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

[Aaron Wolf]

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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