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

Sun Oct 12 21:59:03 UTC 2014

Hi everyone,

A quick note here that I've taken note of Gisle's comments, and he's also
started a thread on the private CC affiliate list where (as Mike notes)
he's raised related concerns before.  We'll be moving that discussion to
the license-discuss list this next week so that those of you there
interested in the CC-specific question can participate.

Diane

On Sat, Oct 11, 2014 at 1:43 PM, Mike Linksvayer <ml at gondwanaland.com>
wrote:

> Gisle has been bringing it to the attention of CC for a long time, but see
> http://lists.ibiblio.org/pipermail/cc-community/2014-October/008866.html
> for recent thread.
>
> If I understand what Gisle has posted before correctly, performances of
> sound recordings not subject to copyright are subject to a levy, per
> http://www.kopinor.no/en/copyright/copyright-act "For public performance
> of sound fixations that are not protected under the copyright act, the Act
> No. 4 of 14 December 1956 relating to a levy on the public performance of
> performing artists’ performances, etc. applies." From an OD conformance
> perspective, if CC0 actually makes a work not subject to copyright in
> Norway, CC0 would have to be seen as an inadequate grant of permissions at
> least for sound recordings in Norway.
>
> As there are already suggestions of working on a OD 2.1 revision, it may
> be worth more explicitly addressing how resiliently an open license must
> achieve its intended purpose in the face of peculiar laws like the above.
> I'd love to read about (but not encourage new ones ;)) other examples of
> intended permissions being thwarted.
>
> Mike
>
> On Sat, Oct 11, 2014 at 9:34 AM, Aaron Wolf <wolftune at gmail.com> wrote:
>
>> Hi Gisle,
>>
>> This information and the clear way you wrote it out is very useful and
>> interesting. If you have not yet, please put this on a published page
>> somewhere that it can be referenced, and ideally bring it to the attention
>> of CC.
>>
>> Best,
>> Aaron
>>
>> --
>> Aaron Wolf
>> wolftune.com
>>
>> On Sat, Oct 11, 2014 at 6:44 AM, Gisle Hannemyr <gisle at ifi.uio.no> wrote:
>>
>>> 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/ ]
>>> ========================================================================
>>>     "Don't follow leaders // Watch the parkin' meters" - Bob Dylan
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>>
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