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

Sat Oct 11 20:43:25 UTC 2014

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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