Development of the Creative Commons Sampling license (or license option)

[JJ Duggan <s0459752 AT sms.ed.ac.uk>]

----- Forwarded message from s0459752 AT sms.ed.ac.uk -----
    Date: Wed, 17 Aug 2005 15:01:58 +0100
    From: JJ Duggan <s0459752 AT sms.ed.ac.uk>
Reply-To: JJ Duggan <s0459752 AT sms.ed.ac.uk>
 Subject: Re: [cc-sampling] Future of CC music licenses?
      To: Christopher Randall <chris AT positronrecords.com>

Hi Chris,

thanks for taking the time to answer those somewhat troublesome questions! 
I’ve
added some clarification and some extra thoughts:

>> 1. Who are CC licenses (Sampling, Sampling plus, Non-commercial
>> Sampling plus &
>> Music sharing license) aimed at:
>>
>> (a)  Musicians: Amateur or professional, composer or performer?
>> (b)  Publishers: dedicated publishers, small or major record labels?
>
> The CC Sampling twins, in my opinion, are aimed at amateurs and indie
> musicians for the most part, people that self-release albums. To a
> lesser extent, they are for independent record labels, and
> specifically "net labels."

I agree with you here, in that it is mainly independant labels and
self-release musicians who are attracted by these licenses. But some big-time
musicians have released under CC licenses, e.g. Beastie Boys. This could be
just for the possible street credibility, but maybe there some cases where big
time acts are interested in open CC licensing. After all, they can still make
their millions....

> They have nothing to do with live performance or publishing, of course.

As I understand it, the CC twins do affect performance & publishing, in so far
as they allow non-commercial performance and distribution (but not commercial
uses):

See: http://creativecommons.org/licenses/sampling+/1.0/legalcode

> Non-commercial Sampling+ doesn't really have a bearing in this
> conversation, as it isn't, in my opinion, a license with much of a
> purpose. It's there, you know, just in case.

Yes - it seems like this license is very restrictive, even from a largely
non-commercial standpoint. If a good faith transformation has been made, then
surely the author should be able to profit, having proved their authorship.

>> 2. What was wrong about music publishing before copyleft style & CC
>> licenses?
>
> I think, judging from this question, that you are confusing
> publishing (mechanical rights) with master use rights.

Sorry, I meant publishing in the greater sense: making music available for
consumption via licenses and institutions or media.

What I was getting at is: what problems were/are being addresses by CCSL?

> The main problems with the System involve master use rights, and
> these particular CC licenses directly relate to that.

Understood. The sampling licenses - hence the names – are targeted
specifically at facilitating sampling or appropriative, but transformative 
art.

However, they do appear to intentionally affect how consumers can
access music, even when they don’t intend on remixing the material. This 
causes
me to think that the illegality of non-commercial sharing (under copyright) is
also perceived to be a major part of the problem.

> Part of the issue at hand is that a song itself is a different entity
> than a recording of that song.

Got you.

>  As long as the songwriter and the artist that records the song are
> the same person, a CC Sampling license is in good shape, but when you
> get in to the big leagues, where a songwriter and performer are
> usually not the same person (as in almost all R&B and most pop music,
> and 99.999999% of major-label country music) CC Sampling licenses are
> singularly unworkable.

Good point. If a songwriter (big-time or otherwise) is not ‘interested’ in the
CC licensing approach, it causes real problems for a performer wanting use
their material under a CC Sampling License… this makes me ask why songwriters
are not interested in CC style licenses... Any ideas?

A possible exception to this rule might be where a songwriter wants to
encourage overall use of their material by granting non-commercial use, while
keeping the right to earn royalties when or if they are generated, thus
benefiting in both situations. In this way, the CC Sampling licenses offer
similar alternatives/benefits to the songwriter as they do to the self-release
performer/songwriter. Perhaps this possibility decreases in proportion to the
songwriters reputation – the higher the reputation, the more pronounced the
expectation that income will be generated, causing the artist to rely more
heavily on copyright and royalty collection. But the CC sampling and music
licenses should also allow big-time songwriters to profit in the usual
manner…..


> We won't put out albums in which our artists have performed covers
> any more, because there's simply no mechanism by which we can release
> an album where 9 songs are Sampling+ but one has the master use
> (recording – I think?) under Sampling+ and the music/lyrics     >
> under normal copyright. I can't, of course, give away something I
> don't own so my solution was to not let our artists do it.

If permission to cover a song is requested and granted, could master uses and
music/lyrics be licensed separately? This approach could be useful in
other 3rd party use scenarios like those discussed previously in the forum.

> This has saved me several checks to Harry Fox in the process, and
> that makes me happy, so the point goes to Sampling+ in that regard.
> By cutting down on gratuitous covers, it also saves me a lot of time
> explaining to an artist why it isn't a good idea to open their album
> of originals with a Pink Floyd track, then ultimately losing the
> argument.
>
> (See http://www.positronrecords.com/releases/release.php?id=posi015
> for reference, one of our non-CC releases. Two covers on an 8-track
> album? It's a wonder I don't have bleeding ulcers.)

Too right. Harry Fox is to be avoided at all costs!

>> 3. How do CC licenses offer a solution to publishing?
>
> Your question here is not clear. Publishing is one thing. Releasing
> an album under a CC Sampling+ license means that the master use
> rights-holder has relaxed some of his/her rights. It doesn't affect
> the mechanical rights which are the songwriter's to administer as he
> sees fit. ("Publish" is the term for that.)

Yes, here my question is badly worded. What I wanted to convey with the
question was that CC imply that licensing/distribution, therefore production &
consumption in music were in some way problematic.

As before, I do think the CC licenses affect mechanical rights in the
non-commercial sense, although the songwriter remains at liberty to administer
commercial uses of their material.

> Picture this: a band records a song and releases it under a Sampling+
> license. The person that wrote the song leaves the band. Another band
> samples that track in their Big Hit Single. The person that wrote the
> original song sues the second band for copyright violation because
> they're using his melody and lyrics.
>
> It's a confusing thing, and requires a certain amount of faith on
> everyone's part.

So, while the sampling+ license encourages derivatives of expressions i.e. the
sampling of songs, it doesn’t encourage derivatives of ideas i.e. a songs
melodic or rhythmic components. This is an interesting situation, I wonder was
this intentional? Surely the idea of a derivative is to be encouraged in spite
of the method, as the method changes over time…

>> 4. How will people know about alternative licenses such as CC?
>
> Any musician that doesn't take the time to educate themselves about
> mechanical, master use, and performance rights before they even call
> themselves such deserves what they get in my book. It's like someone
> calling themselves a lawyer before they go to law school. The
> information is readily available for normal copyright and CC from any
> number of sources. I will say that in order to understand and utilize
> the Sampling and Sampling+ licenses, you have to understand "real"
> copyright in the first place. You can't do it wrong until you know
> how to do it right, if you get my drift.

I agree, but I can understand why musicians are daunted by the licensing
process. I think CC has a lot to offer through its simplicity, but yes, you’ve
got to understand copyright before you can attempt to use it unconventionally.

But I’m concerned that its only computer/internet savvies who know about these
kinds of license strategies. For instance, I went to a music industry
convention in the UK, which was a forum for all those concerned with the
industry, from artists to label executives to royalty collectors. Intellectual
Property was of course high on the agenda, there were debates about the p2p
wars etc. but not a mention of CC or anything similar. Their utility was not
discussed, their existence was not even acknowledged. I studied Music 
Technology
at third level, and once again there was a complete avoidance of the
topic.

To sum up, I feel that it is unclear how CC licenses will spread through many
nodes of our musical networks. Any ideas?

>> 5. What about the transition from copyright to copyleft licensing:
>>
>> (a)  At what rate is this happening; estimated timeline?
>
> Now, as Mike noted, the Sampling+ license we use is not a "copyleft"
> license. It's just a legal way of saying "hey, I own this shit, but
> it's okay if you use a chunk in your own music, because I'm cool like
> that, as long as you give me my props." I'll address the spirit of
> your question, though.

Fair enough, I’m using copyleft to describe any form of standardised
alternative license….. not sharalike. Whoops!

> For our label, the transition took about 3 days. We decided we were
> going to do it, I talked to all our artists and my attorney, and the
> next album coming out we changed the legal lines in the cover art to
> reflect it. Not much more to it than that.

> Assuming you actually mean the industry at large, the answer is
> "never." There will be a certain percentage of indies that make the
> Switch. No majors will, ever. Don't forget that all 5 (is it 4 this
> week?) major labels also own movie and television production
> companies. A large part of the US copyright code is dedicated to the
> interaction between music and motion picture. They won't be shitting
> in the trough they eat from.

I am very interested in how the industry-at-large treat alternative licenses
like these. I can see why you reckon they will never adopt: the copyright code
is written for them, why subvert it?

But when you look at open licensing in software development, you can see how 
the
industry-at-large jumped on the bandwagon, supporting a ‘less
restrictive’ form of open licensing. Whether this was for genuine reasons , or
purely for PR is hard to say, but this way, they adopted some aspects of the
developmental modal, while rejecting the aspects that were restrictive to 
them.

If we consider the CC sampling licenses as a new modal to encourage
creativity, I think the industry would have something to gain, or at least
nothing to loose. But when we consider the idealogical spirit of the license:
the anti-advertising issue for example, it is possible to see why the larger
industry turn and run.


> (b)   How is (can) this transition influenced? (licenses themselves & 
> license
>> developers, musicians & consumers)
>
> That I can't help you with. Logic doesn't play a part in this. It's a
> matter of a musician and a label agreeing (with each other, and
> that's the important thing to note) that it's okay for other people
> that are outside their sphere of control taking a hand in the
> creative process. But it's more than that: it's really that musician
> and his/her label saying "you know what? It's okay if someone else
> tries to make a bit of money off this without me getting a cut." And
> I hate to come off like a cynical motherfucker, but I've been in this
> business long enough to know that simply will not happen for the vast
> majority of the industry.

Yes, the industry is based around getting a cut, and that’s important. As we
know, CC licenses can still facilitate getting this cut. But they also promote
free uses of material and resources while the industry actively tries
to create new ways to get more cuts. I think this is a real point of departure
between creative producers/consumers, and the industry that grows around them.

> Now that I've got that out of the way, don't take this wrong, but
> your research project is going to suffer a bit from the fact that,
> judging from your questions, you don't understand the difference
> between mechanical rights and master use rights. Publishing a song
> and releasing a recording are two very different things. If I were
> you, I'd do a bit of reading on this subject. Don't feel bad, though.
> Most people have no idea that ASCAP and the RIAA aren't the same
> thing.
>
> Chris Randall
> Positron! Records, Inc.
> http://www.positronrecords.com

Thanks again for the very constructive criticisms, and sorry for the
vagueness. It is interesting for me to hear your opinion because you’ve made 
the
crossover from conventional copyright to CC licensing. Many other labels that
use CC or similar licenses are predisposed to the associated rationale, so I
draw a lot from your opinions. I know it takes along time to type-answer
questions like this, so cheers!

Regards,
Jonee Duggan.






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