[Cc-uk] CC going mad?

David M. Berry d.berry at sussex.ac.uk
Wed Jun 22 04:54:20 EDT 2005

I am sure that many of us will have seen the recent celebration of a  
one year old birthday for the 'free culture movement' by Creative  
Commons. Putting aside the presumption that Free Culture 'started' in  
2004, no doubt following the publication of one of Lessig's books, I  
have to admit that I find their way of celebrating grotesque and  

Rather than get a songwriter to create a new song, which could then  
be CC licensed and contribute to free culture. They have... no, you  
won't believe it... licensed 'Happy Birthday' from the Harry Fox  
agency which they have obtained a compulsory license for. Naturally  
this means that they cannot give any rights to the downloaders as the  
copyright is still owned and controlled by the copyright owners. And  
who, you might ask, are the copyright owners? Luckily its those  
extremely hard-up songwriters who struggle to make ends meet --- AOL  
Time Warner (revenue in 2004 $42.8 billion, market cap £84 billion).  
Good to see Creative Commons fighting the good fight.

They are having to pay 8.5 cents a song download in order to pay for  
the license which they then ask us to pay for. So let me just run  
that past you again - to celebrate free culture, and the freedoms it  
transfers to you - creative commons have licensed a closed  
proprietary track which cannot be given any of the freedoms that they  
purport to celebrate. But more than that they transfer all this  
money, that people might assume to be going to a good cause (you can  
even claim a tax rebate on the donation) is instead helping fill the  
coffers of an already hugely wealthy, powerful and pro-copyright  

Who on earth is making these really really stupid decisions? First  
the extremely ethically suspect Bzzz agency ( http:// 
creativecommons.org/weblog/entry/5424 ) and now this. You really have  
to question the motivations of CC, does the management really  
understand what free culture is all about.

Nice call Creative Commons.

– David

Happy Birthday, Free Culture Movement


Just over a year ago, April 23, 2004, at Swarthmore College,  
Swarthmore, PA, more than 100 students met to launch the Free Culture  
Movement. These students had been organized by the Swarthmore  
students who sued Diebold and won after Diebold sent a cease and  
desist letter alleging violations of the Digital Millenium Copyright  
Act to the Swathmore university administrator which then shut down  
their website. A year later, there are nine chapters across the  
country, and more brewing around the world.

Creative Commons wanted to find an appropriate way to celebrate. So  
we put together this version of "Happy Birthday," sung by, we might  
say, some of the leaders of the free world (The EFF Staff, Mitch  
Kapor, Dan Gillmor, Brian Behlendorf, Ian Clarke, Jimmy Wales,  
Brewster Kahle, and Gigi Sohn). Of course, to do this, we had to  
license the rights from Harry Fox (who represent Warner Chappell  
Music, the copyright owner of the composition) — yes, "Happy  
Birthday" is still under copyright — but the folks at Harry Fox were  
willing to give us a pretty good deal. Unfortunately, that deal does  
not transfer, so while you're free to download this version and play  
it "for personal use", and free to engage in any "fair use" of the  
song, the rights we have to give don't include much more than that.

This is because clearing rights to use music, under our current  
system of copyright is very complex. You need to clear every element  
you use. So in this recording, Warner's owns the lyrics and the  
composition and we have a limited license to use those & make them  
available to you for your personal use. The loops and sounds are  
owned by a loop distributor and licensed to us under a limited  
license that means we can't make it available to you to remix. But we  
own the rights in the recording in its entirety. We can — and we do —  
license the rights to the recording under a Creative Commons  
Attribution license. But because the nature of music is that the  
recording, the lyrics and the music are inextricably linked, to be  
able to exercise any of your rights in the recording under the  
Creative Commons Attribution license other than for personal or fair  
use, you will need to contact Harry Fox or Warner Chappell Music for  
permission to use the lyrics and composition and PowerFX to use the  
loops and sounds.

Alas, them's the breaks for free culture for now. Maybe if the Free  
Culture Movement is successful, things might become a bit less  
complicated. But for the moment, all we can do is wish the students  
of FCM good luck, and ask you to help us help them. We've set up a  
donation box to raise money for the Free Culture Movement. So if you  
download the song, and would like to help, here's where to donate.  
All money collected will be used to support the Free Culture Movement.

Our license from Harry Fox requires that we make the following  
statement: song written by Mildred J. Hill & Patty S. Hill, publisher  
is Warner Chappell Music.

Donate and Download

Our aim is to raise funds to help support the Free Culture Movement.  
But the reality is that we've got to pay 8.5 cents for each download.  
We've therefore set up a governor that restricts the downloads to  
just a portion of the funds raised. Thus, if there are not enough  
donations, you won't be able to download a song (unless you donate).  
More donation and tax information is available.

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