cases

toc Here are three cases concerning Open Access and Creative Commons: one about a text, two about videos. While they are fictitious, they are based on actual examples. =Text=

Situation:

 * 1) John publishes a scientific article in an Open Access repository. In the repository description of the file, but not in the file itself, he indicates that the article is under a http://creativecommons.org/licenses/by-nc/2.5/ch/deed.en (Attribution-NonCommercial 2.5 Switzerland) Creative Commons License.
 * 2) Jane downloads the file of John's article, re-uploads it on her non commercial site, then she links to its new URL (i.e. its location on her site) in a blog post, where she correctly copies John's CC license and indicates the original URL.
 * 3) Peter, who follows Jane's blog, likes John's article very much, so he writes about it to a mailing list, giving the new URL (on Jane's site) for its file ,
 * 4) Paul, Martha, Luke and Mary, who subscribe to that mailing list, download John's article directly from Peter's e-mail.

Problem:
Paul, Martha, Luke and Mary, not knowing that John's article is under a CC license, start e-mailing him asking for permission to re-use it themselves. This defeats the purpose of the CC license, which is precisely to explain how a work can be re-used, to spare both author and re-users this kind of "permission request" correspondence.

Solution:
=Video 1=
 * Always indicate the license you are using within the file of the work you publish in an Open Access repository, not only in the description of the file: this is required by the Definition of an Open Access Contribution of the Berlin Declaration on Open Access (see http://oa.mpg.de/openaccess-berlin/berlindeclaration.html).
 * On how to include a Creative Commons license correctly in the file of an article, see Michael Paskevicius' "Creative Commons Licensing Offline Work Walkthrough" video tutoria: http://www.youtube.com/watch?v=-pvoie4ydSw (with closed captions in English, Czech, French, Italian and Spanish).

Situation:

 * 1) John uploads on YouTube a video he wants to link to in an article he will publish in an Open Access repository,
 * 2) John indicates in the YouTube video description - but not in the video itself - that the video is under a http://creativecommons.org/licenses/by-nc/2.5/ch/deed.en (Attribution-NonCommercial 2.5 Switzerland) Creative Commons License.
 * 3) Peter, not paying attention to the video description, uses its embed code to show it on its commercial site.

Problem
Of course, Peter should have paid attention to the video description before embedding it in his site. But by default, YouTube video pages only show the first words of this description, so people often go straight for the embed code without reading it all.

Solution:
=Video 2=
 * Always indicate the license you are using within the file of your work, not only in its description: Peter, seeing this license in the video, would probably not have embedded it without asking in his commercial site.
 * You can also disable the embedding possibility if you do not want a video to be shown in contexts you dislike.
 * On YouTube at least, you can add an annotation on the video itself, with a link to the original YouTube page; see the "Video Annotations: Creating or editing annotations" tutorial: http://www.google.com/support/youtube/bin/answer.py?answer=92710&topic=14354.

Situation:

 * 1) John uploads on YouTube a video he wants to link to in an article he will publish in an Open Access repository,
 * 2) John indicates in the YouTube video description - but not in the video itself - that the video is under a http://creativecommons.org/licenses/by-nc/2.5/ch/deed.en (Attribution-NonCommercial 2.5 Switzerland) Creative Commons License.
 * 3) Jane wants to add John's video on her school's website, which is non commercial. However, her school imposes video captioning because of accessibility regulations, and video hosting platforms where captioning is possible, from which she could embed the video on her school's site, are commercial, even if they do not make users pay, because they are financed by ad revenue.
 * 4) She writes to John, asking if he would allow this captioning. John does not understand the issue and does not answer.
 * 5) Jane goes ahead and captions the video online, but keeps it private, inviting only her students to view it.
 * 6) Mary, another teacher with the same need to caption videos as Jane, goes through points 3-5 above again.
 * 7) Paul, another teacher ...etc.

Problem:
Of course, John should have studied the implications of the "Non Commercial" module before using it in his Creative Commons licenses. But many people don't, and are under the illusion that if people who re-use their work do not make a profit themselves, the "Non Commercial" module is fulfilled. This often leads, as in this example, to time-wasting repetitions that the author had not foreseen.

Solutions:
=Music= (in progress 1288634072)
 * **For authors:** even if a permission request seems odd in view of your Creative Commons license, reply and ask for more explanations.
 * Before adding the "Non Commercial" module to your Creative Commons license, carefully consider all its implications (this also applies to other works than videos).
 * Examine in particular if a "Share Alike" module might not cover just as well what you actually want. In fact, people who intend to make a profit by publishing your content are not very likely to be ready to also offer it under your Creative Commons license, as the "Share Alike" module implies.
 * **For users:** in cases like the one described above, if the author does not answer your permission request, you can write again, saying that you will interpret silence as agreement after N days.
 * At the end of the deadline, if s/he still does not answer, go ahead and publish the captioned version publicly under the same license as the his/hers.
 * Then write to the author again, giving him/her the link to the captioned video and offering to send the captioning files, adding that you are ready, should s/he wish, to delete your version if s/he uses these files to caption his/her original video.
 * If the author still does not answer, you have done what you could. Should s/he object in future, you can always make your version private again.

Story
(Based on the Nivelles judgment http://cc4dice.wikispaces.com/Nivelles_CC (Oct. 26, 2010) and on my preparation of the slides for the presentation of "Libre accès et Creative Commons" at the DICE workshop in Geneva, Nov. 11, 2011 - see http://cc4dice.wikispaces.com/GE 1288713840) In 2004, the six Belgian musicians of the Lichôdmapwa group, who are **not** members of the Belgian collecting society [|SABAM], composed and recorded a collection comprising the song Aabatchouk (3'20, and published the collection in http://www.dogmazic.net/Lichodmapwa, under a [|by-nc-nd 2.5 Creative Commons license]. In 2008, the non-profit association Festival de théâtre de Spa used part of Aabatchouk as background music for a 20 radio ad promoting the festival, without mentioning the authors. This ad was broadcast 415 times on commercial radios. The musicians contacted the association, arguing that it had violated their Creative Commons license. As no amicable agreement was found, the musicians sued the association, requesting € 10.380 as a compensation, while the defender only wanted to pay € 1.500. In her October 26, 2010, the judge of the Administrative court of Nivelles (BE), found that the association had violated all 3 clauses of the Creative Commons license for Aabatchouk. However, considering that there was a contradiction between choosing a NC license and asking for a compensation amounting to more than what the musicians would have received via the SABAM had they been members of it, she decided that the association must pay them € 4.500 (€ 1.500 for each violated clause of the license), and the costs of the lawsuit €896.33. Claude is preparing a case study (to be publicly web-hosted) for the DICE (Digital copyrights for e-learning) project, and a presentation for a workshop to be held at Geneva University, about Open Access and Creative Commons. She wants to include something about this case in both.

Questions

 * 1) May she insert a brief excerpt of Aabatchouk, attributing it to the Belgian musicians, in her slides for the in-presence Geneva workshop?
 * 2) May she play a brief excerpt of Aabatchouk during the workshop, without inserting it in her slides?
 * 3) May she insert a brief excerpt of Aabatchouk, attributing it to the Belgian musicians, in her slides when she publishes them online in Open Access under a http://creativecommons.org/licenses/by-nc-sa/2.5/ch/ license?
 * 4) Does she need to ask for the authors' permission?

Answer:
What is the answer to the case ?

Self evaluation 1
I can solve this case… Not at all | Hardly | Partially | Mostly | Completely

1. Is the content used in Switzerland ? / Where is the content used?
In Switzerland and online.

2. Is the content protected by copyright?
Yes: Creative Commons licenses are based on copyright law and are only a way for authors to permit certain uses that are restricted by default in copyright law. Aabatchouk is under a under a [|by-nc-nd 2.5 Creative Commons license], which states: > "You are free: > * to Share — to copy, distribute and transmit the work > Under the following conditions: > * Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). > * Noncommercial — You may not use this work for commercial purposes. > * No Derivative Works — You may not alter, transform, or build upon this work. " However, the license also states: > "... Other Rights — In no way are any of the following rights affected by the license: > * Your fair dealing or fair use rights, or other applicable copyright exceptions and limitations; ..."

3. Who is the rights holder of the protected content?
The 6 Belgian musicians listed in En la cause n° 09-1684-A du rôle général:.

4. How is the protected content used?
1. Inserting a brief excerpt of Aabatchouk in slides (to be) used in a face to face presentation in Geneva > The license for the content includes the "No Derivative Works" clause, but it also contains the "fair use" waiver. While Swiss copyright law does not use the "fair use" concept, it allows citations. However, it also contains dispositions concerning the levying of tariffs for public performance by collecting societies. Even thought the authors are not members of the Belgian collecting society SABAM, these dispositions may still apply for public performance in Switzerland.

2. Playing a brief excerpt of Aabatchouk, without inserting it in slides, during a face to face presentation in Geneva > See 1 re citation right and tariffs levied by collecting societies.

3. Inserting a brief excerpt of Aabatchouk in slidesin her slides when published online in Open Access under a http://creativecommons.org/licenses/by-nc-sa/2.5/ch/ license > Her license does not have the "No Derivative Works" clause: therefore it is not compatible with the authors' license which includes it.

4. Must she ask for the authors' permission to do the things described in 1-3 above? > This depends on whether the used excerpt is an allowed citation in Swiss and Belgian copyright laws. But even if it is an allowed citation, or even if she asks the authors and they do grant her permission, the collecting societies issue remains

Expert solution + Variants (what if)
What if she plays the whole of Aabatchouk during the Face to Face workshop, attributing it to the authors and stating their license? > This would be correct as far as the authors are concerned, as no derivative work would be created. But Swiss collecting societies might still want to levy a tariff for that. What if someone else, a musicologist, analyzes Aabatchouk during a lesson, playing its various modules on the piano, comparing them with similar / identical modules in traditional folk music etc. - may this musicologist then put the recording of that lesson in the Open Access repository of his university? > Maybe yes, maybe no: see above. It would be safer to provide a timed label file, which users could then add to the music file in their audio editing software. > Is such a description of the structure of Aabatchouk in the labels a derivative work, though? And this screenshot?

Self evaluation 2
After having studied this module, I can now solve the case… Not at all | Hardly | Partially | Mostly | Completely

Answer
What is the solution to this case now? > If republishing someone else's content might create legal issues - whether strictly pertaining to author's rights or to other aspects of copyright law (role of collection societies), and: > If linking would serve the same purpose, then > -> link rather than republish (the previous solution provided by the user appears as comparison)