[cc-community] ASCAP VS CREATIVE COMMONS

Bjorn Wijers mailings at bdisfunctional.net
Sat Jan 6 05:44:31 EST 2007


Drew et al,

>>> 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). 
> 
> Fine, I am seeking knowledge here. Now would it be illegal in these countries 
> for another collection society geared to the needs of Free Works and other CC 
> licensed works to set up and operate?

As far as my knowledge goes it depends on the rights you want to collect 
for and which country specifically. So for the Netherlands I presume 
(perhaps any lawyer with some knowledge of the Dutch legal system can 
confirm this?) it would be impossible to start a rights collection 
society which deals with:

1) performance rights, such as live music or background music in bars. 
Handled by BUMA see http://www.bumastemra.nl (dutch)

2) rights concerning mechanical reproduction
Handled by  STEMRA see http://www.bumastemra.nl (dutch)

3) neighbouring rights
Handled by SENA see: 
http://www.sena.nl/pages/en/creators/Sena/Wetnaburigerechten.html

All these organizations have been granted a monopoly by the Dutch
government for collection their specific rights. As far as I know this 
leaves it still possible for a non-RCS member using a CC license with a 
NC clause to take actions when his/her music is being used commercially 
although in reality I doubt somebody is willing to take actions against it.

>>>>>> So the CC-BY and CC-BY-SA artists will not see a penny
>>>>>> back.
>>> Fine, but what about BY-NC, could they sue the radio stations or venues?
>> That'd be fun to watch.

I belief I answered this in this email to the cc-licenses list, see
http://lists.ibiblio.org/pipermail/cc-licenses/2007-January/004829.html

> 
> But could they? Or do the monopoly laws make this impossible?

I belief they could, but I doubt this wil happen in reality soon.

>>>>>> 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.
> 
> Does anyone have a sample of these licenses? I would like to see what they 
> look like.

I would like to see them as well...but I haven't found them (yet).


>>>> 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
>> operating systems:
> 
> Well, if you get enough Free works, a venue could go all Free and not sign up 
> with the collection society. Or would the law make them sign up and pay 
> anyway?


Good question. I belief that the venue - actually a company or any 
organization - playing ARR music is obliged to pay a certain sum, which 
apparently nowadays can be calculated at the BUMA/STEMRA website. 
However when you state that you are only using Free works I presume it 
would work and you don't have to pay them anything. Although they would 
probably check this with some suprise visits.

> 
>> 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.
> 
> Like I ask above, would this apply if I was not playing any music which they 
> had contracts for?
>> If you demand payment for the royalties on your CC music, just as
>> would've been done with CS music, 
> 
> First, can I even do this, or do the laws in those countries prevent anyone 
> but the collecting societies from collecting?


I belief I answered this in this email to the cc-licenses list, see
http://lists.ibiblio.org/pipermail/cc-licenses/2007-January/004829.html

> 
>> 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.
> 
> Could you sue the collecting society for your share of the money? I wonder? Or 
> would hte laws prevent that?

See
http://lists.ibiblio.org/pipermail/cc-licenses/2007-January/004829.html

>> 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.
>>> Yet.
>>>
>>>> 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
>>>> they shouldn't.
>>> 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.

<snip>

>>>> 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
>> all*.
> 
> And my point is that I don't share that overall concern. If the solution 
> arrived at benefits every user of CC licenses except those that choose to use 
> BY and BY-Sa licenses, then personally, I don't mind if the problem remains. 
> Now, if the problem can be sorted in such a way as to benefit everyone using 
> CC licenses, all well and good.

Drew, IMHO both are equally important.

I belief that we first need to persuade people and more specifically 
politicians to see that there is a significant group of people not 
benefitting (in any possible way) from the current copyright situation. 
Showing them that there is a growing group of people that would like to 
have more options in between PD and ARR. And that this diversity in 
copyright use is actually 'good' (economically, socially, cultural, 
etc). This would already be an enormous shift in thinking for these people.
In combination with this we need to show them that the current situation 
is not taking that diversity into account and that this needs to change. 
For the better of those using BY, BY-SA but also for those using NC or ND.

>> 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.
> 
> I am not sure that is fully established yet, although that would be my take 
> based on what I have learned so far.
>> 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
>> use.
> 
> Again I ask anyone who knows, would such alternatives even be legal in your 
> country?
>> Any way you approach it though, it's going to be a fairly intractable
>> problem.
> 
> Agreed. These big boys playing with big money seem to like sitting in the cat 
> bird seats.
>>> 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.

Yes, it is a political issue and CC cannot change this, but CC has to
- at least - be aware of this and the fact that this is actually 
witholding CC in EU for musicians. I belief that an alternative can be 
found and actually must be found before we can positively change this 
copyright system and the monopolies of the rights collection societies. 
  If we can create a system which allows musicians to earn royalties 
without the RCS we would have found our 'killer app'.

All the best,

grtz
BjornW






More information about the cc-community mailing list