[od-discuss] Concerns about CC0 and Open Definition conformance

[Gisle Hannemyr]

Referring to this page:

   http://opendefinition.org/licenses/

I am concerned about the inclusion of the CC0 legal tool in the list
of Open Definition conformant licenses.

I believe that the current version of CC0 is defective, and that it
should not be included in this fine list until it is suitably amended.

The Open Definition states that:

   “Open means anyone can freely access, use, modify, and share for
    any purpose.”

The problem with CC0 is that – while its *intent* is aligned with this
definition – its *legal effect* in some jurisdictions is not.

The problem stems from an understanding of the concept “public domain”
that is not universal.  I realize, of course, that in most jurisdictions
around the world, placing a work in the public domain means it is free
(as in “free beer” as well as in “freedom”) to access, use, modify, and
share the work.

However, in some jurisdictions, including the Kingdom of Norway, when an
author abandons his or her copyright, the legal effect is that these
rights are passed on to certain collection societies. The collection
societies may then impose levies on certain uses of the work.

You can find details about the background for such a levy here:

http://www.ffuk.no/about-the-fund-for-performing-artists.70865.en.html

The key sentence is this:

   "Changes in legislation entail that users must pay remuneration
    to Gramo (joint collecting society in Norway for musicians,
    performing artists and phonogram producers) for the use of
    copyright-protected recordings, and a levy to the Fund for
    *the use of non-protected recordings*."

What this means in practice is that it is illegal in Norway for anyone
to use musical works dedicated to the public domain (i.e. "non-protected
recordings" without first paying a levy.  Provided
“anyone” include residents in Norway, CC0 is not conformant to the
Open Definition.

In 2013, revenues collected for public performances in Norway of
works in the public domain amounted to more than USD 7 million,
so this type of collection is not rare occurrence.

I should also add that this problem does not affect any of the
six core CC licenses.  When he/she uses a  CC-license, the author
retains copyright, so there are no orphan rights that can be passed
on to a collection society.

It is the total abandonment of author's rights that follows from
the CC0 legal text that is the problem.  Currently, the CC0
dedication is phrased as an unilateral act where the author
abandons *all* rights to the "greatest extent permitted by, but
not in contravention of, applicable law".  My abandoning all
rights, an author can not protest and say that his/her author's
rights are violated by Gramo demanding a levy to be paid for
public performances of the work.


I believe this defect in CC0 can be repaired. What is needed is a
fallback clause in the tool's legal text that voids the PD dedication in
jurisdictions where the dedication otherwise would limit freedoms.

For example, perhaps this can be added:

    In jurisdictions where rights waived may be reassigned to a third
    party, this dedication is void. Instead, the author reserves the
    rights to the work, and instead grants to each affected person a
    royalty-free, non transferable, non sub-licensable, non exclusive,
    irrevocable and unconditional license to access, use, modify, and
    share the work for any purpose, but not to impose fees, levies or
    any other provision that may limit the freedom to use the work.

However, until such a fallback clause is added to the tool's legal
text, I believe CC0 should not be listed as Open Definition conformant.
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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