Re: whichwayisup: CC-v3.0 licenses do not meet the DFSG

[Thadeu Lima de Souza Cascardo <cascardo@minaslivre.org>]

> [...]
> |  e. For the avoidance of doubt:
> | 
> |      i. Non-waivable Compulsory License Schemes. In those
> |         jurisdictions in which the right to collect royalties through
> |         any statutory or compulsory licensing scheme cannot be
> |         waived, the Licensor reserves the exclusive right to collect
> |         such royalties for any exercise by You of the rights granted
> |         under this License;
> 
> This is worrying, IMHO.
> DFSG#1 states, in part: "The license may not require a royalty or other
> fee".
> Hence I would say that a license where the Licensor reserves the
> exclusive right to collect royalties does *not* meet DFSG#1.
> On the other hand, in a jurisdiction in which royalty collection rights
> cannot be waived, this issue seems to be *unavoidable*...  How can that
> be worked around?  Is this clause a legal no-op?  But is this a freeness
> issue anyway?  How do we deal with jurisdictions where granting some of
> the permissions required by the DFSG is *impossible*?

IANAL, IANADD, TINLA, etc.

I guess the meaning of this clause is that the Licensor will be the only
one to collect such royalties. That is, nobody else will collect them.
That is a plus.

Here in Brazil and I guess in many other places, there are some offices
that are responsible for collecting these royalties. I don't know the
details, but they seem to collect in places that publicly display or
perform works, based on the number and, perhaps, the authors of the
works. But I am not sure they do it nicely. It seems they may charge
statically, like 2 hours of show will be about 20 songs and they charge
for it, ignoring that you may have a license to publicly perform the
work freely.

So, this clause would be a plus in cases like this, since the Licensor
will not grant some office like this the right to collect those
royalties.

I don't know if the right to collect royalties cannot be waived in
Brazil, but if they can, this clause could say something like: "the
Licensor reserves the exclusive right to collect [...], and waive it in
the case it is possible/allowed."

Regards,
Thadeu Lima de Souza Cascardo.