A couple of Creative Commons questions
April 15, 2008 10:32 am GeneralThere are two questions about Creative Commons for which I don’t really have an answer, I thought that this might be a good place to ask.
- Can a company use CC BY-NC (or any other NC licenced) music as hold music for its phone system? Since it’s a company, playing the music to eventual clients, at least one person I know has decided that he’s not allowed to use NC music for this purpose, but there doesn’t seem to me to be any commercial application of the music here. Is this a grey area, or is there a clear-cut answer one way or the other?
- Can I distribute a translation of a document released under CC BY-ND-NC? Or does a translation count as a derivative work? And if I can publish the translation, does it also have to be under BY-ND-NC?
Update: The consensus seems to be that the answer to (1) is “this is unclear” and the answer to (2) is “of course I can’t”.
April 15th, 2008 at 10:50 am
I am not a lawyer, so this is not a legal advice. Having said that, I’ve been using CC for a while for my video projects, so I have looked at them in detail.
1. Yes, it is commercial. Anything that adds value to a company, is considered commercial, even if it doesn’t directly used to bring money in. For example, you can’t add NC music to your video and then post it on youtube, because youtube is a commercial entity, even if the music or video does not directly make money as it would require the click of an ad.
2. No, you can’t do a translation. The point of NC is to not diminish potential financial value by way of transformation. If you do a translation, you remove the ability of the original author to make money if he/she decides to sell translated copies in the future. For example, you can’t put together a video and an ND music, because this constitutes as a derivative work — even if you changed nothing in the composition.
Because of these restrictions (many people think that CC licenses are liberal, but most of the CC work is licensed under NC/ND which are not), I only use CC-BY music and nothing else (and I make sure it’s not CC-BY-SA either). There are only 100 CC-BY albums to choose from (at jamendo.com you can filter them), but it’s the only way to go about it without problems.
As for the document, you will need special permission to do the translation. The original author can re-license specifically for you.
April 15th, 2008 at 12:10 pm
You might want to post the bits from the full CC deed text that makes these cases confusing for you. I found the full text to be pretty clear, and based on a recent reading, your cases seem pretty straightforward.
April 15th, 2008 at 12:19 pm
Indeed, the second question is straightforward. Right there in the definitions:
So translating an ND work is out.
But in the BY-NC-SA licence, it says this:
So in the case of hold music, there’s no primary intention to give commercial advantage or generate private monetary compensation (assuming that I’m not having someone on hold at 75c per minute).
So, how’d I do? 2 for 2?
April 15th, 2008 at 1:50 pm
IANAL.
Although your question is about NC licensed stuff and how to use it further, the best way is, IMO, is to only use BY-SA stuff, see Eugenias post. NC puts in a lot of problems – just search the web and the FSF pages for “NC considered harmful” stuff. You just want to save the ‘4 freedoms’ for yourself and the people you give the stuff to – NC breaks this. Maybe you could talk about re-licensing with author – is not the obvious that NC could be harmful – so there is a good chance that he agrees.
April 15th, 2008 at 2:48 pm
I know that APRA (www.apra.com.au) collects fees from businesses for hold music, so it is obviously considered to be commercial enough for the music industry to want royalties.
Think of it like this: do you derive any value from playing music while on hold instead of silence or some other non-copyrighted audio?
April 15th, 2008 at 10:00 pm
Of course, THIS IS NOT A LEGAL ADVICE, IF YOU ACT ON ITS BEHALF YOU AKNOWLEDGE THAT ALL CONSEQUENCES WILL BE ENTIRELY YOUR RESPONSABILITY
Hello, IANAL, but I’ve been involved in the localization process of the CC licenses, and my best answer to your questions here posted is ‘depends’.
There are a lot of variables you did not clear out: for instance what version of the license are we talking about? (1.0; 2.0; 2.5; 3.0) they’re quite different.. and what are the jurisdictions involved? Actual Law may differ a lot in different countries.. Assuming we’re discussing only about U.S. copyright system, I’d say that:
1) there’s no clear agreement on what a commercial use really is, much is left open for interpretation, but a court may well disagree on the Non Commerciality of that use, so I’d say no, you shouldn’t use a NC audio track as hold music in a commercial entity phone system.
2) No you can’t distribute a translation of a document released under CC BY-ND-NC. Translation rights are explicitly retained by the copyright holder in a ND license.
But do not despair.. even if you can’t use those works straightforward, you can ask permission to the copyright holder.
If he does give you explicit permission for those uses (depending on the jurisdictions a ‘written’ permission may be required, an e-mail is not always sufficient, a fax or telefax is) you will be legally entitled to make use of those works in the manner explicitly consented by the copyright holder.
Caveat! In this case you’ll be bound by the provisions of that specific private agreement and not by a CC license, unless you specifically agree with the author to recall the duties and permissions granted in the CC license.
In lay terms, that means that you do not have any of the rights granted by the CC licenses unless you have ageed so with the author.
April 15th, 2008 at 10:42 pm
Exactly. In a court of law, this would be considered commercial usage.
Now, David, it’s easy to resolve this. Simply use CC-BY music only. There’s enough selection there to find something that will fit your “on hold” needs (I mean, come on, being difficult about telephone quality music? 🙂 ). If I able to find good-enough music for 20 of my videos, I think you will find a good enough tune too under that license for the “hold” purpose.
Jamendo’s CC-BY only music albums: here.
Don’t resort that page or it will also include CC-BY-SA music then (bug at Jamendo).