Re: IANG license translation draft

[Patrick Godeau <pogo@xxxxxxxxx>]

Hello Dmytri and all,

Dmytri Kleiner a écrit :
> The IANG license, I feel comes very close to realizing the sort of 
> license I thing the peer-production license should be, with the 
> understanding that there would need be more explicit clauses limiting 
> certain forms of "Economic Contributions," particularly to avoid 
> allowing property holders to extract surplus value.

I agree that avoiding the appropriation of surplus value is a crucial 
requirement, but in my view, it is avoided precisely by allowing 
economic contributors, especially customers, to control the economy. 
Customers wouldn't extract surplus value from themselves.

> Such a license would adequately cover what I describe as endogenic 
> usage of common-stock.
>
> This still leaves open the question of what terms to apply to exogenic 
> usage.
>
> For groups of peer-producers that want to simply forbid exogenic 
> usage, this is not a problem, but for most artists this is simply not 
> an option.
>
> For instance, how many recording artist would agree to a license that 
> forbid commercial radio stations or night clubs from playing the music?

Actually, radios and night clubs don't read licenses, they pay a fee to 
collection societies, and play all the music they want, assuming that 
all music is affiliated to these societies.

> Obviously, since the number of radio stations and nightclubs that 
> would qualify as commons-based peer producers and thus qualify for 
> free usage is small, 

There is however a number of non-profit radios (and webradios), whether 
state-owned or associative. In fact I think they are more numerous than 
commercial radios, even if the number of listeners may be lower. Some 
already use commons licenses (BBC, Arte).

> a commons license for popular art forms must also specify some sort of 
> non-free terms for exogenic usage by private radio stations and 
> nightclubs.

I don't think it would be wise to include non-free terms in a free 
license. Anyway, if authors want to have special terms, nobody can stop 
them from distributing their work under a different license, possibly in 
parallel with the free license.

> But, as a common-stock is owned in common, it can not be the 
> "original" artist privately that benefits from such non-free terms, as 
> is the case in Copyleft Non-Commercial, as that asynchronous 
> relationship between the "original author" and other commons users 
> means the creation is not actually a part of the commons. The non-free 
> terms must benefit the commons as a whole, and not any "orginal author."

I agree, but for me "commons as a whole" should include users, and 
"asynchronous relationship" is no more desirable between authors and 
users, than between original and secondary authors.

> But as commons-based peer production is made up of autonomous 
> individuals and groups of commons based producers, how can any temrs 
> benefit the "commons as a whole."
>
> In possibility is employing a Collection Society such as GEMA, SoCan, 
> etc.
>
> http://en.wikipedia.org/wiki/Collection_society
>
> Of course, there are problems with this approach, and the function of 
> such a society must be clearly defined, some risks immediately come to 
> mind:
>
>  - The society may be hyper-vigilant in collecting and thus be too 
> aggressive in claiming that certain usage is exogenic and therefor is 
> disqualified from having free access.
>
>  - The society may become too closed and not recognize or welcome new 
> peer-producers into it's membership.
>
>  - The internal structure of the society itself could become corrupt 
> and  non democratic.
>
> These risks must be mitigated by explicitly creating terms in the 
> license that define the operations of such a society quite clearly.

I believe that the terms of the IANG license already mitigate these 
risks. The society, as an Economic Project, would be submitted to direct 
democratic management, dismissibility of mandates, and open accounting. 
But most of all, it would not be controlled by those having a financial 
interest in it, but by the final users (who will presumably make the 
majority of economic contributors) thus limiting the risk of corruption.

I see other problems, however. One difficulty will be to explain to 
radios, night clubs, etc., that they must subscribe to another 
collection society, without dissuading them from playing copyleft music. 
Another problem, maybe harder, will be to explain to existing collection 
societies that they must restitute money collected for authors not 
affiliated with them. Some well-known musicians had lots of difficulties 
with this. (However, some collection societies are making progress 
towards open content licenses, see 
<http://www.digital-copyright.ca/node/4141>.)

> It also mitigated by having several such societies, not just one, so 
> that the reputation of a society would attract producers to the best 
> operated ones.

For this reason, the IANG license deliberately does not define precise 
management rules, but only gives basic principles. Each Economic Project 
can have its own rules, as long as they comply with the principles and 
are controlled by the participants.

But I see another problem with your approach, which prevents to have 
several societies. If producers want to create a derivative work, they 
should use the same collection society, or else the benefit of the 
commons would be broken. I think that it is a limitation of freedom and 
diversity.

> Assuming such societies could exist, and could represent the 
> commons-based producers, they could then license exogenic usage under 
> non-free terms, and use the funds collected to benefit the commons 
> broadly, including:
>
>  - Funding infrastructure projects that increase the productivity of 
> the commons, including capital for production, distribution and 
> archiving.
>
>  - Providing grants and awards for producers.

I think this is another reason why producers should not totally control 
these societies, which would inevitably lead to a centralization of 
power in the hands of the most influential producers. See for example 
the Sacem, a collection society having monopoly in France, where a top 
earning author has 14 more votes in general assembly. See also how best 
selling authors bargain for each disk sold twice the royalties of less 
known authors.

>  - Provide the legal and administrative management of the common-stock.
>
>  - Engage in political and educational advocacy for peer-production.
>
>
> Look forward to your comments!

To be continued in next e-mail... ;-)

--
Patrick