cc-au music forum
Scot Morris (APRA), Jessica Coates (cc-au), Elliott Bledsoe (cc-au), Frank Rodi (APRA). Not pictured: Paul Draper, Griffith University. More photos of the event.
This afternoon Creative Commons Australia hosted a music industry forum as part of Create World 2007.
The position in Australia is that APRA takes an assignment of the performing rights in the entirety of their members' music, past and future. This technically prevents APRA members from licensing their own music under Creative Commons licences (or any other open content licences)
Interestingly, Scot Morris (APRA) noted that “APRA artists have been releasing music under Creative Commons licences”, and noted that APRA wasn't going to stop people from doing so.
The major source of incompatibility between Creative Commons licences and APRA's blanket licences is that APRA collects for all public performances and communications to the public, while the CC non-commercial licences distinguish between commercial and non-commercial uses.
This leads to a position where APRA would normally collect on, for example, educational uses, whereas a musician who released their song under a CC NonCommercial licence would not be entitled to collect royalties for those classes of performance.
If we can get to a position where we can agree on what types of users are commercial and which are not, we would be closer to solving this problem.
Scot noted that APRA is increasingly able to collect detailed statistics of each song played by its major licensees. With some modifications to their database, they should theoretically be able to exempt agreed non-commercial uses from the tallies.
The real problem here, and what APRA are concerned about, is a possible diminishing of their bargaining power. APRA do not want to be in a position where their licensees can claim discounts on their licence fees (or totally avoid them).
This is the collective bargaining problem - if some artists start to freely licence their music to some users in return for greater distribution, it may have the effect of lowering licence fees.
Luckily, this appears to be a non-issue, because in Australia, the Copyright Tribunal currently sets the licence fees which collecting societies can charge.
Some artists may choose to give away their music to some users for some purposes on a non-remunerated basis. This may or may not weaken the position of the collecting society and the collective bargaining position of artists. This, however, is a much broader issue than Creative Commons licensing.
What we were mainly concerned with this afternoon is not about Artists who want to opt-out of the collective model, but about artists who want to provide some certainty to non-commercial users. Scot Morris noted that neither the record labels nor the collecting societies in Australia were eager to sue non-commercial users. The problem with this implied forbearance is that it provides no certainty to users and future creators. Admittedly, people mostly don't get sued until they are making money - but the threat is still a significant deterrent in many cases. The example that quickly springs to mind is Dean Gray, a (half-Australian) duo who remixed Green Day's American Idiot album, dubbed American Edit on a non-commercial basis, and were quickly ordered to remove it from the web. There are countless other examples.
Clearly, certainty is needed amongst non-commercial creators. Clearly, some artists are interested in providing that certainty through Creative Commons NonCommercial licences. The big problem is that they can't do that and simultaneously have APRA collect for them on their behalf. This is not about reducing the bargaining position of APRA, because non-commercial licensees typically pay a very small fee. It's about transaction costs. APRA are not willing to spend their members' resources to investigate whether a use of a CC-licensed track is commercial or non-commercial.
The problem lies in reducing this transaction cost to a point where it is outweighed by the benefit that non-commercial creators receive by having certainty in their actions.
I believe three things here:
- certainty of non-commercial artists is extremely important - a simple 'understanding' that they 'probably' won't be sued unless they make the big time leaves them far too vulnerable;
- the transaction costs on APRA's side do not have to be so big - if we can agree on which users are entitled to rely on a non-commercial licence, it means one more bit in APRA's database which notes that a particular track has been freely licensed for non-commercial uses, and APRA can simply not collect for those uses. The sampling that APRA has been using since its inception, and which is now much easier with increased technology, can already handle this;
- the transaction costs of non-commercial artists in obtaining certainty is currently far too high, and can be effectively reduced by the provision of standardised licences like the Creative Commons licences.
I have a suspicion that a significant factor influencing APRA's reluctance to more closely examine this issue is that they don't want to consider having to reduce their licence fees to take into account users who use CC-licensed music. This certainly came out today, where the main concern seemed to be that Murdoch and Google would be able to exploit musicians by using Creative Commons licensed music. While this fear may be well founded, it is not relevant to the current discussion - neither Google nor Murdoch are non-commercial users; if we confine our analysis to the people who want to use both APRA and Creative Commons licensing, we are only concerned with the NC users. As long as we have a working definition of 'non-commercial' (something that CC has been working on, but needs finalising), this should be able to work with a minimum of hand-wringing.
In summary:
- If the real problem is the differing interpretations of when a use is commercial or not, lets fix it;
- If, on the other hand, the real concern is about a loss in bargaining power, then that issue is relevant to the broader trend for artists to provide non-renumerated licences, and is not confined, or indeed relevant, to the discussion of non-commercial licences. It's a broader issue which involves convincing artists that it is in their best interest not to provide any non-remunerated licences, in the face of their demonstrated determination to do so.
- Bookmark at
Discussion
[ ed: I've copied Scot's comment from my old site, for context. ]
Hi Nic,
Thanks for your comments about the discussion. There are a few points I would like to clarify.
Adoption of CC licences by APRA members has been cautious While we are aware that a few of our members have attached CC licences to their works it has usually only come to our attention when there is a problem. For example, a Melbourne member contacted us with a claim to collect royalties from the US for a subscription music download service. We looked at the site and the member’s works, and noted that there was a CC licence attached that purported to give away all rights of remuneration in the work for the duration of copyright. When we contacted the member again advising him of this, he was unaware of the consequences of his action - he said that when he uploaded the works a pop up screen asked him if he wanted to “licence” the works and he agreed. This was an example that lead us to suggest that writers should seek legal advice before entering into licence agreements of any kind. We are keen to ensure that creators are educated about the effects of any licences they grant. To date there have only been a handful of members inquiring about CC licensing.
Existing CC guidelines on “non-commercial use” I note your view of the purpose of the discussion was to provide certainty to non-commercial users. This was not our perception of the objective of the meeting, although it is, hopefully, an outcome of the current discussions which are just commencing. CC had asked us to provide a starting point for discussions on the pilot licensing venture between the Dutch society and Creative Commons to see if collecting societies in general can accommodate members giving away non-commercial rights under CC non-commercial licences. While Mia Garlick of CC has to date drafted some CC “Guidelines for Non-commercial Use”, regrettably these are not acceptable to the majority of our membership nor the millions of creators we represent around the world. The issue of the Dean Gray album is way outside the scope of APRA’s mandate – we don’t purport to speak for record labels, much less US record labels. In the discussion, I did however give an example of how we administer commercial rights of works incorporating numerous samples on behalf of all the relevant musical work rightsowners.
Assignment of performing rights to APRA In your summary, you mention APRA’s “position” is an assignment of performing rights. For those who weren’t at the discussion, it is worthwhile pointing out that this is the situation for societies in practically all territories other than the US. it’s worth bearing in mind that CC was a US initiative crafted to US law and practice and hence there has been some difficulty in adapting these licences to other countries. The assignment of rights arrangements we have in place are for enforcement purposes. While you acknowledge the issue we raised of transaction costs in blanket licensing, the more important issue for individual composers is enforcement costs. APRA’s role in identifying usage, negotiating tariffs and collecting and distributing licence fees is enabled by the existence of these input arrangements. We have to have exclusive rights to be able to take legal action. The assignment of rights enables us to prove chain of title, actual infringement of works in our repertoire and to enforce the judgment. This is why the international system of collective management evolved in the first place.
CC seems to be saying with respect to non-commercial licences that these will provide a mechanism for commercial users to contact the rightsowner(s) and negotiate terms of use. Given our experience in dealing with users, we think this is a naïve conclusion/expectation. We have observed that when commercial users think some of their business inputs may be obtained for free, they pursue these avenues vigorously. Take the recent Virgin Mobile/flikkr case, for example.
We are also aware of the confusion in the marketplace due to the apparent availability of CC licensed materials. Where the commercial user may be in breach of the CC non-commercial licence it falls to the creator or their representative to take legal action, as CC has been very quick to exclude all responsibility in this area.
Collaboration between APRA and CC will focus on correcting incompatibilities between our licences APRA is keen to work with CC to resolve the incompatibility between our respective licence schemes. This collaboration is being done at an international level through a CISAC working group and in the BUMA STEMRA / CC pilot in the Netherlands. APRA does already distinguish between types of public performances in its licensing and I encourage you to read the High Court Judgments in APRA v Telstra which give a history of how the courts have determined which uses are remunerable. There are examples of where APRA does not collect fees for public performances, eg music performed in any kind of religious worship.
All our efforts are about creating certainty in the marketplace, however our approach is more about the type of use rather than the type of user. The examples raised in the recent CC discussion forum, eg the use of background music by Greenpeace or a concert performance at a school where an entrance fee is charged, would still be uses that the majority of our members would consider licensable (in the sense of collecting remuneration).
In those cases, however, the licence fees are very small and therefore the transaction and enforcement costs could render it uneconomic to monitor all of the works used and to analyse their chain of title – it would definitely not be as easy as you suggest in your summary. Jessica and Elliot came to our offices yesterday to gain a better understanding of the IT and other resources required to administer blanket licences with tens of thousands of users for a million composers and millions of works – I hope they now have an appreciation of the complexity and scope of our systems and of the reasons why making changes such as the ones discussed at the CC Forum is no simple feat. We also discussed APRA’s existing complimentary licences as a starting point for further discussion.
I am glad you recognise that Murdoch and Google are commercial users, and we are very cognisant of ensuring the drafting of the definition and any consequent licence back will take into account the changing value chains and types of use of music in the on-line environment.
Thank you for providing the opportunity to review your thoughts and perspectives on the Forum. We look forward to working with CCau and CISAC on licensing solutions that will enable us to work together for the benefit of all of music creators.
Scot Morris Director of International Relations