Creative Commons – Reservations over “some rights reserved”
The following transcript is exhaustive. Such was the level of impassioned debate, it was deemed important that this was reported in full. The following index is provided to aid quick navigation.
2. PANEL RESPONSE
3. Q & A
[More accustomed to making presentations with the aid of video and audio, Paula presented a brief keynote]
It’s exciting to be in a room with people who actually have different views.
More often than not, I’ve recently been speaking to people who agree with me and it’s incredibly boring ? like speaking in an echo chamber. So I’m excited because I feel there will be people who don’t agree with me here tonight!
I’m not a lawyer. I’m not an expert in legal systems, nor am I an expert on the music industry, and frankly, a week into my new role, I’m not an expert on Creative Commons (CC).
What I am, however, is a tool builder. For most of my career I have been building and providing tools for the digital arena. When I started as Director of Creative Commons International last week, what I was really doing was accepting the role to continue in that tradition of tool provision, and it is in that context that I’m really pleased to be part of the discussion this evening.
Like all good providers of tools, I’m very interested that those tools are appropriate to the people using them. I understand that this audience of music industry experts will be able to encourage a discussion that helps place the CC licenses in the toolkit of your section of the creative industries.
I started out by saying that my talk would be brief, and because of that I’m going to stick to talking about tools, so bear with me while I stretch the analogy ? probably to breaking point.
It’s disingenuous to posit that I am simply a tool-builder, with the implication that this is somehow an objective role, without assumptions or bias. While the first hammer was created in response to a need, it also assumed that the world contained materials that required hammers, that nail guns were not yet invented, and that construction was carried out by people with large hands and strong arms. In other words, the tool-builders made assumptions (I’m sorry about the building analogies ? I’m a builder’s kid).
CC licenses are no different, they are a toolkit. They are and were being created in response to a need, a need that has emerged because of the unprecedented opportunities for cultural exchange and access, creative collaboration and linking with communities of interest, all afforded by the Internet. The need that has emerged is for a legal framework that allows for the greater flexibility required in order to realise these opportunities.
However CC licenses are also based on assumptions. They assume that these are indeed opportunities, that collaboration, that sharing, creativity, innovation, participation, engagement are indeed hallmarks of a healthy, thriving creative domain. CC also assumes that not all creativity can be measured by the same success criteria, that some products of creativity can be measured by commercial success, some by popular success, and some by criteria such as personal satisfaction, peer enjoyment, community reputation and public benefit.
CC also assumes that the creators are the best possible people to decide how they want to contribute to that creative domain, and the measures that they will use to judge success. In other words, we assume that creators will use the tools that best fit their creative goals. Finally CC created the licenses under the assumption that the existing tools were either not working, or simply didn’t exist.
So far those assumptions seem to be born out by the success of CC thus far. Yahoo! Has just announced that there are more than 12 million pages of CC material in its index; there are more than 70 countries in the process of putting the licenses into their languages and jurisdictions. Major media players like the BBC are crediting CC with contributing to the thinking behind significant projects like the Creative Archive.
The very fact that Yahoo! has recently added a specific search for CC-licensed material points to the growing consumer interest in sourcing materials to inspire and fuel their own creativity and innovation.
It’s not just been the licenses that have ensured this interest in CC. As copyright and other intellectual property law becomes increasingly the subject for mainstream conversation, CC has emerged as a key educator ? particularly in the realm of copyright. For the first time many creators are encountering a simple mechanism that allows them to understand both the rights afforded to them through copyright law, and consider the implications of reserving or releasing some elements of those rights.
CC has also worked hard on developing software tools that allow creators that wish to, to participate more fully in the new digital creative domain. CC has developed an easy to use publishing tool that allows creators to publish and store their creative products for free with partners such as the Internet archive. CC has also both developed and encouraged the development of attribution-based sharing environments such as CC Mixter ( www.ccmixter.org ), where the lineage of sourced materials is laid bare, which offers fantastic opportunities for remixing and the discovery of new material.
In conclusion, while it is clear that CC operates in a particular worldview, it is one that works in accord with existing legal frameworks, it is intended that CC licenses and tools provide a space between ?all rights reserved’ and public domain – that it allows creators to have a more nuanced set of tools through which they can participate in the creative domain.
(EP – British Music Rights)
First thing I want to say is that we are not theologically opposed in the music industry to CC. There is a place for CC, which is demonstrated by the 12 million pages on Yahoo! The question is really whether it is appropriate for the music industry, and we are going to hear from a couple of other speakers who are going to talk about how they are using CC within a music industry context.
Magnatune are not represented here, but I think their use of CC is quite interesting in that what they’re doing is using it to test the market ? they’re putting out low quality recordings on a non-commercial CC license and if it becomes popular, they then invest in making a higher quality recording, and in marketing and PR and everything else, to make the recording a commercial success. I think that’s a useful way to use the CC tool.
If we just look at them on their own, there is really one issue that we take with the CC licenses, and here I’m talking as a representative of writers and composers. These licenses are irrevocable, and they last for the duration of copyright, so basically if you are a songwriter who is just starting out and you don’t know much about copyright but you think CC sounds like a good way to get your work heard, you go onto the CC website, sign up to the first license that you see, and basically give away your rights in perpetuity. There’s no information on the CC website that actually tells you that that’s what you’re doing.
For us, it’s really that single issue. Why do these licenses have to ask for the duration of copyright, and why is there nothing on the website to actually inform creators that by entering into a CC license they are signing their rights away?
There is something called the Human Readable Summary of the licenses on the website, and that is supposed to be a summary of the main provisions of the license, which is meant to be accessible to lay people, people who are not lawyers. That doesn’t say anywhere that the licenses are irrevocable, and I think that is a major failing.
Just to go back to the particular position of writers, and compare them to Magnatune. In music, for those of you who are not familiar with the music industry, there are two different rights in a sound recording; the rights in the actual recording, and rights in the musical work or composition that underlies that. These are two very separate rights.
Writers don’t have rights in the sound recording, they only have them in the musical work, so if you take Magantune as the example, again, because they are using it to test the market, they are putting out a low quality recording, seeing if it works, and then they are rerecording, and in the new recording they still have all the rights.
That model doesn’t really work for writers, you’ve written a song and put it out on a CC license ? the rights in that song have gone. It’s a bit harder to write a really shoddy version of a song and then rewrite it better, it doesn’t really work. So CC as a tool doesn’t really work for writers, which should be made clear on the website.
There are two things I would ask the CC team to do. The first is to look into the issue of irrevocable licenses, and the other one is to put almost a public health warning on the site telling songwriters that they might want to consult a lawyer before signing.
(NL – Fading Ways Records)
I have a label based in Canada, and that label hasn’t become a CC label, it’s still our label. We haven’t given anything away; neither have our writers. We are simply using the CC non-commercial license to get people to hear the work, and then decide whether or not they want to purchase that record.
It’s a fairly complex issue, and I’m probably going to refer to some of what Emma said to refute a couple of criticisms that I don’t think are accurate at all.
The point was made about Magnatune ? that they are offering low quality recordings as a tester. On the Internet you are usually talking about MP3s, which are lower quality recordings, but so are most pirated versions of records online.
I also hear people mention the irrevocability of the licenses a lot. There’s nothing wrong with that, if all you are allowing for is non-commercial usage ? home taping rights are there irrevocably ? you are not damaging yourself at any point as a writer or as an artist by granting your public the right to non-commercially distribute your work. Your commercial rights under that particular CC license remain completely unaffected.
I think a lot of things that you may have heard in the British press, especially Music Week is what I would call painting with a broad brush, especially coming from lawyers who should have read the fine print of these licenses and know what they are talking about before contributing an article to a magazine.
There’s not just one CC license, there are many that informed artists and writers can choose from in order to get their work out there and empower their careers. If you choose a non-commercial license there is no way that anyone else is going to be making money from your work ? that right remains exclusively with you.
With regards to educating the public I think it’s unfair to say that CC should have a warning label. I think CC is one of the few sites on the Internet right now that tells an aspiring songwriter or artist what copyright means. You certainly don’t get told in lay terms what copyright means at PRS or British Music Rights.
It’s interesting that CC choose to have the three different language licenses, the lawyer readable, human readable and machine readable. I think that’s very helpful and is a warning label. I think it says, ?Don’t sign anything after speaking to a music lawyer, because chances are a music lawyer is going to be signing you to a really shitty publishing deal that you don’t need, and that really is a gamble?.
To finish, Fading Ways started using CC licenses in Canada to promote our roster. We’ve got 40 release titles distributed in 14 countries, and we are a small label that’s growing fast, and we’ve seen our sales increase as a result of CC and our share-sampler series. That’s a promotional series that is distributed for free, or at cost price to our fans and street team members who can then copy that music and share it either on P2P networks or in person without fear of legal repercussions from the IFPI and the RIAA.
As I said to the Canadian version of the RIAA ? CRIAA ? at a University of Toronto conference recently, one of the reasons we started using CC licenses was to protect our fans from their lawyers, because we feel that fans should be able to home-tape and make CDRs and to enjoy the music that they buy.
To me that’s sort of a human right, to have that played about with at WIPO, and with the IP enforcement directive coming from the European Parliament, (introduced by a French MEP who is married to the head of Vivendi Universal), isn’t good. That’s one of the reasons why Fading Ways adopted the CC licenses, and it’s working great ? our artists are earning more, the label’s doing better and ?All hail Creative Commons!’
As I see so many music industry lawyers present I think we could be in for an interesting evening.
(FN – PPL/VPL)
I might be a bit unusual about all this, for which I make no apologies; I’ve always been happy in my own skin and I say what I say. Firstly in terms of the CC, I completely agree with what Emma said to start with ? that there is nothing inherently wrong with someone, whether they be a professor of law or a member of public coming up with a new concept. We’ve had new concepts before, we have them now and we will have them in the future.
I think without being neither rude nor dismissive, all of us collectively attach a bit more importance to CC than it warrants or deserves frankly. It is not anything wholly revolutionary, and there is one particular myth which I would like to explode, which is this:
CC started off on the premise promoted by Professor Lessig, initially of course, that somehow copyright stands in the way of various things. That it stands in the way of progress, and that it’s outdated; all of which is a lot of nonsense, and I’ll tell you why ? again choosing my words carefully, I know we have some representatives from the media here.
The problem is when a learned professor who is brilliantly intelligent in many different ways says something – we’ve seen it in economics, the music industry, culture and industry. When you live in that rarefied environment, always supported by public funds, and you work and you think from the comfort of luxurious rooms and facilities funded by the state or local authorities, that’s all good, because we need thinkers who think out of the box.
But those individuals, however brilliant and intelligent and far-sighted in some respects, tend to forget the real world. In this particular context I’m thinking of real musicians and songwriters, and also people who invest in their talent ? profit is not a dirty word, it keeps us all in employment. Whether it’s the music industry or other industries, the fact that someone is successful and makes a commercially valid partnership and out of that partnership grow exciting creative works or patents, inventions and designs – that’s all fantastic for society and for our well-being and economic prosperity.
For a musician, whatever they do, nothing of this is esoteric, because it is their livelihood and their future, and they do have the right not to be bullied or driven into some sort of dictatorship of a new concept, where irrevocably you have to do something. Not wanting to be too flippant about this, but I don’t get too excited about the irrevocable part of it at all, because frankly ? and the lawyers will tell us one way or the other ? especially in a personal context it is almost always unenforceable in any event.
So let us just bear that in mind before we get excited about the ?irrevocable’ word, because when challenged, and when impacting upon someone’s economic ability to earn a living in a reasonable way, it would be challenged and I have to say I don’t think it would prevail, but we digress.
Another thing that I would like to say is that to promote it as a business model is a complete nonsense. It is not a business model, and the problem I have with so-called ?new business models’, (and it has been said time and time again over the last few years that the music industry has to find ?new business models’), is that frankly, it’s normally jargon for expecting things for free.
I am a simple man, I would not expect anyone, nor indeed is anybody saying to Lord Sainsbury, or Mr Tesco that we should all be entitled to free cauliflower, or Marmite or cornflakes. I expect to have to pay ? we all have to pay our way in life. Why on earth should it be assumed that music should be for free? Why, when it is somebody else’s livelihood and passion?
I’m not just preaching from a theoretical point of view. In my previous life, before I joined the record industry some years ago, let alone before running PPL and VPL, I was a classical violinist, so this is very close to my heart, and I can tell you that the vast majority of musicians do not perform and rehearse and spend thousands of hours perfecting their art for the money. Some of them become immensely successful, just like JK Rowling who was a single mother some years ago with virtually nothing. But because she had talent, and because there was something called copyright giving her an opportunity to succeed, she became very famous and immensely successful and immensely rich. We should not resent that; we should applaud her.
Similarly musicians do what they do out of their passion for it, not because they want to become rich. If that happens, it’s a huge bonus. Tens of thousands of musicians, performers and singers earn less than £10,000 per year.
There’s nothing wrong with CC, provided that it doesn’t become another new form of dictatorship because it’s sexy, it’s modern – it seems and feels and sounds like it belongs to the 21 st century. To someone it might be an exciting, intellectually stimulating concept, a bit esoteric, and very interesting; but it is somebody else’s livelihood, future and prosperity and the difference between getting paid or not for, the product of their labours.
Damian, you live in a rarefied environment supported by public funds, do you ever forget the real world?
(DT – Oxford University)
Frequently. I would like everybody in the room to stand up and repeat after me, ?All hail Creative Commons!? Neither I nor anyone else involved in CC as far as I’m aware, have argued for the dictatorship of a concept. We have never argued that this should be considered a business model, neither have we argued that all music should be free. So I’m not going to address those points.
Basically what CC offers is a self-service publishing menu on a website, mainly for people who decide freely that they want to give something away, or they want to take advantage of P2P networks. They might even have a value driven reason for wanting to facilitate this new minority of creativity, which is based on sharing and reusing other people’s work. This is something that they do so freely, and they do so hopefully in a reasonably informed way.
And this is creating new communities who are sharing things that they are interested in, communities of people who want to reuse content in the certain knowledge that they are not breaking the law, and that the people who created the original works are OK with that.
This form of creativity is arguably difficult to do, if you have a competition for new remixes of old songs, you then find out that all the kids who have entered have done so illegally, and you can’t distribute it any further. But what you can do is put in place some of the conditions to enable that minority activity to actually take place in a legal environment, where people have entered into this freely.
If that’s one of the many things that CC can achieve, that’s a very good reason for offering it some support. If you want to reuse or redistribute content, the content comes tagged with icons that tell you what the original creators are OK with you doing, so you can choose to be attributed, whether or not to enable derivative works and a number of other options, although we only have a limited number in the UK adjusted for UK law, available so far.
When I explain this to people, particularly people who are worried that online distribution is getting rid of their business model, they tend to go through a number of stages.
At first they think it is some kind of legalised communist plot to allow piracy and should be killed off immediately. I’m really pleased that the panel that has been put together today didn’t in the main fall into that trap. Then people begin to engage with it and see that it is just one option among many for authors to choose from, and if they want to sell their work, this is not what they should be doing.
There are detailed questions about whether they can use this as a form of viral marketing, similar to giving away a CD on the front of a newspaper. There are interesting points about whether it’s irrevocable, and how this affects the rights of writers, and whether this is enforceable. There haven’t been any cases yet, but there probably will be. There will probably be cases of people who have asserted that they want to be attributed, and then somebody reuses it without attribution, or someone might say no commercial use, or no derivative works and those terms are breached ? that probably will happen.
In terms of writers, I’m not sure, Emma, that your objection can’t be dealt with. If you are a writer and you want your piece of music to be protected, you can say no derivative work, which could cover a new musical arrangement. So in the menu of CC options, that is arguably in there, and if it’s not clear enough, it’s something that we will look at for version 1.2, and I’m happy to do that.
As to whether there should be a health warning, we want to encourage people to use this, and we don’t really want to fuel any sense of paranoia. I’m very pleased that people from the music industry are engaging a bit more than they had been doing. I’m not going to advise people when they visit the CC website not to use it, but if there are ways in which we can inform people about the consequences of what they are doing, that’s a discussion we can have.
(PLD – CC International))
I still think there is a remarkable amount of accord on this issue; fundamentally we’ve had everybody on the panel say that there’s nothing wrong with the CC licenses, and we need to help creators ? musicians in this case ? understand the decisions that they make around their creative products. We don’t seem to be differing on that point whatsoever; I take issue with CC not informing people of those consequences. If anyone has been to the CC website, it is awash with as much information as we can possibly provide about helping people understand the legal terms and what they actually mean. What are the consequences of taking on board that legal framework?
If we’ve not actually picked up on particular points we are always keen to hear about that. My response to the music industry is, help us in that educational process. Help us reach out to musicians and help them understand the decisions they are making around their creative products. I don’t see that as being a point of conflict in any way whatsoever.
I also agree with Damian that CC is not advocating that creativity and the products of creativity should be for free, and we have never said that profit is a dirty word. People like John Buckman of Magnatune and Neil Leyton from Fading Ways, and many other creative industry innovators who are trying to find new ways to get creative products out there should be applauded. The models that they are helping us to understand as a creative industry are enormously powerful. CC is simply a small part of that, it is a potential tool that people can draw on to help them engage in new ways with their audiences.
I think we always get into a conversation about specific kinds of creatives ? Emma raised the issue of writers ? and she’s right, it doesn’t make sense, but the releasing of a segment or a sample or even a first single may make sense. I’m not suggesting that this is the way to go, but we need to be careful not to get into ruts of thinking about the ways that creatives might want to change how they reach out to audiences. It’s not for CC to say how these things might work. We are the providers of tools, and it’s our job to make sure that those tools are as usable and functional as they can possibly be; it is for the folks who are using those tools to decide how best they suit their needs.
(FN – PPL/VPL)
I wish you well, and I wish you good luck with the concept. It’s always best to talk not theoretically, but from a practical experience.
As someone who worked for many years in the record industry for a company who, believe it or not, almost always, irrespective of how much freedom the recording agreement actually gave the record company to use sound recordings by any artist in secondary terms, respected an artist’s integrity??
Firstly the artist would always be asked, and I was there. I was the Director of Business Affairs for many years, we never went ahead without them, and if the artist said no, we didn’t do it. The same rule applied if we wanted to use it as a company, or if a third party requested to use it, we would always go to the artist, and if they said no, it was a no. On a good day, we would try to talk them into it, but ultimately if the answer was no ? that was it, we absolutely respected the integrity of the two way relationship, and the fact that the creator must have the right to say no.
That is my key issue with this whole new concept, because frankly when you create, whether it’s a songwriter, a classical music composer, a recording artist, a conductor or a producer you create creations that become almost like your children. I’m not being sentimental, you have personal pride, you are proud of what you have created, and you have passion for it, and you should always have the right for society to ask you, ?Do you want this to be used in this way?’
Let me give you a very specific example. In my years in a record company I dealt with many artists and their managers, lawyers and accountants on a daily basis. Famous people, household names or new bands, it made very little difference, we respected them all in the same way.
There was a very famous US artist that I only once had the pleasure to talk to directly, and he said to me, ?I’m slightly different from the others, and it’s not just because I’m rich, and I am. But the amount of money to me is wholly irrelevant, frankly whether it’s $5,000 or $10,000 or $100,000 I’m not interested.
I created what I created partly for myself, with a record company and a producer, and that’s where it sits. I do not want my creations to be used in any other way. I’m sorry if it makes your life a bit more difficult, but please can you mark the file because I’m not going to change my mind.’ I thought more of him because what he said came from his personal belief and his passion for what he created. The point is, you should be asked, and you should have the right to say yes or no.
(NL – Fading Ways Records)
I think I’d like to thank Fran, because that last sentence summed up what I feel about being passionate as an artist.
I’d also like to share with the room that we are earning more money and selling more records using a non-commercial CC license, and if that’s not meant to be a business model, Damian, I’m sorry but it is now. OK CC is not for profit, but Fading Ways is using the licenses and they are working for us, for our fans and for our street teams. I have not seen, in the ten years that I’ve been in the music business, fans rally behind a movement to the degree that I’ve seen in the last year, and it reflects in the sales ? yes, profit is great.
To hear you say that it’s nonsense for us to be using the CC license is a little hard. Secondly the comparison of digital property with physical property from Tesco or Sainsbury’s or a gas station, like David Baskin from the CMRRA in Canada is very fond of using, is inaccurate. Nobody is taking anything from a store when you make a digital copy of a song, you’re copying without depleting the source of product that the artist can sell. In fact you’re promoting it, because you are letting more people hear it without having to pay radio promoters to go out and promote that stuff. You’re empowering your fans legally to do that for you, for free.
I agree that artists should be allowed to make decisions about what to do with their work too, but many times when you sign with a major publisher, you lose that creative control ? everybody in this room knows that that’s true, but with CC you do not lose anything. I hear people say that with CC you are giving your music away for free, but it’s not true. It’s either a huge misunderstanding, or a smear campaign against these licenses.
(EP – British Music Rights)
I just want to reiterate that this is all about choice, and if people want to use CC, if Neil wants to use CC in his business model that’s absolutely fine and nobody has any objection to that. Damian said hopefully the choice is informed, and I think that’s something I very much agree with. There may be some information on the CC website about copyright more generally, but when I went onto the site, all I could see was information that was very much geared to telling the users what they could do. There was really nothing at all telling the creator what they were giving away ? there is a real focus on the users and a complete absence of information for the creators. I’d just like to reiterate that as well.
The other thing is that on the website, if you go onto it, the default setting is for a commercial license where you are giving away all of your rights. You actually have to click onto the non-commercial or the no-derivs options to get those. If you are a little slap dash you are going to get a full attribution-only CC license where you are giving away the commercial rights as well as the non-commercial ones. I think that’s something else that really should be addressed.
Personally I can’t understand why any writer, even if they are a complete amateur, would put their work onto the Internet saying, ?You can make money out of this, and I don’t want to have any.’ That seems to me to be absolute craziness, the non-commercial licenses are, I suppose, a step down from that, but even then there are issues.
How do you actually determine what non-commercial use is? And how do you stop non-commercial use from infringing on your commercial business model. I think that there’s a whole debate that needs to be had there.
I think one of the advantages of the traditional copyright system is that it obliges people who are wanting to sample other people’s work to get in touch with the original creator and say, ?do you mind?’ It’s a matter of courtesy as much as anything else, but through that contact between the original creator and the person who wants to sample is how you get creative collaboration.
It’s not just by letting this thing go completely out into the open with no controls so everybody can individually take buts and make their own thing ? that’s not collaboration, that’s a lot of users who are just making their own things in isolation. I don’t think that that’s really the kind of creative community that the music industry is based on.
I think that Neil touched on the problem here, and that is that CC is a movement, and the trouble with movements is that people get swept along without actually knowing what they are moving towards. A lot of the publicity surrounding CC suggests that it is a movement allied to P2P, but it has wider implications as CC itself caters for wider uses.
[Tom Frederick ? The Simkins Partnership]
I got a sense in the first half that there are two extremes. One side says that you are giving everything away and the other says there’s no room for ever giving anything else away.
Going back to the cauliflower analogy, Tesco couldn’t sell a cauliflower and say that you can only boil this cauliflower, but that’s what we say with music, and Neil was mentioning that CC allows for private copying, so I could then copy my CDs onto my iPod without actually breaking the law.
(FN) That’s a slightly surprising comment if I may say so, because I’m very familiar with your law firm, having dealt with many of your partners over many years’ time ? and an excellent law firm it is.
I am now speaking on behalf of the creators in the performing community.
You know and I know that over decades, artists time and time again ? many of them your clients ? fought long and hard and successfully against the free-for-all environment. In other words, people boiling their music every which way they choose.
That’s the last thing that any serious artist or singer or musician would ever want to see. And frankly I think your comment is slightly frivolous if I may say so, and perhaps we should move very quickly away from comparing music to cauliflower that you can boil any way you like, I don’t think your clients would appreciate that.
(NL) There are many artists, David Bowie being one of them, that do like people boiling their vegetables, whether it’s cauliflower or any other vegetable.
(KH) I think the sooner we move away from this analogy the better!
I’ve very much enjoyed the discussion, and I’m glad that it hasn’t ended up as ?he said, she said’ with one side as good and the other as bad ? to have a conversation is interesting. I have two questions, first who funds CC?
PLD At the moment it is funded by a series of American foundations. In the past it has been the Hewlett Foundation, it is a separate foundation but it originally came out of Hewlett Packard.
DT In the UK we are a zero budget project. Everything that has been done, including the work by the lawyers who designed the license for the UK, and all the promotional work has been done by volunteers, students and people who think there is a reason to give their time to something like this ? everyone from Lord Justice Jacobs down to a few students and interns who help out with the website, but I do think it’s a relevant point.
Yes, Damian, but I was more interested in who funded the initial idea, and who continues to fund it. Are you working on a free basis?
PLD No, I’m an employee of CC. What I can tell you is that all of the contributing funders are listed on the website.
Is CC registered as a trademark, and would you have any objections to me setting up and trading under the name CC?
PLD I believe it is registered, and there is an extremely robust conversation going on at the moment about the nature of the mark, and how it is to be used.
So you’re not using a CC license in relation to the name?
PLD Not at the moment. But it should be noted that CC operates within the copyright framework, not the trademark framework, which are quite separate parts of intellectual property law.
NL If that was the case, then we couldn’t use the licenses because we couldn’t copy the logo and put it on our CDs.
DT Under the terms of the license you are obliged to carry the brand on your work.
[Patrick Rackow ? Steeles Solicitors]
I’m a music lawyer; I’m also on the board of the British Academy of Composers and Songwriters, and I’d like to make two points. One is really to reiterate the main concern that Emma bought up ? my main concern with CC is not the fact of CC, it’s the fact tha,t to quote Jane Austen, ?it’s badly done’.
I’ve been a lawyer in a private practice for longer than I care to remember, and a lot of my clients, even after I have tried to explain it to them, do not understand that in a piece of recorded music there are two copyrights. They create the recorded music ? that’s how they make their living ? but they do not understand it.
There is an argument that says that they don’t need to understand it because they’ve got lawyers and managers, but I don’t subscribe to that. The reality is a lot of the creators out there do not understand what they are dealing with.
Looking at the CC website and going through the agreement, I find very little in there that is going to make them understand. They do not understand what they are giving away. I don’t have a problem with them giving away if they understand what they are doing, but I think there is a very serious problem there.
Although I have some sympathy ? and I didn’t expect to be saying this ? that you don’t want to make the health warnings so big that they scare everyone off, I think you’ve got to do that. You’ve got to make the health warnings large, and in plain language.
DT I’m sorry that I have to leave before the end, because this is very interesting. I’m very grateful to Patrick for suggesting this to his clients as one of the many options.
I haven’t suggested CC ? I’ve simply explained the concept of copyright, which they don’t understand.
DT I’m glad you’ve clarified that, but I would advise you to do so because there are two sides to what’s going on with CC. One is to a certain extent, what you could call a movement, something that is actually trying to build a public domain of material that people can use in a freer way than material that is being protected for commercial use.
Being frank, that could be a threat to the music industry, simply because there is a competition for ears and you want to keep people listening to commercially protected material. I think that if you go to any normative or theoretical level that’s going to be a very difficult argument to win, and I don’t think you will, because you cannot stop the sharing of culture and forms of distribution if people have freely entered into those agreements in a transparent way.
I take your point about transparency, and it’s something that we will look at very seriously.
CC is a movement; we are trying to get people to build up public domain. On the other hand we are doing something technical, which is putting the licenses into various jurisdictions around the world ? 60 countries at the last count ? so this is potentially a global resource. And the two things go hand in hand, the work we are doing legally, and will continue to do as volunteers based at Oxford and elsewhere, and I hope that you will engage with us and make sure that the licenses are appropriate, and that people enter into those licenses in the most appropriate way.
If you try to squash new forms of culture, exchange or community building, it isn’t going to work.
It’s not a question of trying to squash new forms of culture; it’s just making sure people understand what they are doing when they do it.
PLD I think there’s an enormous expectation been placed on CC as part of this conversation ? not only are we going to explain the CC licenses, but also we are going to explain copyright ? and I don’t think that obligation should fall entirely on us, though I agree we need to explain the consequences of the decision an artist takes in using a CC license. That’s not the same as explaining copyright law, which as a non-lawyer is a vast, almost impenetrable world, and as you say, you spend hours with your artists trying to get them to understand it.
Part of the reason that I’m so keen to have conversations like this is that we all need to be helping people to understand copyright.
For many people, whether we like it or not, the arrival of the digital arena now means that they are being confronted with copyright in a very real way, whereas before it was a little more distant, but suddenly they are really having to deal with what they own, and what it means to have a relationship with consumers of their music.
I think we all need to work towards a much better understanding of copyright in the creative industries, and alternative frameworks that exist within copyright, like CC.
I would agree we all need to work towards that because it would be extremely hard for me to say that’s wrong, but I do think there is an onus upon you in providing these agreements, to make it absolutely plain what the creator or copyright owner is doing.
EP Responding to what Damian was saying about this being a movement to build up a body of work that is available for listening to in the public domain and how the music industry needs to embrace that as a concept.
I would just like to say that I think the music industry is embracing that as a concept, and there are plenty of other ways that creative individuals can put their music out onto the Internet without signing a CC license under which they are giving their rights away.
We don’t normally say very nice things about Kazaa in the music industry, but they have a service whereby unsigned artists can put their work up there without a CC license, just using normal copyright law, which enables you to give your work away for free if you want to. If I was in Patrick’s situation and I was advising individual creators what option they should go for ? Kazaa or CC, I would say Kazaa.
There are also others, there’s Peter Gabriel’s movement MUDDA, Universal music has got its own system whereby unsigned acts can put their music online. There are all of these things happening, and our only objection to CC is that you are encouraging people to give away their rights when they do that, which is not in their interests ? if they want to do that fine, but it should be an informed choice.
NL The point is that Kazaa is going the way of Napster. The industry is shutting down unregulated P2P, so how can you say that without a CC license or a similar license the user is protected from being labelled a pirate?
EP Most of the material that is on Kazaa is illegal, because it belongs to someone else.
[From the floor]
The latest version of Kazaa has the option to search for material that has a CC license, and that gives artists a huge opportunity. They are telling people they can download it from Kazaa if they want, but the option is there for them to buy a hard copy if they want to, so the artist will make money from it. It’s perhaps an artist that wouldn’t get on MTV, wouldn’t get on the radio, but is all of a sudden getting in on a whole new way for people to get their music.
What CC does is it actually allow people to exist in this place and one in which they don’t have to turn their fans into pirates by foregoing copyright. It allows their fans access to their music without undermining their ability to make money ? this is a good thing.
[Matthew Shorter ? BBC]
The point was made in the first half about the difference between copyright, and the rights of recorded artists. The distinctions between these are getting less noticeable at present.
Borrowing and imitation have driven music forward for centuries, but where that becomes difficult is when there is a conflation of the music, which used to be a score, and the performance, which is now a recording. Often we don’t have a score any more, and the musical product is a recording.
I think this is why there is now a feeling that traditional copyright law isn’t up to the job of dealing with the new environment ? maybe that’s why CC has arisen ? but I’d like to hear more about the difference between copyright and artist rights.
[From the floor]
As a concept, I think CC works. We’re in a peer-to-peer environment and people have it rammed down their throats that they might be breaching copyright; what they want is to know that they can use something and that nobody is going to sue them.
However the problem that I have, coming from Warner Chappell, a major music publisher, is that the terms of the rights that relate to the song and the writer are not modern, they’re not 21 st Century, they’re actually 19 th Century.
If you look at someone like Elton John for example, when he signed his first publishing deal he was a tea boy working in a music publishing company and he was so delighted to have a music publishing deal that he signed it without particularly realising what he was signing because it gave him a chance to stop being a tea boy and start being a songwriter.
Now the Elton John litigation in the UK is one of the seminal pieces of litigation that relates to a right of an author or a composer. I think that this is the problem with CC ? you can’t rub out all of that history, it’s not a human right to copy something. Under copyright law you can’t just copy somebody else’s work.
The danger with CC is that it’s trying to undo probably 60 years of litigation, and for that reason it will fall foul because it is not fair to take somebody’s work for life of copyright, without them understanding what the ramifications are.
It’s not acceptable to tell them that they can do another arrangement of the same work because that doesn’t work.
PLD In my view Emma has this exactly right when she talks about informed choice. For me, that summarises the whole conversation that we’ve had this evening. There is no issue with CC and it has a role to play Neil is proof of that in the music industry. The issue that we all seem to be coalescing around is that it must be an informed choice.
[From the floor]
I don’t think it even needs to be an informed choice, because as a major music publisher, we actually do give creative control on every issue to our writers. I’ve been at Warner Chappell for 12 years and I can’t remember the last publishing deal that we signed where there was not a writer approval over exploitation. That is standard now in the publishing industry.
It’s not about saying, ?you decide to have access to exploitation or not’. You shouldn’t be giving those choices; you shouldn’t be putting people in a position where they have to seek legal advice to know whether or not to tick the box. You should be asking for basic limitations.
PLD Let’s be clear about one thing. CC doesn’t ask for any rights, no rights pass to CC at any time. CC provides the tool by which the creator or the rights owner can release rights to the consumer of that material, so CC is not involved in that rights transfer at all. It simply provides, if you like, a boilerplate that allows people to communicate the rights that they want to release to the consumer. Just to be clear, we do not play a role in terms of taking any rights at all.
NL A writer should be free to use a CC license that is going to strengthen and clarify their copyright; I see some furrowed brows, but yes, it will strengthen your copyright. A writer has that choice, as much as they have a choice to hire a lawyer to sign with Warner Chappell, and for said lawyer to have a 30-minute discussion with the artist explaining what the 100 page document says – well maybe more than 30 minutes to explain what the artist is signing over! With CC nobody is signing anything to them, you are telling the user what is allowed, and that is in our case, non-commercial distribution. I don’t understand why we keep gong back to this point.
[Chris Green – Chairman, BACS]
I want to make a rather different point. I support what has been said about legal transparency, and the need for clear advice to be given to anybody before they sign up to anything.
My worry partly stems from the fact that this movement emanates from The States, who are not, in this country (or indeed the rest of Europe) renowned for being great protectors of copyright. We live in an age in which all sorts of ways, copyright is being undermined, or it’s being threatened, and it is absolutely essential at this stage that anybody who launches any site, or any organisation at all who cares about those who create, whether they are the composers or the performers.
Anyone who is concerned about the survival of the creative community for the long-term benefit of the whole of our society will take serious responsibility to educate the public who visit their sites. If you fail to do that, all you will do if you are not careful is contribute to the general view that this is all free, that it’s available to everybody all over the world, and that you won’t have to pay for it.
That may well be your intention, but I don’t believe for a moment that it is. I think there is a real danger that this could contribute to the undermining of copyright, unless you are prepared, with us, other creators and other creative areas to take a stand on copyright, its importance and what it contributes to our society.
DT I think that CC has actually done a huge amount to communicate in the most simple terms imaginable, not only general concepts about copyright ? because having these basic narrowed-down options for the elements of copyright is a huge educational step and I would argue that lawyers might find this threatening to their role. In some quarters there has been evidence that this is the case.
It’s a very direct communicative tool, and I think that working together with people like the creative archive and some of the other projects has helped make the process transparent, and tell the potential users of content the terms under which they do so. It’s an essential step, and I think CC has done a huge amount of work in that respect.
I’d like to make a specific UK point, because I run the UK section of CC international. We will be launching a UK website soon, which will have specific UK information about CC including an FAQ, which will supplement the general information that people have on the international site, and that is somewhere where we are happy to have some input.
That will be looked at by our team, and I’m sure we can work constructively, so do get in contact with me and or Paula about specific things that you think could be included, and they will definitely be considered because there have been a lot of really valid points made this evening.
[From the floor]
You could draw an analogy with television. You have public television which is free and premium television which is not, but within that space you have boundaries. You have limited distribution, and public television is inferior to premium television, I’m not talking about the BBC because that’s paid-for in a different way.
If you apply that to CC where you are creating the same thing in the digital environment there are no boundaries, so I feel there is major potential to damage the whole music industry because there are so many creative artists out there that are very good at what they do. They’ve been doing it for ten years and they haven’t had a break yet. They have the potential through CC to put their work out there and knowingly or not, what they are doing is creating an enormous pool of great music. A profit making company that uses music can then say, ?if I can get it for free, why pay for it?’
NL I think you’re right, I think there is a great danger of creativity being stifled by, not so much copyright laws, but the companies that are lobbying for the strengthening of copyright right now. They are preventing new forms of art from emerging, like Andy Warhol using images of Elvis and Marilyn. Did anyone check all of this with them? I don’t think so. That sort of thing in the music industry cannot exist unless a creator can tell another creato and the public exactly what is and isn’t allowed. They would have to find out who the publisher is, then speak to the right person, and after all, that the answer is generally no.
Under a non-commercial license someone making a television commercial would be allowed to download an MP3, check it out, use that with their images and circulate it round the office for free. Then they can decide whether that’s the right song for the commercial. Then at that point, under the CC non-commercial license, they have to contact me and I can check with the artist whether it’s acceptable for their music to appear in that commercial. That is all facilitated by the CC license.
[Jim Clements ? CC artist]
I would like to speak as an artist; a lot of people have been speaking on my behalf this evening. I’m on Fading Ways and I have a CC license. I have to say that the information question that’s come up this evening is an incredibly important one. I do think that everybody should be fully informed of what they are getting into, I think CC should make an effort to insure that people understand what they are doing. Every criticism levelled at CC, can just as easily be levelled at any music industry person.
For myself I have the option, and it’s done me wonders because I’m not getting played on the radio or on MTV ? it’s very difficult to break into that as a new artist. I’ve put out my record, and lots of people have heard it who never would have heard it because they can download it from the Internet or share it with their friends. As a result of this I’ve sold a hell of a lot more records than I would have if nobody could have heard it.
Now as far as the irrevocable license goes with this record I can’t take it back. That’s logical; the record is out there with a CC label on the back, that’s not going to change in a year’s time. The thing is, I can build up a following with this, get people out to my shows, and then the next record that I put out, can decide if I wish, which I won’t, to not put that out under a CC license.
The thing with the license that I’ve got is that people are going to download my record. I know there are a lot of industry people fighting this, but it’s like fighting the waves, you are not going to stop downloading. Accepting this might be a bad thing, I don’t think it is, but it can’t be stopped, so what are we going to do?
We are going to harness this thing that’s happening in the way that is most beneficial to us and as result of that, sell records. I’m not going to sell any less records, people are going to burn it anyway. All CC is, is an olive branch for those people, it says ?I can’t stop you from doing it, but if you do then please give me something back ? buy the next one, or come and see my show?.
This approach has done wonders for lots of bands. Wilco, my favourite band, streamed their record for a full year from their website because they lost their publishing deal. As a result they sold three times as many records as they had ever sold before; they’re selling out shows all across the country and they also have a website where people who did download it but don’t want to buy it can then log onto the website and donate money. They’ve managed to raise around $300,000 just that way. I’m not arguing about whether downloading is good or bad, it’s a fact. How am I going to use it to best help me? That’s what CC allows me to do.
FN You spoke very well and very intelligently, and I would like to come back to you on your last point as a performer who enjoyed the years spent travelling the world and making records with very talented people. What we are missing tonight is a technological issue.
At the moment, but only for a limited period of time, we (the music industry, and the same applies to movies as well) are still selling things in physical format. I would bet that in ten years time, you will not be selling physical formats. I have two young children aged six and nine, and they feel they no longer have any need to own something that sits on the shelf and is physical.
That is the most fundamental issue ? when we’ve lost the physical format, and the digital has taken over entirely 100%. Let’s assume that happens in ten years time from now. Once your music is up there it is up there for good, and you will not get paid by anybody.
If we had the technology that let one person not ring-fence their work at all because they don’t want to, but the person next to them could ring fence theirs so that nobody could use it, we wouldn’t be having this debate. If those technological measures existed today CC would become entirely irrelevant, we would not have to debate these learned issues and we would have the freedom either to permit or prohibit, and it is an individual right.
CC has no control over what goes on the Internet, and I agree with you that in ten years time physical product might disappear entirely, but I don’t think that will stop people from buying it, look at iTunes. People will continue to buy music, it’s the easiest safest way to do it, it’s a way you can give back to the artist and it’s not something that is going to disappear. CC has no bearing on this at all. All CC does is stop more people from getting sued.
[From the floor]
I work at EMI and I have looked into CC and I have to say that if it wasn’t for the digital age this problem would not exist because how else could you freely interact with other people and swap things. The whole point of this, and especially for the business model I came across, is that you are building up communities, which is how you get exposure – that’s the way that marketing works. Increasingly, if you don’t have viral marketing tools, you have no access to people.
My only concern is that there needs to be someone who heads the community. This whole discussion has been focused on the artist, not the person controlling the community. Will CC do anything to regulate them and make sure that no one will get ripped-off?
NL I would like to see PRS and PPL and other PROs around the world ? and I hope that they will after I talk to Fran next week over dinner ? taking a leadership role in that area and enforcing CC licenses as fiercely as copyright because they depend on copyright. If the existing music business institution does not do this, we will set up a new PRO that will enforce it totally independent of CC.
The point is that anyone who can be protected under copyright can only be protected if they can afford a lawyer. Otherwise you cannot be protected under copyright ? it’s a myth.
KH When people start getting prosecuted under CC licenses will the shine go off the whole CC idea? At the moment it strikes me that the attraction of CC, and it’s been said several times tonight, is that it stops people getting sued. When people actually do start getting sued under the CC license will it then take the gloss off it?
EP CC becoming a pool of content accessible for free ? that would take the gloss off it. Lessig’s beef was squaring up to the corporations ? Microsoft, Disney and the like.
PLD I disagree that CC is there to stop people getting sued. It’s there to help communicate with consumers of your creative products how you want them to be able to consume that product. The hope is that doing that will increase the clarity so people will feel they can engage with that material. At the moment we happen to be in an environment and at a time where the threat of being sued is getting a lot of publicity and causing a lot of concern. I’m hoping that that is going to go away.
I think the point about when somebody does come into conflict with CC only has a comparison at the moment with the open software and free software movements, and the shine doesn’t seem to have disappeared there.
[From the floor]
Neil says that it’s often hard to clear rights so we need CC licenses. I think that rights need to be cleared, and is the fact that they are hard to clear justification for placing no limits on them. Isn’t that just a users’ charter?
[From the floor]
The idea that CC licensed music is a resource that can be used for free is worrying. If profit making companies start using CC music as a way to cut costs, even only to a small degree, I think that will take away some of the gloss that CC currently has; and it really isn’t hard to see it happening.
There has to be a clear distinction between commercial and non-commercial use.
KH There is something in the industry known as ?difficult second album syndrome?. A lot of bands find it very hard to write a follow up to their first album, and what they release can often be seen as below standard. Because of this I am really worried about bands giving away the rights to their first album.
EP What I would like to know is why the CC license has to be irrevocable. Is there a reason why the rights can’t come back to the creator after a few years? Can’t the artist reclaim copyright after a time?
PLD Once the work is out there, it’s out there. There isn’t really a way to get it back; but you could remove the primary source, which might have some effect.
(Notes compiled by J North, & edited by J Robinson, Musictank, June 2005).