[cc-community] ASCAP VS CREATIVE COMMONS
zotz at 100jamz.com
Sat Jan 6 08:11:42 EST 2007
On Saturday 06 January 2007 05:44 am, Bjorn Wijers wrote:
> 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:
> 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
> > 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
> >> 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?
> >> 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.
> >>>> 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.
Bjorn, like I say, you are entitled to your belief and I am not against
success in those efforts. It is just that if those efforts result in a better
situation for people using NC while leaving those using plain BY-SA or BY no
better off, I do not personally care. That is, it will not benefit me
personally nor will it benefit the cause I am trying to advance. (If it does
benefit the authors of Free works, that is different. Perhaps I am not
expressing myself properly here. I am trying though.)
> >> 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.
See, I tried to explain this earlier right above here.
> 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.
So, could an EU musician join ASCAP or BMI instead of their "local" collection
society and have ASCAP or BMI collect for them in a non-exclusive manner? Or
some new US based collection society set up specifically for copyright but
not ARR works. Does anyone know how the inter-society collections work?
> 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,
all the best,
(da idea man)
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