CCi Legal Day Meeting Notes 2007

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CCi Legal Day Meeting Notes

July 14, 2007


Welcome


Catharina Maracke / Heather Ford

Paul Keller substantial changes since last year (iSummit 2006, this conversation was more informal, called Policy Track”)

  • DRM
  • generic (unported)
  • implementing feedback into 3.0 (since Feb/Mar)
  • Moral Rights? issue addressed since Harvard, Rio and by now should be considered solved
  • Collecting Societies, also being addressed, work not as conclusive as moral rights progress

Introduction of Version 3.0

Further internationalization & Harmonization

Catharina

Goal: to have “truly generic” and “truly US” license Q: What national law should this unported be based on? A: International Copyright Treaties such as Berne Convention, WIPO Copyright Treaty and others laws

  • To produce high quality national jurisdiction licenses besides this unported license we must not only translate the license literally, but legally adapt it to the respective jurisdiction, e.g. we need to make sure the licenses’ definitions respect the respective copyright law
  • The process can start at iTeamspace:
    • guidelines
    • working document
    • matrix on collecting society language
  • harmonization of moral rights and collecting society language


Localizing Version 3.0

Lucie Guibault

Literal translation had to hire a professional translator for Dutch version

Legal issues raised by 3.0

1) Definitions:

  • new definitions: (relating to “exclusive rights”) “author” and “work” much broader than previous: author covers authors, performing artists, phonogram producers, and broadcasters / work covers performance, phonogram, and broadcast
  • open issues / how do we go about this: neighboring rights also cover film (European situation) and database right (Dutch)
  • database directive mandatory in European countries
  • databases can be protected as “database work” as well as “sui generis” right according to database directive
  • if CC includes all neighboring rights, it seems logical to include database

2) Moral Rights (attribution and protection from mutilation) not specifically addressed because they were already included in Dutch 2.5 license

3) Collective Rights Management

  • US different than most of rest of world
  • CC license must include some parts of CRM
  • 3 possibilities:
    • non-waivable compulsive license schemes (in Holland it’s called a levy), most common scheme
    • waivable compulsory license schemes (aka waivable levy)
    • voluntary license scheme

4) Creative Commons Compatible License

  • included in Deeds
  • language for compatible license (only on BY-SA / share-alike clause)

5) Creative Commons Notice: excludes any sponsoring, also trademark restriction of “CC” 6) Conclusion: most discussions in the Netherlands were related to definitions and CRM (collecting society language)

The versioning procedure

Paul Keller

(database rights has delayed the Dutch 3.0 launch)

1) get in touch with Catharina (Creative Commons International)

2) read documents on the iTeamspace

  • including an extensive article from Mia(substantial legal changes and the reasons why)
  • also documents mentioned by Catharina: Guidelines (goes through licenses point-by-point), Collecting Society matrix (why/how CS work), Working Document (PDF) (based on unported as “template”)

3) check your current licenses

  • 2.0 to 3.0 steps are not explicitly covered in guidelines

4) read the checklist

  • should set up a workflow

5) determine CRM situation

a) in versioning up, you’ll have to identify the situation in your jurisdiction and implement a different and adapted language (e.g. “my jurisdiction does this-and-that”)

b) 3 licenses that allow commercial use

  1. Sec 3 e/f/ (i): “licensor reserves the exclusive right to collect such royalties for all uses
  2. Sec 3 e/f (ii): “licensor waives the exclusive right to collect such royalties for all uses
  3. Sec 3 e/f/ (iii): “licensor waives the right to collect royalties of all uses”
    • can’t be member of most collecting society AND have CC license—solution: clarified situation
    • people want consistency  led to 3.0 so that ALL licenses deal with CS

c) 3 licenses that don’t allow commercial use

  1. Sec 4 c/d (i): “licensor reserves the exclusive right to collect such royalties for all uses”(same as Sec 3 e/f I)
  2. Sec 4 c/d (ii): “licensor reserves the exclusive right to collect royalties for comm. uses”; “licensor waives the exclusive right to collect royalties for non-commercial uses” (requires lots of research to port)
  3. Sec 4 c/d (iii): “licensor reserves the exclusive right to collect for commercial use”

6) translate the changes and retranslate the changes into English

7) send the re-translated license to Catharina

8) wait for feedback

9) implement the changes into the html code (Mike)

10) check, check, and check again! 

Version 3.0--Technical

Mike Linksvayer:

1) Technical changes with 3.0

2) Deed redesign: almost all changes go across all versions

  • better jurisdiction identification (including flag in corner)
  • icons for freedoms associated with rights
  • no more language negotiation (deed only)

3) legalcode errata.js (javascript file) makes notes about typos after licenses uploaded into browser

  • reflect machine-readable attribution and more permissions
  • included metadata about deed

4) RDFa (a = attributes)

  • annotating human-readable html, because people aren’t changing metadata when editing html

5) working on a new translation engine

Questions / Comments regarding Version 3.0

Please note that Mia Garlick has written an informative FAQ about databases and CC. (Thanks, John!)

Q: Andres Guadamuz databases – important to notice database rights exist, especially education data, but concerned with incompatibility

A: Catharina from EU, they have database directive so it must be addressed. ScienceCommons view; other issues with data too (Suggestion: a working group including official legal opinion from EU and SC ?)

A: Lucie database has always been in Dutch license and never raised a problem (also Belgium, French, German, Slovenia).

  • ironic that it’s now a problem with 3.0
  • database right granted for the makers of a database that has demonstrated quantitative/qualitative investment, granted only to European makers.
  • only exists in European territory
  • database right arises as soon as the database is completed (no formalities necessary)

if you don’t include database right in the license, the maker/investor (owner of the database right) may stop the use of CC license because of database right

  • database right won’t be recognized beyond EU—won’t raise issues outside of EU because it’s not applicable
  • including the database right is logical because all other neighboring rights are included

C: Larry general issue in context of database

  • what are we trying to do as we internationalize?
  • US: allergic reaction to database rights, because of originality constraints, ideological difference, moral rights are objected
  • how does CC address issues when there are fundamentally conflicting issues?
  • international policy position?

C: Paul committee to ask for expert opinions OUTSIDE of community

Q: John Weitzmann CC Germany definition section in unported license should the definitions section in the umported license be redefined when porting? If there are contradictions with legal defintions within German law?

A: Catharina definitions should reflect jurisdiction law / Copyright Act

A: Paul unported license = multi-jurisdictional, so many definitions may not apply to local jurisdictions

Q: Yuko CC Japan What happened with the deeds? Our site is just showing the straight US translation, with rights Japan doesn’t have. What happened to the localized version of older license?A: Mike: we still have specialized translations stored, it might be html bug

Q: Melanie CC France feedback from real life users/creators who have implemented or plan to implement new and also current 2.0 database provisions? Should write something in the license to clarify what is CC-licensed (elements, structure, database)? Or in the FAQ?

A: Lucie no practical example

Q: Beinicito CC Philippines new license under 3.0. Particularities with Philippines copyright law. People are currently using the generic license andmost users won’t read the terms. Is it possible for users to select jurisdiction license until then?

A: Catharina should be addressed in the later session - why do we have national licenses, even though many people use the generic? What exactly do we want to do with the national license?

Q CC Bulgaria Option for how the Licensor will be attributed and a link to them. Does it require a technically competent person to link the work?

A: Mike It will be user-friendly to attribute/link Licensor into deed also encouraging licensing repositories

Q: Follow-up question clarification of licensed “work” when accessing a webpage. What elements on the page are being licensed?

A: Mike we don’t know how the users will be using the license, so they’re working on having more software integration. We can’t expect people to take html and tweak it

Q: John Weitzmann CC Germany Deed icons had ambiguities?

A: Larry FSF also had this criticism for the icons;they couldn’t distinguish from CC icons. It is addressed with new licenses

Statistics and Global Growth of CC

Stats from Mike

Mike Linksvayer

Presentation Slides: PDF, Scribd, Slideshare

1) General

  • how he conducted measurements of CC use
    • launched in 2002, searched web for “Creative Commons”;
    • 2003 searched for linkbacks;
    • 2004 daily collection of link counts from All the Web and Yahoo (Google is poor);
    • 2005 Yahoo Search for CC, then Google in the fall; collect daily data from Yahoo
  • search engine metrics: good; fairly easy, web scale (hard to overstate) / bad: they’re estimates; they’re volatile (i.e. changes to algorithm), fraction of web (ex: searching flickr from Google/Yahoo);
  • limited by search engine query support
  • some graphs off because Google keeps changing search algorithms
  • included baseline numbers from top content curators: flickr, revver, jamendo,
  • exponential growth? = conjecture—linear growth and also new content curators, swivel, slideshare, jamglue

2) Next Challenges

  • characterizing licenses
  • measure reuse
  • secondary impact

3) Mike’s mistakes should have invited outside analysis

4) How to help?

  • notify CC of new curators
  • help get data from them
  • evangelize CC

Early Findings from the CC-Monitor Project

Giorgos Cheliotis (Singapore Management University)

Presentation Slides: PDF, Scribd, Slideshare

1) Motivations for our study

  • how many authors use Cc? who are they? which licenses to they prefer? how popular is CC after all? how do CC users value different rights? which factors influence this valuation?
  • estimates of CC license popularity: some observations: NC-BY barely used, total of millions of CC items, NC more popular, SA and ND also popular attributes, media type may play a role in licensing

2) data collection process

  • linkbacks on search engines—easy to approx CC items by linking to deeds, also can use metadata put in the page
  • depending on who you ask, the results vary (yahoo vs google)
  • total volume and license mix: to compare results across engines and across jurisdictions YBL—37.1 m; Google 1.2m; Yahoo CC search 14.4 m; flickr—36.3 m
  • volume generic vs jurisdictions: 80%generic, 20% jurisdiction specific (generic historically the only license)
  • volume per jurisdiction: yahoo and google are close
  • Spanish license dominates, then France, Germany, (S Korea), Italy, Japan, UK
  • volume per 1000 inhabitants: Spain, France, even Croatia
  • looking for relationships: seems like there is no relationship with freedoms, etc
    • Rather, the online communities CC users are active in is the most important determinant of the way they license their content

3) study will be published---probably online, and also continuously updated

Question / Comments regarding Statistics

C: Chunyan Wang, CC China clarification on confusion about China: Yahoo/Google don’t support metadata for China. Many users don’t use the metadata. China is working with Batu (China’s search engine). Hopefully will provide more accurate usage data on China . China Mainland mainly uses “generic” – problem: China has two websites, maybe if they were consolidated you could get better data. Maybe data specific for media type?

Q: Alek Tarkowski Poland won’t get good results for generic unless flickr, etc offers that option. also use percentage measurement (ie on flickr out of 100m works, 10m w/ CC  10% usage). This is probably because flickr offers the CC option easily. Is it possible to measure if these works are being used?

Q: CC Argentina How can we collaborate formally in this research?

A: Giorgos Anyone interested in manipulating the data, contact Giorgos, also for data collection One key conclusion: the adoption of CC by specific communities = the best growth

Q: Shishir Jha CC India also time adjusted data collection. When was the license launched? How intense/quick is the implementation?

A: if anyone has list of launch dates, send to Giorgos - done

Q: Bodo CC Hungary Language-specific measures. English? Other languages? Also, the scientific world? How many scientific publications? Integration of academic world?

C: CC Croatia Explanation for Croatia high rank: most popular blog host has default CC license. most people don’t bother to turn it off.

Q: Mathias Klang, CC Sweden What may cause these results among jurisdictions? Economic impact? Influences? A: Giorgos There is no strong correlation with external influences and the use of CC licenses.

Future Versioning

strategies and issues towards future versioning, databases, compatibility, enforcement

Strategies

Larry Lessig

Goal: insight into objectives/direction of CC, wants feedback from community

1) Objectives

a) as simple as possible

b) simplify license choices

  • based on poor usage, 5 attribution-less licenses were retired 2004
  • developing nations license (retired 2007)
    • view people used, except Architects for Humanity;
    • secondly OpenAccess publishing movement – CC didn’t want to hinder openaceess
  • the sampling license (retired 2007)

c) reflect reality: especially NC—can/should NC works be used in conjunction with advertising?

  • either result will cut off half of users
  • strategy of “switches”
    • offer two options: prohibit commercial use;
    • or offer the choice for each work: “ok on ad-supported sites vs “not ok for ad-supported sites”, and then choice would be machine readable

2) Getting Local

  • people shouldn’t use “generic”/unported license. Unported isn’t really a license…they should stay away from them!
  • strategies?
  • technologies: where are you from? Technology to guide user to appropriate license
  • it’s a jurisdictional question, so it’s hard to automatically suggest appropriate license

3) Enable Crossover

  • commercial and sharing economy
  • facilitate crossover
  • link to deed: permission beyond.
  • create bridge between commercial and share
  • CC will not be involved directly with commercial licensing, but we should enable it
  • build friends: GNU: list of approved licenses---CC 2.5 CC-BY, and BY-SA

4) Future?

  • crossover is key
  • offering even simpler licensing
  • biggest hurdle with companies is that licensing is too complicated / simpler choices must be offered.

5) Cornucopia of the Commons (Dan Bricklin) essay

  • why do the commons succeed?
  • what made Napster a success: people doing what they wanted to do helped the commons.
  • CC: move beyond activism, instead: think of more ways to engage and allow people to do what they want to do, and as a byproduct, it helps the commons. by you helping yourself, you help the commons.

Creative Commons License Enforcement

Andres Guadamuz

1) why enforcement?

  • its going to become more and more of an issue
  • public sector info survey: 1st question asked by bureaucrats: are these licenses enforceable?
  • we’re faced with a choice in terms of enforcement (our opponent: the black knight)
  • Pontevedra ruling (Spain) because of peculiarities of Spanish Copyright Law there. - - judge: “mere informative leaflet about its own content lacking any form of signature bereft of legality”
  • Bars have been trying to get around collecting society by claiming that they’re playing free music (copyleft music, sometimes CC licensed music)
  • also flickr case (David Wise, Canada: Dave didn’t like use of his photo and removed all CC licenses because he wants to figure out his rights)
  • who are actually using our license? How’s it going down the chain of distribution?
  • user, distributor, licensed derivative
  • may make enforcement difficult

2) Enforceability Issues

  • jurisdiction (license is a contract in many countries)
  • interoperability
  • definitions (especially NC)
  • license vs contract ?
  • consideration, contract formation, formalities, notarization, © enforcement

3) Contract Formation

  • to offer acceptance in Civil law systems may require formalities
    • ex: Ecuador: © grant contract has to be “written”
  • acceptance can be written, spoken, or made by acts that imply it
  • most countries now consider some form of e-contract formation
  • color iuris: requires notarization of licenses
  • Ponetvedra ruling and FUD spread fear, uncertainty and doubt
  • contract formation (click wrap, meaning pop up “I agree”)
  • browse-wrap—problems: the only jurisdiction that accepts it is the US. Most licenses are browse wrap (links imbed to license)

4) What should we do about enforcement?

  • should CC be involved?
  • avoid litigation at all costs, but can’t offer legal advice
  • Online Dispute Resolution


Ronaldo Lemos

  • writing provision in L. America countries—applies only when assigning your ©. When writing your © license you don’t need it in writing
  • crossover of commercial and sharing worlds: Open Business Project (in L Amer) to understand different ways of sharing, business models on top of practices of sharing
  • Brazil minister Gilberto Gil has now released rights to record his concerts and anyone can record them

Lawrence Liang

  • future versioning challenges in developing countries reasons for it: more than the mere launch.
  • how do we push beyond the launch? Move away from de facto CC and go instead to de juris CC attitude. Should really USE the CC license.
  • intermediaries are important players. Development sector and education sector. - - technical and legal problems = you aren’t dealing with individuals but institutions, ie content created by students, etc
  • problem in India: fear of losing themselves by going CC, especially institutions. They wanted customized license. possibilities of catering to institutions?
  • legal support: what do we do about this?
  • challenge of regional cooperation? Alliances with legal knowledge?

Technical challenges: two layers

Lucie Guibault

1) Balance between globalization and localization of licenses

  • Goals about going global, but also important to encourage the use of local licenses
  • Ex. database: how to aim towards globalization but also respect local

2) Generalization vs. customization

  • Holland: research on specific use of licenses; government involvement, use of government works
  • But the compatibility of the licenses may not meet all types of authors, for ex. Government
  • Ex. BBC: used the skeleton of CC licenses to fit its own needs
  • Governments and Science Commons can also custom their own licenses

3) Both oppositions are reflected in the dichotomy of the Commons Deed and the Legal Code

  • Language of deed is the same in all languages, but not the same in the legal code

Questions / Comments regarding Future Versioning

C: Larry Lessig

  • original idea: legal code of CC license doesn’t have to be written by CC
  • MIT could’ve done it, but they adopted CC. still, another institution could draft their own version.
  • CC could have a procedure to approve other license.
  • more fundamental question: are CC licenses contracts or licenses?
  • how to get judges to think about it differently: think about sequence of litigation.
  • how can a court say that because a license isn’t signed, it’s not valid. we want to avoid click-wrap as method of acceptance.
  • rather think about waiving certain rights e.g. trespassing analogy

C: Alek Tarkowski CC Poland gather info from lawyers about what an average person that understand the license.

A: Andres most of the time, your average user won’t understand what its all about.

C: Melanie: think about a way to provide legal information on how to deal with licenses potential infringement (explain steps before cease and desist letter) which would not be legal advise, not full text?

Private International Law

Mirelle van Eechoud (studies on the use of CC at Institute of Information Law)

1) why should we discuss Private International Law (PIL)?

  • all the licenses allow for worldwide use from private law perspective, this invokes international principles
  • Problems with licenses:absence of applicable law

2) European perspective:

  • PIL rules are national rules. At European level = harmonized rules
  • European rule is relevant for other countries too

3) What is PIL?

  • what jurisdiction? (court assumes jurisdiction, but not necessarily the law of that jurisdiction)
  • what law should apply?
  • enforcement
  • caution for using PIL in CC: because there’s only limited freedom in author’s resolution options

4) Principles of PIL:

  • US: legitimate expectations of parties
  • EU: rules to protect the “weaker” party
  • characterization is a big issue
  • it’s important how you characterize a legal issue, especially if it’s a CONTRACT
  • Freedom for contracting parties/licensor to chose:

a)contractual issues

    • competent court? yes (Brussels I)
    • applicable law? yes (Rome I Conventions)

b)infringement issues

    • competent court? yes (Brussels I)
    • applicable law? no (Rome II regulation)-- because of territoriality principle; not yet written into law, but it’s on the way: a separate rule for IP infringement—for most issues, the law applicable is the law in which protection is sought (don’t have to depend on Berne Convention)

5) what if no PIL clause in CC?

a) Jurisdiction:

  • for contracts:
    • where the defendant resides,
    • place where contractual obligation has to be performed
  • for infringement:
    • place where the defendant resides,
    • place of infringement

b) Applicable Law:

  • contracts: country w/ closest connection, presumed where “characteristic performer” resides (CC = the author)
  • for infringement: country for which protection is claimed (would be difficult in internet world: many countries could be valid, so a court would do anything to apply its own law)

6) (dis)advantages

  • ported licenses including jurisdiction name, ie “Croatia”, could be made clearer in an explicit clause
  • what law are you going to choose?
  • PIL clause would “nationalize” the licenses even more
  • explicit reference to a jurisdiction., then that country will apply its own rules
  • how much internationalization to we want?
  • arbitration? to get away from black letter private law, then look at ex. industrial arbitration, for ways to get around competency ambiguities

Questions / Comments on PIL

C: Catharina maybe the reason for so many uses of generic licenses is because of territoriality situation ie a German deed, infringement in France, so French courts must interpret a German deed

Q: Larry do we need to think of it as a license? as a contract? imagine a case with BY: local contract law says its not a contract.

  • does the license still function as a license?
  • if sued, and contract isn’t enforceable. how can you sue for © infringement if explicit obligations? if someone fails to live up to it, why is it not enforceable?

A: Mireille yes, as long as you can claim ©. but not so clear with 3rd party.

Q: Larry concrete example where 3rd party isn’t clear holder?

A: Mireille if you don’t categorize license as a contract, then you can’t put a PIL clause in there at all—you won’t be allowed to make that choice.

A: Lucie non-contract-like clause. some rights you can fall back onto ©. but SA is not a © action. so if you violate SA, there is no © applicable.

Q: Larry but does it NEED to be interpreted as a contract? if SA is being used as a condition to say that you waive your right to sue under ©, then true. also the philosophy of GPL.

C: Hierkko CC Finland no reciprocity. the licensee is not obliged to do anything to the licensor. SA is only a restriction. the license is a permission. it solves a EU legislation problem (consumer contract) which has to be drafted in the language of the consumer party. would have to comply w/ consumer legislation as well

A: Lucie depends on country

Q: Andres is it a good idea to have a national translation of license? it’s a problem. reciprocity? its not necessary in most jurisdiction

A: Lucie the obligation of SA is an obligation

C: you don’t HAVE to do anything

C: Larry clash of legal cultures. it might look like a contract, but it doesn’t have to be one to function like one.

C: Andres judge will say it’s not a contract unless formal obligations

C: Larry it’s ok if it’s not a contract, because you achieve everything without it being a contract. I’ve been avoiding of the formal category of “contract.” try to get the judge to look at it in © context

Q: Hierkko what kind of contractual elements does this license have? it’s futile to ask if the legal thing we’re using is a license or contract, better to think about legal consequences

C: Bulgaria in Bulgaria, it’s important to think about contracts, because the only way to waive © rights is through a contract. Bulgarian courts won’t say that the author permitted it. the court says the contract has to be in writing. © alone wouldn’t protect. Bulgarian law is so formal that even a donation is a contract

C: Philippines In the Philippines, we see the CC license as a contract because we follow the Berne convention, and civil (not common) law. Even considering that the license is to be deemed a waiver of rights; in the Philippines, waivers of rights must be in writing. Further, it must be noted that the Philippines already recognizes e-document as a legal contract, in light of the Philippine e-commerce law...

C: Larry technically, has there ever been a case where a © owner in writing waived rights, someone follows those rights, and the court finds it infringing? if they do interpret it that way, then maybe you can’t have CC in those jurisdictions. but © is a property right

C: Bulgaria we don’t have extensive IP litigation. because no signature, it’d weigh heavily (by the licensor)

A: Larry same problem as Philippines?

C: Bulgaria judges would look for e-signature. this is my situation. but we haven’t had that case.

Q: Finland if you’re making a contract, then you have to have legal competence. are we saying that you have to be of a certain age?

Q: Mireille a 2-yr old can be a © holder?

C: Larry well, a 2-yr old can be a infringer, why not a holder?

Collecting Societies

Meetings with CISAC

Paul Keller'

1) General

  • collecting societies (CS): don’t allow ways to use CC licenses - so licensors are blocked from major form of revenue
  • working group: mainly a mailing list, brainstorming / strategies
  • lobby CS for total opt-out. i.e. someone can take back whole work and then apply CC
  • members of CS should at least allowed for NC licenses. mixing of two economies.

2) CISAC

  • explorative talks, identify the issues. they have a working group on CC
  • they won’t work with CC becausethey believe the definition of NC is too fuzzy- afraid that NC will shift into their royalties
  • CC licenses are unlimited in time.
  • CISAC wants to protect all the musicians in the world who won’t understand what they’re getting themselves into
  • CC sent out surveys to US CS, they returned to CISAC and said that the info is confidential
  • nothing has changed substantially.
  • drafting language to request back the NC use of work
  • they might have an interest in exploring NC option
  • but still nothing concrete

3) Talks with BUMA/STEMRA (Netherlands)

  • CC Netherlands is talking with the Dutch CS. Agreed with them work on making a pilot project possible.
  • if so, then CC needs a better “definition” of NC
  • a list of NC activities (rather than make a definition)
  • will describe commercial use, so that everything else will be NC.
  • the current working version (which would be used to clarify the scope of what is considered commercial use during an eventual pilot project in NL):

Each use of the work by for profit entities is considered to be ‘commercial use’.

In addition each distribution, public display, public performance or publicly digital performance that is conditional on the payment of a fee or other form of financial compensation (including use of the work in combination with advertisements or other similar activities that are intended to generate income for the licensee or third parties) is considered ‘commercial use'.

Furthermore each distribution, public display, public performance or publicly digital performance of the work by broadcast organisations and each use of the work in hotels, restaurants, bars and bars as well as in shops and salesrooms is considered to be ‘commercial use’.

- Comments: what does that mean? can you use on youtube? Sony if gave away for free?


Progress in France

Melanie Dulong de Rosnay

1) Commission on Open Works

  • Ministry of Culture Advisory Board: 30 members, 8 months, 1 report to be published, 17 presentations by outsiders (magnatune, jamendo, etc)
  • magnatune proved that its possible to make $ with CC
  • moral rights = ok, looks compatible, but need further work
  • raised issues: interoperability with other open licenses, contractual chain complexity management, NC vs exclusivity in current business models

2) CS position

  • usual critics + domain-specific practices: phonogrammers publishing: exclusivity and stop CC after a deal,
  • images: flickr, etc as unfair competition and contractual pressure (city Brest)
  • reciprocity agreements? Still no precise information
  • SACD (CS for dramatic and audiovisual, 1st CS in world built in 1777)
  • members can use a CC-NC license
  • but the statutes will not be modified, it is an experiment, a tolerance, SACD would not exercise all her rights
  • they refuse to manage the commercial rights (they usually charge NC uses), CC-licensed works return to individual management
  • will be discussed next week with CISAC legal board

3) CISAC Intl Council of Graphic, Plastic, and Photographic Arts

  • CS, CISAC, WIPO reps
  • OA models and CS clause
  • 1150 paid staff members of a “cybernetic sect”
  • funding from “imperialist companies who want to destroy © and CS systems”


CISAC, its members and CC

David Uwemedimo (Head of Legal Affairs CISAC)

1) CISAC

  • formed in 1926 in Paris, 200 members in 100 countries
  • confederation representing 2.5 million composers, authors, and publishers
  • annual turnover = $6 billion

2) CS goal

  • individual creators cannot enter into contracts with millions of © users
  • perhaps CC is a new model?
  • each creator wants ONE entity to whom they entrust their work
  • creatorcontractCS

3) concerns of the creative community

  • almost everyone agrees that the creator does have a choice
  • but the devil’s the detail / what are the consequences?
    • undermines the inherent value of creative works in general and of © collective administration in particular
    • undermines a global culture which is dependent on economic incentive as a catalyst *societies and not creators often own the performing right
    • some ex. of member creators trying to reclaim performing rights in order to enter CC license
    • collective administration ensures “strength in numbers”--(as an individual, the single creator is vulnerable - by joining the society, there’s more leverage, i.e. negotiating good rates)
    • problems with joint authorship (practical problems of joint authors not agreeing on terms)
    • with open licensing, a creator is signing away his rights in his creations for the whole world, in perpetuity, for free and irrevocably (no option to “repent”)

4) Concerns about CC

  • some literature has been confusing (wording in licensing)
  • relatively new and has not stood the test of time
  • incompatibility with some national laws
  • problems with administrative structure
  • CC isn’t setup to defend individual rights of creators

5) Conclusion

  • nothing inherently wrong with CC because it’s based on © (the CC licenses ARE licenses)
  • most of the concern is in the detail
  • need to stay in contact

Questions /Comments on Collecting Societies

Q: Cory Doctorow results of valuing works using traditional economic measures, most net works = $0. we can value © works in the number of successes

A: David heavy economists to prove any point. if you look at the pure financial value of © In some countries, there is no absolute value of ©. In US, the returns are less than in Austria. how much value is put on ©? It varies from country to country.

Q: Andres philosophical underpinnings of creators. © as an incentive? If the internet has taught us anything, then User Generated Content (UGC) proves that people will create regardless. People will create even without an economic incentive. It’s difficult to make an estimate of value just bc someone is willing to pay for it. We all believe in the wealth of UGC. A: David: do you believe in the economic incentive of ©?

A: Andres it depends. some people do it for the money. The vast majority of people are realizing that © are for them. I don’t like the assumption that just because something isn’t commercial it doesn’t have value

Q: CC Finland CS are a bunch of producers who get together to sell under one agent. a cartel, but tolerated by legislators because it has some benefits. CC isn’t just a threat or a nuisance, it’s also a possibility to show that you are willing to make exceptions to the cartel.

A: David I would agree with what you said, but I won’t say that we are producers. But our members want to talk to you. Creators should be entitled to do it, but that equally protects the creator. The composers have asked me to be here to talk to you. We are the creative community.

C: Larry Debate at CISPAC in Brussels: “RESPECT”: can © holders get any respect? Can we recognize that there are two kinds of creators? How do we represent amateur creators in the commercial world? You’ll have to organize that too! We all do things for free that doesn’t decrease the value of the goods

A: David CC is seen as a social movement for individuals that don’t want to respect ©. In relation to CISAC, we can’t control everything our people say. In regards to CC, I’d rather deal with you than with the record companies. It’s rare to talk to someone who hears a criticism and is open to it. CC wants to do what best for the creator. We share that philosophy. We can do business with CC. We believe we can work out the problems, we have the constituency of the “greater.”

C: CC Budapest (economist): We are in the same business—the business of supplying a service to creators. Millions of users are using our services. We’re not forcing them. CS say what you are saying. Economics told me that there is problem with agency. The managers are the owners, and they have conflicting interests. Managers have different objectives than the creators.

A: David The board of directors is elected by the creative community. And management is appointed by the board. Then that is the responsibility of the composers to correct it. If managers aren’t performing, then the board directors release them.

Q: Carolina CC Colombia: I’m not sure we can be completely blamed for the undermining of ©. ex from Colombia: I went to a university, spoke with a teacher, and she does research in the jungle. She had a compilation of music recorded, and the printer asks for a receipt for the CS. Carolina says that she doesn’t have to, according to Colombian law. But she always pays. So how can the CS get this $ and keep it? much of what you blame on CC reflects practices already going on.

A: David nobody would suggest that CS are perfect. There are measures in place to prevent abuse of dominant position

Q: Ronaldo Lemos (Brazil): You suggested research of CC users. Has there ever been a survey of CISAC users for feedback? Suggestions/perceptions of CS?

A: David we probably haven’t done enough research. Most of it has been involuntary. ex of UK monopoly inquiry 44 recommendations of change. We as CS need to be more proactive. We need to find out to what extent the individual creator can get what they deserve.

Q: Yuko CC Japan you mentioned that CC might undermine the economic incentive. ex where that’s not the case. CC could create a need for content, and thereby create the economic incentive for them. This might help you in some way.

A: David this was only a list of concerns. We can’t do anything about the more nebulous criticism. Instead we can focus on other issues, such as moral rights.

Q: CC Taiwan If some CC users gathered together and applied for membership, could they join CISAC?

A: David yes, providing they fulfill the criteria of membership

C: what are the plans of CS in NC? What is the status?

A: David its part of the constructive discussion. There are many members looking for solutions

C: CC Finland Music industry is the Rockstar industry. In Finland you can vote in the CS after you’ve had 3 yrs in the society. The 5% of people voting are the ones that don’t have much to win from CC (comment: that’s the same in Australia)

A: David CS’s job is to collect royalties and distribute. Truth is: Paul McCartney plays more music than John Smith, so he makes more $. so a smaller amount of people generate $. There are people around the world that depend on CS to earn a living. I’ve seen creators that live off CS. in relation to the corporate structures, that hasn’t been my experience. the directors aren’t Paul Mccartneys. big players don’t tend to sit on the boards - but the superstars get more votes than the average composer.

Q: Giogrios I was taken aback by you saying that you were representing the creative community. is that part of the CS trying have a monopoly with its model? if you’re representing 2 million authors, then there are at least 1 million users you aren’t representing. is it just my impression that you are trying to represent a community that is broader than you are?

A: David no, I do think we are representing the creative community, as long as the creator’s work is being exploited significantly. We also believe that you represent the creative community. We never suggest we’re on an exclusive basis. We believe that CISAC is not the exclusive representative of the community, which is why I’m here today.

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