[cc-community] ASCAP VS CREATIVE COMMONS
hancock at anansispaceworks.com
Fri Jan 5 15:53:46 EST 2007
drew Roberts wrote:
> On Friday 22 December 2006 07:44 pm, Bjorn Wijers wrote:
> You use the plural here. Is there only one collection society there or is
> there more than one?
The answer appears to be that there is one per jurisdiction (e.g. one
per country). This is analogous to how we handle "public utilities" in
the US: each town usually has an exclusive contract with a particular
electric utility company. In recent years, efforts have been made to
allow electricity production to be competitive, but line maintenance and
delivery is still a "utility monopoly".
The theory behind this is that it would be extremely wasteful to have
multiple independent electricity grids (e.g. five poles for every one we
have now, if five companies were competing for the same area).
In the case of collecting societies, this is designed to create an
effective, government-approved monopoly on "all commercial music" so as
to create a situation where artists must be paid for their work.
Ironically, a system like this was proposed in some early works in the
free software movement as a means of funding the development of free
software (early on -- say late 1980s or early 1990s. Since then, the
idea has been largely dropped: there are apparently plenty of successful
motivations to write free software without such a system).
It's been proposed again as a way to fund free-licensed aesthetic works
more recently. Lawrence Lessig envisioned a similar scheme as a music
service (there's a recording of him describing this idea as an example
before a court or hearing on file-sharing issues -- I forget what the
venue was, though it was high profile: congressional hearing or supreme
court or something of similar weight. It sticks in my mind because it
was mixed in as a sample in a piece of music I used to listen to a lot!
>>>>So the CC-BY and CC-BY-SA artists will not see a penny
> Fine, but what about BY-NC, could they sue the radio stations or venues?
That'd be fun to watch.
>>>>3) It seems even venues usually pay a blanket license (stil researching,
>>>>so I'm not certain yet) and thus the CC artists get less money when
>>>>performing than a non-CC artist.
>>>I don't follow this logic. Can you elaborate?
>>The venues pay the rights collection society (RCS) for the music being
>>played, but because the venue seem to use a blanket license the money
>>for CC artists will be collected allthough the artists won't get a penny
>>from it. Thus the CC artist get less money than those being part of a
>>rights collecting society.
>>CC-artist = gig money
>>Non-CC and member of RCS = gig money + royalties
> CC-artist just says, look, because you are paying a blanket license and my
> work is not covered, you need to pay a proportionate share of the blanket
> license to me for this gig. I am my own collection society. (I guess they
> wouldn't get the gig perhaps...)
The problem is that the venue would then have to pay twice for the same
work. This is analogous to the "Microsoft Tax" for pre-installed
* Company manufactures PCs and sells them with an O/S pre-loaded
* Almost all customers want Microsoft Windows O/S
* Microsoft sells the company a blanket license (possibly even with a
probably-illegal exclusivity provision demanding that they ONLY pre-load
* I buy laptop to install Linux, I don't want MS Windows, period.
* I STILL am paying the upcharge on the system, because the company has
already paid the "Microsoft Tax" (that system is included in the
accounting that determines how much the company must pay for their
blanket right to install Microsoft O/Ss).
* If I DEMAND that the company discount me the cost of the Microsoft O/S
which I am not receiving or using, that may send a message to that
company that not everybody wants Windows, but they can't get out of
paying the fee to Microsoft according to their contract terms. They
still have to pay $X for my machine to Microsoft. That's the "Microsoft
Tax". Forcing them to discount my machine just hurts the company. Only
if customers did this en masse, and abandoned Microsoft O/Ss, would they
be able to get out of their bind.
The collecting society (CS) situation is the same way. Since they do
play CS music, they are stuck with law and contracts requiring them to
pay money to the CS for every performance. So even though the CS has no
rights to CC music, they're still effectively collecting royalties for
them, because there's no system in place to discriminate and deduct CC
music from the venue's bill to the CS.
If you demand payment for the royalties on your CC music, just as
would've been done with CS music, you aren't taking that money away from
the CS, you're just hurting the venue (which of course means they
probably just won't play CC music, because it'd be more expensive). Of
course, since you've already given rights to play the music away, then
you can't actually demand this payment.
UNLESS, of course, you've used the NC module. Then not only can you
demand payment for "commercial use" from the venue, but you could (as
you proposed) sue the CS for copyright infringement, since they are
collecting monopoly-based royalties on your music -- and doing so
without compensating you anyway.
Intriguingly, in the jurisdictions in question (the EU), copyright
infringement is a *crime*, unlike here in the US, where it is a civil
matter. I wonder if that has any interesting consequences?
>>>If a radio station were to start up that only played CC By and BY-SA
>>>music, could the collecting society demand payments?
>>No. This is a nice clear example, but sadly not how it works in reality.
>>No 'serious' radiostation or any media outlet would be concentrating
>>only on licenses as a filter to determine what to play and what not. And
> Yes, they should. I am serious and I am getting more and more that way.
I don't know if they *should*, but I've begun thinking that it might not
be a bad idea.
The truth is that licenses are more than just legal quibbles. They
demarcate cultural boundaries. Just as there is a distinction between
"pro" and "amateur" or "fan" work, there is a distinction between
"proprietary" and "free" work. Licenses are an expression of a deeper
division of meaning.
Just as it means something different to play a tune on a penny whistle
on a street corner and to do so in a recording studio, and it means
something different to publish that recording by passing tapes to your
friends versus getting it played on the radio, it means something quite
different to publish your music under a free license than to publish it
under a proprietary one.
Certainly, one might argue that from a purely artistic perspective one
should not consider such matters in choosing what to listen to. However,
the fact is that we make this decision all the time: music played on the
radio will be heard by many, while music passed on tapes among friends
will never get outside of a tiny circle. Ultimately, we succomb to the
convenience of the sources of culture we consume, and thus restrict
ourselves routinely to music under a particular set of licenses that
allow those distribution modes. Listening solely to free music would be
no different, and listening to a free channel or station as one option
among many is no more peculiar than watching PBS versus Fox [US
references: "public television" versus a "commercial network"].
>>Personally, I wouldn't create a favorite playlist based
>>on license nor would I select my dinner based on color ;)
> You of course are free to run your life as you wish within certain broad
> parameters. If you want to eat blue mashed potatoes and green mean, be my
Now you're just getting silly. ;-)
>>If we are not able to resolve these issues it doesn't matter which
>>specific version of the CC licenses at all at this moment. We need to
>>resolve this if CC is ever to be usefull for musical creators in the
>>Netherlands at all.
> You are of course free to hold this view. I think that it is more important to
> build up a large enough body copyleft works to be compelling for re-use.
Sure, drew, but Bjorn's point is that these details don't affect the
legal problem. It's not even a question of CC versus FSF or custom
licenses. It's a matter of artists being able to independently sell or
license their work independently of nationally-sanctioned monopolies *at
Note that this is NOT a problem for CC to solve. It can't. It doesn't
matter what the legal structure of the licenses is.
The problem is basically political: releasing the chokehold that the CSs
have on their artists. This could be instituted via regulations (like
the one that apparently keeps ASCAP and BMI from excercising these
exclusions), or it could be done via lawsuits and precedents (assuming
you're in a jurisdiction that respects legal precedent), or it could be
done by providing some viable alternative to the local CS for artists to
Any way you approach it though, it's going to be a fairly intractable
> That said, I do not wish to see your approach fail. I wish you all the best in
> getting the collection societies of Europe to see sense.
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com
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