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September 01, 2007

Creative Commons Licensing

By Joan McGivern, ASCAP General Counsel, SVP

10 Things Every Music Creator Should Know About Creative Commons Licensing



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If you just bought a new car, would you trust a complete stranger with the keys? More likely you would double click the alarm before leaving it parked in public.

Songwriters and composers likewise have a big investment to protect. Creating and recording a new composition can often entail a huge commitment of time, effort and finances. Copyright laws are in place to help protect creators and reward their creativity. If you are not careful about how you choose to license your compositions, however, you risk leaving your hard work open for a joy ride.

While the traditional models of doing business within the music industry are rapidly evolving, many creators are faced with uncertainty about how best to promote, distribute and license their music. There are some entities that promote the idea that creators benefit from voluntarily diminishing their copyright protection. They claim that songwriters and artists should give up all or some of their rights in the interest of a wider dissemination of their works, or so that others can incorporate or use these works in different ways.

A major proponent of this concept is the non-profit organization Creative Commons. As explained on its Web site, "Creative Commons provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry." Through Creative Commons' licenses, or "CC licenses," copyright holders reduce their rights from "All Rights Reserved" to "Some Rights Reserved." Essentially, copyright owners release some or all of their rights; in doing so, copyright owners may be unwittingly undermining their own ability to control or be compensated for their works.

Alternative systems for licensing content may be effective for some scientists and academics, as well as others whose primary aim is the non-profit exchange of ideas and information.

However, songwriters, lyricists or composers, who depend on their art for their livelihood, may face an entirely different set of considerations. It is critically important to get beyond the hype and "hipness" of digital licensing alternatives, and to look dispassionately at the choices on the table.

Among the "copyright alternatives," Creative Commons have styled their licenses as being cool and easy to use. To submit a work to be governed under a CC license, creators click on symbols and icons for attribution, "share alike" or noncommercial uses, and then upload a digital copy of their work.

While the process appears simple, the meaning of these symbols can be misleading to a creator. Even if he or she takes the time to access what Creative Commons calls the "human readable" terms and conditions of the license, will that creator fully understand its terms?

Before committing to a CC license, songwriters or other music creators should consider these 10 important legal issues:



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If a creator gives up control over how their music is used, a song intended to reflect one view could end up promoting a view on the opposite end of the spectrum.

1. Irrevocability – All the CC licenses are "irrevocable" - meaning they cannot be changed or revoked; once you place a work under a CC license, the meta-data travels with the digital version of your work - forever. This provision conflicts with a creator's absolute right under the U.S. Copyright Act to end any license or contract regarding a creator's work after 35 years (generally speaking), no matter what the license or contract says. This right of termination can be very valuable, particularly if a work "breaks through," but there is no apparent way to exercise your termination rights under a CC license.

2. Waiving Royalties – Most CC licenses ask creators to waive the ability to collect royalties - including from public performance rights. Such a waiver illustrates that these licenses are for people who do not make a living primarily from their creative work. For example, academics and scientists enjoy salaried positions, with health care and often with university or subsidized housing. Independent songwriters and composers have no such luxuries.

3. Confusions Over "Noncommercial Use" – Many CC licenses are for "noncommercial use." While this would seem to preclude a creator's work from being unfairly exploited for monetary gain, a problem immediately arises: there is no definition of "noncommercial use" under the U.S. Copyright Act. Though there are a few narrow exemptions for "noncommercial performances," all other uses of creative works should be licensed, either by the creator or otherwise licensed by reason of a compulsory license. Even "non-commercial" PBS and NPR pay license fees for their right to perform music in their broadcasts and on their websites. To further complicate matters, CC licenses define peer-to-peer file sharing as "noncommercial" - a position with which the United States Supreme Court has disagreed and is otherwise at odds with U.S. law.

4. No Support for Rights Enforcement – There is no support for rights enforcement under the Creative Commons system. There is no larger organization, like an ASCAP, to enforce the scope of creators' rights under these licenses. Creators are on their own when, for example, the boundaries of a non-commercial CC license are breached, and the creator finds out the work is being exploited for compensation by another. Creators who have not obtained a U.S. Copyright Registration for a CC licensed work, will also find out that they have no standing to even sue in a U.S. Court, and thus, are left with few realistic options for recourse.

5. Potential Global Conflicts – CC licenses are global, which can complicate a creator's ability to enforce his or her rights when those rights are violated. Normally a work's creator can control the geographic territory in which a work is used - or appoint representatives to do so. For example, ASCAP relies on a global network of Performing Rights Organizations to license and collect royalties for performances of ASCAP members' works in other countries. The global nature of the Creative Commons system can interfere with the support and income offered by these types of existing rights infrastructures.

6. Non-Exclusivity – CC licenses are "nonexclusive," which means that the work's creator will have no future ability to enter into exclusive deals for a work licensed under the Creative Commons system. In the entertainment industry, producers may want exclusive rights to use, for example, a musical work as the signature theme for a television show or an advertisement. Such an opportunity could be lost to the creator of a work licensed under a CC license.

7. The Issue of Co-Creators – CC licenses can cause complications for works created by more than one individual. Under the U.S. Copyright Act, unless they have a written agreement otherwise, each "co-creator" has the right to license the work on a non-exclusive basis without the consent of their co-creator. Each co-creator's responsibility is to ensure that the other co-creator receives a share of profits. But what happens when a co-creator places a work under a CC license? If a license eliminates the possibility for payment on that work, and extends both globally and forever, the other co-creator is essentially out of luck.

8. Lack of Distinction Between Types of Uses – CC licenses do not distinguish between types of uses. A music creator's submission of a work to a CC license means that he or she allows the work to be performed, copied, distributed or even synchronized to an audiovisual work. This can lead not only to lost financial opportunity, but also a conflict of ideology. If a creator gives up control over the use of his or her song, that song could end up being synchronized with an audio-visual work that promotes a point of view offensive to the creator and the creator will be without any remedy.

9. Prohibition of DRM – CC licenses prohibit use of digital rights management (DRM). DRM is a core element in today's digital music arena and a component of most tracks distributed by major labels or sold through top online venues. If a song is successful, distribution channels using DRM will not be an option for a creator who has submitted their work to a CC license.

10. No "Authentication" When a Work Is Submitted – Even if a creator doesn't want to submit his or her work to a CC license, someone else can. How? Because there is no "authentication" as to whether the true owner of a piece of creative content is the one applying for the CC license. Any person can go to the Creative Commons website with a digital song file or photograph, follow the instructions online and claim it as his or her own and release your work, without your consent, to the "commons."

Under U.S. Copyright Law, creators already have the right to waive their rights, give their works away for free or permit the use of their music for sampling or mash-ups, without necessarily giving up their ownership rights. They also have the right to say "no" to licensing their works for uses with which they disagree, on creative or other grounds.

Just because the music industry is changing, doesn't mean songwriters and composers have to give up control of their rights.

Simply put, before making a choice to license away any right irrevocably, music creators should fully understand the terms to which they are agreeing and the implications down the line.

You may choose to give up some or all of your rights, if you want to, but understand the risks.