online music com - APRA

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CREATIVE COMMONS Scot Morris, Director International Relations, APRA|AMCOS & Kirti Jacobs, Communications, APRA|AMCOS Surely, no-one in the world has felt the impact of the internet more than songwriters. From creation and distribution, to connection with fans – there’s been a fast and furious explosion of opportunity and risk which has worked for some (think The Arctic Monkeys, Sick Puppies, Radiohead, The Grateful Dead), burned others and left many more wondering in its wake. Collecting societies the world over, like APRA|AMCOS, have been dealing with the issues of online music use since the early days. Keen to assert the right of their music creator members to be paid for the use of their works in emerging digital media, they’ve focused on developing and implementing new digital licences that enable music use online, track and monitor that use, secure payment and seek to protect the integrity of the works. Creative Commons stepped into this space a few years ago, claiming to offer an “alternative” way of licensing. In this article we explore some of the differences between the notion of licensing by collecting societies like APRA|AMCOS and those offered by Creative Commons – and what these differences mean for music creators. Some background on Creative Commons The Creative Commons (CC) movement began a few years ago in the US when Stanford University Constitutional Law Professor, Laurence Lessig, acted in a case challenging the US provisions extending the duration of copyright. In defeat, he developed a set of standard online “licences” that encouraged creators to give away certain copyright rights to the world at large. These “licences” were based on principles of “open software licensing”, but they applied to other materials such as music, art and film. Academics in other jurisdictions have sought to adapt these licences to local laws and conditions – this is known as the iCommons project. Is CC an alternative to copyright? No – nor is the movement in favour of abolishing copyright. It claims to be an alternative way of “licensing” the copyright in creative works. However it is not the kind of licensing service typically offered by APRA, where a copyright owner is able to monitor use, negotiate payment and conditions for use. Under a CC Licence, creators give up certain aspects of their hard-won exclusive rights for free, forever. Under copyright law, it is generally the creator’s right to decide if, how and when their works may be copied, adapted, distributed, performed, broadcast or made available to the public. The creator is also entitled to negotiate a payment for this use. Copyright recognises that there is a commercial value to creative works and grants the creator the exclusive right to exploit those works and share in the profits third parties make from the works. Creators, who apply a CC “licence” to their work, give up control over some of these rights and offer all people free and legal access to their works so they can be used for “noncommercial” and sometimes “commercial” purposes. These terms are not defined in the “licences” and are at the crux of the difficulties and confusion created in the market place by CC “licences”. Once a CC “licence” is applied to your work, it cannot be revoked. CC does not monitor or control how your works may be used, adapted, distributed, copied or performed. How does a Creative Commons Licence work? Individual creators can attach one of various types of CC “licence” to their work – licences are downloaded from the CC website. It is estimated there are currently over 200 different versions of CC licences in circulation around the world. The majority of musicians who use CC licences seek to retain their “commercial rights”. However, while there are CC licences purporting to reserve commercial rights, CC doesn’t assist with this nor explains how such rights can be administered in practice. Can I use both APRA and CC licences? You may not be able to apply a CC licence to your work if you have a pre-existing agreement with a music publisher or a collecting society. THE POSSIBLE PERILS OF ONLINE Richard Mallett, Director Recordings & Online, APRA|AMCOS APR AP MAY 2008 10 It won’t be news to anyone reading this article that the internet has opened up the number of opportunities available to songwriters for the dissemination of music. However, what appears to be news is the number of marketing and other companies who have cottoned onto this concept and are entering this space to ‘help’ to promote artists. Submitting your song to a competition may get your music heard by a wider audience or it may not, but it is very important that you read the terms and conditions that you are asked to sign. You need to make sure you are not giving away rights that you have already assigned, or that you don’t want to give away. Just as you would seek legal advice when signing a recording or publishing contract – it may pay you to do the same before signing or agreeing to the terms and conditions for an online music competition. APRA isn’t against such competitions; we see that they may present benefits. Indeed we are currently in discussions with a number of parties regarding the appropriate wording for their contracts and to allow APRA members, who want to submit works to a competition, to be able to do so without breaching their pre-assigned APRA rights. Ideally it would be great to have the operators come to us first, so we can work with them prior to launch. In the meantime, here are a few things to look out for.
For example, APRA members generally cannot apply CC licenses to their works because when they become members of APRA, they assign all the performing and communication rights in their musical works to APRA. This is the case for nearly all collecting societies around the world. However, APRA has long recognised the need for members to have flexibility and choice when it comes to the licensing of their works. To that end, we have for some time now, offered members the choice of flexible licence back and opt-out arrangements that enable members to selflicence certain works if that better suits their needs. In particular they can licence the use of their own works on their websites. The international collecting society community, through CISAC, is in discussions with CC to see whether CC licences can be made compatible with society membership. Some societies have initiated trials to this effect. APRA is also looking at ways we can review our opt-out and licence back to accommodate some of our members desires to engage in open licensing for noncommercial purposes, without undermining the collective. Stay tuned for updates. CREATIVE COMMONS You sign away rights in that work, forever, for the whole world, for free. You cannot later change your mind. CC does not negotiate payment for the use of your work – it is up to you to contact individual users across the world to negotiate and secure payment. It is up to you to monitor and enforce the use of your work. If someone uses your work in a way that is not authorised by the Creative Commons Licence, you will have to contact the person responsible or seek legal help to enforce the terms of the licence. This can be difficult in practice, especially online and overseas. May limit your chance of securing a commercial deal for that work – if it is available for free already, commercial music users may be reluctant to pay for the right to use it. APRA|AMCOS You assign all the performing and communication rights in your musical works to APRA, who then negotiates licences for the use of your music on your behalf. This is the case for nearly all collecting societies around the world. APRA members can change their minds. Ask about our opt-out and licence-back schemes. APRA negotiates with users on your behalf and collects royalties for the use of your work. These royalties, less our administration expenses are distributed back to our members. APRA takes on responsibility for monitoring and enforcing the use of your work. The assignment of rights enables us to take legal action on your behalf against users making money out of your work without a proper license. APRA represents over 50,000 Australasian songwriters, composers and music publishers and, through our agreements with similar societies overseas, the vast majority of music creators worldwide. This means we can promote the repertoire of our members with confidence and negotiate the best possible rates with music users. When considering any licensing scheme, it’s very important to make sure you get informed, independent legal advice. MUSIC COMPETITIONS Waiving all payments In general, these competitions will generate advertising or other revenue for the operator either directly from the use of your music, or indirectly through association and trade. It follows that a proper value should be ascribed to the exercise of your music. Granting worldwide licences The terms of any grant (including any purported assignment of copyright) must be subject to any prior rights assigned to APRA (and your publisher, if relevant). Also you should beware about clauses that assign your rights outright to the competition. Use outside the competition & sub-licences Watch out for terms that appear to allow the operator of the competition to sub-licence songs to other websites without payment back to the songwriter. We have seen a local competition whose terms and conditions would permit them to authorise the broadcast of the song on radio and television and release it on CD – all without any payment of royalties to you, the composer of the work. Third parties Be careful about clauses that allow the person running the competition to assign the rights you have given them to third parties. This is a sure fire recipe for disaster as the potential is there for you to lose complete control over the use of your work. If it turns up in an advertisement for dog food, there may be very little you can do about it. APR AP MAY 2008 11
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online music com - APRA

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