of organization that live bands usually lack.
It also assumes an atypical degree of willingness to share sources by DJs.

You pretty much have to pay somebody to notate each song, with
starting time, and duration of the piece.

> If the blanket payments are really so low, why all the non-compliance issues in so many countries and so
many situations?

"Low" is a relative term.

The collection societies typically assume that the organization
providing the music is generating revenue through the sale of
cigarettes, alcohol, and similar items, pricing their accordingly.

It is much easier for a venue that charges a US$25 cover charge, and
sells US$25K of alcohol in one night, to pay the collection society
fees, than for a bookstore that has "folk music night", that is
gratis, and only sells books, of a coffee bar that offers gratis live
music, and does not sell alcohol.

xan

jonathon
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drew Roberts | 2 Aug 2008 23:42

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 16:28:12 jonathon wrote:
> On Sat, Aug 2, 2008 at 11:44, drew Roberts  wrote:
> >Or, if not, why do you imagine the bookeeping expenses would be so great.
>
> For "proportional payments" the base payments are higher than for a
> "blanket payment".  Whilst the theory is that 'proportional payments"
> will result in a lower payment to the collection society, the cost of
> administration usually exceeds the amount that it allegedly saves.
>
> > It would be a simple report pulled from your playout database if done
> > right surely...
>
> That assumes a degree of organization that live bands usually lack.
> It also assumes an atypical degree of willingness to share sources by DJs.

Ah, ok, you are thinking bands and I am thinking broadcast radio.
>
> You pretty much have to pay somebody to notate each song, with
> starting time, and duration of the piece.
>
> > If the blanket payments are really so low, why all the non-compliance
> > issues in so many countries and so many situations?
>
> "Low" is a relative term.
>
> The collection societies typically assume that the organization
> providing the music is generating revenue through the sale of
> cigarettes, alcohol, and similar items, pricing their accordingly.

So, is say a bar has a live band some night and does as you suggest, who pay 
the fees? the bar, the band, or both?
>
> It is much easier for a venue that charges a US$25 cover charge, and
> sells US$25K of alcohol in one night, to pay the collection society
> fees, than for a bookstore that has "folk music night", that is
> gratis, and only sells books, of a coffee bar that offers gratis live
> music, and does not sell alcohol.

Does any have figures for real word fee structures?
>
> xan
>
> jonathon

all the best,

drew
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Kevin Phillips (home | 3 Aug 2008 01:26

Re: Copyright enforcement and CC BY-NC licenses


----- Original Message ----- 
From: "drew Roberts" <zotz@...>
To: <cc-community@...>
Sent: Saturday, August 02, 2008 10:42 PM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses

> On Saturday 02 August 2008 16:28:12 jonathon wrote:
>> On Sat, Aug 2, 2008 at 11:44, drew Roberts  wrote:
>> >Or, if not, why do you imagine the bookeeping expenses would be so 
>> >great.
>>
>> For "proportional payments" the base payments are higher than for a
>> "blanket payment".  Whilst the theory is that 'proportional payments"
>> will result in a lower payment to the collection society, the cost of
>> administration usually exceeds the amount that it allegedly saves.
>>
>> > It would be a simple report pulled from your playout database if done
>> > right surely...
>>
>> That assumes a degree of organization that live bands usually lack.
>> It also assumes an atypical degree of willingness to share sources by 
>> DJs.
>
> Ah, ok, you are thinking bands and I am thinking broadcast radio.

AFIK it's the responsibility of the venue to submit their playback returns 
to the PS/CS.

>>
>> You pretty much have to pay somebody to notate each song, with
>> starting time, and duration of the piece.
>>
>> > If the blanket payments are really so low, why all the non-compliance
>> > issues in so many countries and so many situations?
>>
>> "Low" is a relative term.
>>
>> The collection societies typically assume that the organization
>> providing the music is generating revenue through the sale of
>> cigarettes, alcohol, and similar items, pricing their accordingly.
>
> So, is say a bar has a live band some night and does as you suggest, who 
> pay
> the fees? the bar, the band, or both?

The venue.

>> It is much easier for a venue that charges a US$25 cover charge, and
>> sells US$25K of alcohol in one night, to pay the collection society
>> fees, than for a bookstore that has "folk music night", that is
>> gratis, and only sells books, of a coffee bar that offers gratis live
>> music, and does not sell alcohol.
>
> Does any have figures for real word fee structures?

Not me, but as an interesting related aside (just call me Mr OT) there's
a lot more information on the soundexchange website than there used to be.

Interestingly, they have a database of unregistered artists who are owed
royalties.  They are also quite specific about how royalties are assigned
and shared out.

Kev

>>
>> xan
>>
>> jonathon
>
> all the best,
>
> drew
>
>
> _______________________________________________
> cc-community mailing list
> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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drew Roberts | 2 Aug 2008 14:44

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 03:33:54 Kevin Phillips (home) wrote:
> ----- Original Message -----
> From: "jonathon" <jonathon.blake@...>
> To: <cc-community@...>
> Sent: Saturday, August 02, 2008 5:20 AM
> Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses
>
> > On Fri, Aug 1, 2008 at 20:07, drew Roberts  wrote:
> >> They can't be paid royalties as their building on an NC licensed work
> >> precludes them from making commercial use of the work they built on and
> >> so they can't be paid royalties for their work.
> >
> > That is _not_ what the NC license states.
> >
> > One of the ironies of the creative Commons licenses, is that the NC
> > one is the only way that makes an explicit mention of royalty
> > payments, and that they may be collected.
>
> I agree, and this is my favourite nit with the NC license!  It took me ages
> to get my head around this, but maybe it's actually quite simple.  It's
> assumed (I think by the cc license authors) that a professional musician
> will be registered with a collection society.  Therefore their right to
> collect royalties on NC released work is _not_ waivered.  So, the license
> doesn't add or remove any barriers for the collection societies or
> professional musicians it preserves the royalty status quo.
>
> In terms of license clarity, I think this is confusing to the nth degree.
> Keeping in mind that NC is the only license which does not waiver
> collection society royalties, it adds a commercial sting to a _strictly_
> non-commercial license.  I appreciate the licensee vs licensor aspect, but
> none the less it's still confusing when other commercial friendly licenses
> do waiver royalty fees, including the most clear-cut commercial-friendly BY
> license.
>
> Why?  Well, I'm assuming "look no waiver" was added to pacify the
> collection societies and their signed up professional musicians who were
> persuaded in the early days of CC to release stuff into the pool for
> remixing via ccMixter et al.  NC protected their work from commercial
> "leaks", yet still offered them a slice of the payment for
> radio/blog/youtube play etc. (as a contributor).
>
> The double-sided sticky irony :
>
> Whenever I release under NC and a small radio station plays my work, they
> have to pay the collection society irrespective of me being registered or
> not.

The key here is why do they have to pay?

In some places, the law says so.

In other places, their contracts "say so."

Perhaps in some places, they don't have to pay.

Now let's take a BY-SA licensed song where they should not have to pay.

They may still have to pay. Why?

In some places, the law says so.  And the license. See for instance, 3.e.i of 
the 3.0 unported license:

http://creativecommons.org/licenses/by-sa/3.0/legalcode

In some places, they don't have to pay, but it doesn't save them any money 
anyway due to their existing agreements with the CS.

In these situations, the license waives the right to collect but it doesn't 
help the licensor in any financial sense and I wish the license would change 
and not waive the right. 

I have suggested in the past changes to the license wording to correct this 
problem.

Waive the right in 3.e.ii only where it would financially benefit the ultimate 
licensee. If they have a deal with the CS where they can save fees to the CS 
if the license fees are waived, waive them, if their deal with the CS will 
result in them paying the same amount to the CS even if the BY-SA licensor 
waives the fees, then don't waive them.

For 3.e.iii situations, probably always waive the fees. (Or is there a reason 
to treat this situation like 3.e.ii situations? I don't think so, except 
perhaps if the BY-SA licensor is a member of the collection and the deal with 
that society that the licensee has would not result in any savings to him if 
the fees were waived. Is this the case anywhere at the moment?)

> The collection society then keeps the money (*cough* shares the money 
> with their artists).  I cannot opt out of this or waiver the fees, or even
> re-route the collected fees to a charity of my choice without becoming a
> fee-paying signed up member of the society....which is a commercial "merry
> go round" if ever there was one.

None of what I have suggested above will help with this problem except perhaps 
to give us a lever to change how the collection societies work... ??? (I am 
thinking BY-SA artists here and not BY-NC.)

A way needs to be sought to collect "our share" from the collection societies 
without having to join them and submit to their rules on how we can and 
cannot license our works. (We may have to pay their fees for their services 
even without joining mind you.)
>
> A musician wanting a truly "money-free" license, where there's no
> commerciality guaranteed end-to-end (unless negotiated with him/her
> directly) AFIK cannot use any of the CC licenses.

>From my understanding, with music, this is not possible in any way in the U.S. 
A person wanting to make money on another's work can do a cover under a 
compulsory license and not negotiate with the song writers at all.

> He/she will be guided 
> towards NC as the solution by the various automated systems and general
> advice and away from SA licenses which are maybe more suitable for his/her
> purpose.
>
>
> Sorry if this slightly moved things off topic.

It has strayed a bit hasn't it.
>
> Kev
>
> > xan
> >
> > jonathon

all the best,

drew
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Peter Brink | 1 Aug 2008 23:55
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Re: Copyright enforcement and CC BY-NC licenses

Kevin Phillips (home) skrev:
> 
> Person A creates a piece of music and releases it BY-NC
> Person B creates a remix of Person A's BY-NC music (and attributes 
> accordingly)
> Person C sells copies of Person B's remix breaking the NC terms of the 
> license and attributes neither Person A or B.
> 
[snip]
> 
> My additional questions:
> 2) Does the violation also carry through to the originator, Person A?  Can 
> she also sue Person C?
> 
> 3) What role does copyright law play in this situation?
>     ie. Is this simply a case of violating the CC license, and so that's the 
> focus of the case.  Or
>         does a person's rightful copyright in some way trump the CC license 
> once a violation takes place?
> 

A can sue C for copyright violation. C's right to use A's work (which is 
embedded in B's remix) is based on his compliance with the terms of the 
license. If he violates the license then he has no right to copy or 
distribute B's work for any purpose what so ever and hence he is 
infringing on both A and B's copyrights.

/Peter Brink
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drew Roberts | 2 Aug 2008 00:14

Re: Copyright enforcement and CC BY-NC licenses

On Friday 01 August 2008 17:55:43 Peter Brink wrote:
> Kevin Phillips (home) skrev:
> > Person A creates a piece of music and releases it BY-NC
> > Person B creates a remix of Person A's BY-NC music (and attributes
> > accordingly)
> > Person C sells copies of Person B's remix breaking the NC terms of the
> > license and attributes neither Person A or B.
>
> [snip]
>
> > My additional questions:
> > 2) Does the violation also carry through to the originator, Person A? 
> > Can she also sue Person C?
> >
> > 3) What role does copyright law play in this situation?
> >     ie. Is this simply a case of violating the CC license, and so that's
> > the focus of the case.  Or
> >         does a person's rightful copyright in some way trump the CC
> > license once a violation takes place?
>
> A can sue C for copyright violation. C's right to use A's work (which is
> embedded in B's remix) is based on his compliance with the terms of the
> license. If he violates the license then he has no right to copy or
> distribute B's work for any purpose what so ever and hence he is
> infringing on both A and B's copyrights.

Right so we need another player to get all permutations.

A does an original song and release awork BY-NC. A does not register his 
copyright in awrok.

B builds on A's work and releases his bwork BY-NC. B does not register his 
copyright in bwrok.

C builds on B's work and releases his cwork BY-NC. C does register his 
copyright in cwrok.

D builds on C's work and violates the NC clause (or the BY clause?) of the 
license.

C sues D for the violation and collects statutory damages due to having 
registered his copyright in cwork.

B can sue D but cannot prove any monetary damages as he only had an NC 
license. He cannot collect statutory damages as he did not register his 
copyright in bwork.

A can sue D but has to prove monetary damages in order to collect as he did 
not register his copyright in awork.

Is this about right for the U.S.? Does registering make a difference in other 
countries?
>
> /Peter Brink

all the best,

drew
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Peter Brink | 2 Aug 2008 11:26
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Re: Copyright enforcement and CC BY-NC licenses

drew Roberts skrev:
> 
> Is this about right for the U.S.? Does registering make a difference in other 
> countries?

Registering a copyright is a U.S. only feature. Here in Sweden A would 
be able to collect damages corresponding to a reasonable remuneration 
for the exploitation D has carried out, plus possibly additional damage 
for other losses of A, including mental suffering (i.e. D also violated 
A:s moral rights) and other injuries.

/Peter Brink
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drew Roberts | 2 Aug 2008 14:51

Re: Copyright enforcement and CC BY-NC licenses

On Saturday 02 August 2008 05:26:53 Peter Brink wrote:
> drew Roberts skrev:
> > Is this about right for the U.S.? Does registering make a difference in
> > other countries?
>
> Registering a copyright is a U.S. only feature. Here in Sweden A would
> be able to collect damages corresponding to a reasonable remuneration
> for the exploitation D has carried out, plus possibly additional damage
> for other losses of A, including mental suffering (i.e. D also violated
> A:s moral rights) and other injuries.

Good to know. Thanks.
>
> /Peter Brink

all the best,

drew
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jonathon | 1 Aug 2008 23:11
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Re: Copyright enforcement and CC BY-NC licenses

On Fri, Aug 1, 2008 at 13:56, drew Roberts  wrote:

> Someone violates the copyright on your work. You sue. You are entitled to statutory damages right? You
collect. Are you now guilty of violating the NC licenses of the works yours built upon?

I would not think so.

However:
*  Various patent troll companies have constructed a business model
based upon suing people, and generating their revenue that way;
*  SCO is leading the charge in filing lawsuits based upon
non-existent copyright violations, as a business model;

Furthermore, I would suggest that the court case would enable the
upstream content creators to file their own lawsuit against the
copyright/license violator. The only legal issue is how much of that
upstream content is required, for them to have a "successful" outcome.

xan

jonathon
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drew Roberts | 1 Aug 2008 23:55

Re: Copyright enforcement and CC BY-NC licenses

On Friday 01 August 2008 17:11:23 jonathon wrote:
> On Fri, Aug 1, 2008 at 13:56, drew Roberts  wrote:
> > Someone violates the copyright on your work. You sue. You are entitled to
> > statutory damages right? You collect. Are you now guilty of violating the
> > NC licenses of the works yours built upon?
>
> I would not think so.
>
> However:
> *  Various patent troll companies have constructed a business model
> based upon suing people, and generating their revenue that way;
> *  SCO is leading the charge in filing lawsuits based upon
> non-existent copyright violations, as a business model;

Right, so when does it become a busines model?
>
> Furthermore, I would suggest that the court case would enable the
> upstream content creators to file their own lawsuit against the
> copyright/license violator. 

Sure, but see below.

> The only legal issue is how much of that 
> upstream content is required, for them to have a "successful" outcome.

Also, if they did not register their copyrights, they would have to prove 
damages while the person who did register theirs would not have to prove 
damages right?
>
> xan
>
> jonathon

all the best,

drew
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Kevin Phillips (home | 1 Aug 2008 23:50

Re: Copyright enforcement and CC BY-NC licenses


----- Original Message ----- 
From: "jonathon" <jonathon.blake@...>
To: <cc-community@...>
Sent: Friday, August 01, 2008 10:11 PM
Subject: Re: [cc-community] Copyright enforcement and CC BY-NC licenses

> On Fri, Aug 1, 2008 at 13:56, drew Roberts  wrote:
>
>> Someone violates the copyright on your work. You sue. You are entitled to 
>> statutory damages right? You collect. Are you now guilty of violating the 
>> NC licenses of the works yours built upon?
>
> I would not think so.
>
> However:
> *  Various patent troll companies have constructed a business model
> based upon suing people, and generating their revenue that way;
> *  SCO is leading the charge in filing lawsuits based upon
> non-existent copyright violations, as a business model;
>
> Furthermore, I would suggest that the court case would enable the
> upstream content creators to file their own lawsuit against the
> copyright/license violator. The only legal issue is how much of that
> upstream content is required, for them to have a "successful" outcome.

I hope this is so.  If copyright cases are anything to go by, the famous NWA 
case comes to mind (where the judge ruled against them for sampling a three 
note guitar riff, even though the context was as far removed as one can 
imagine - http://www.wired.com/entertainment/music/news/2004/09/64884).

As each instance of the remixing process is essentially sampling the 
previous one, it would be fair to assume all instances of the licenses along 
the way are valid and can therefore be used in a case against a violator 
en-mass, right?

Kevin

> xan
>
> jonathon
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> cc-community@...
> http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>
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Gmane