December 31, 2007 · Lessig
ASCAP’s essay, “Common Understanding: 10 Things Every Music Creator Should Know About Creative Commons Licensing” nicely highlights some important considerations that any musician should review before using a CC license. Unfortunately, however, it also continues some common misunderstandings about Creative Commons. I’ve reprinted, and responded, to these in the extended entry below. But before the details, there is one important fact of agreement to keep in view, and one important disagreement:
We certainly agree with ASCAP that “music creators should fully understand the terms to which they are agreeing and the implications down the line.” That applies to CC licenses as much as to a recording contract. And we’re as keen as anyone to make sure that understanding is there.
But it is not the case that CC asserts that “artists should give up all or some of their rights” — if by that ASCAP means either that we believe giving up “all or some of their rights” always benefits an author or artists, or that, benefit notwithstanding, an artist should sacrifice his or her rights for the common good. Neither is correct. We know that sometimes, freer access helps. We provide tools to make it easier for artists to enable freer access. We also believe that when making creative work freely available doesn’t hurt, and sometimes helps, the culture is benefited by choosing freedom rather than licensing lawyers. And finally, we believe that some forms of creative work — e.g., the work of scientists, or governments — should be freely available. But that normative claim is far from the work we do with the authors or artists that ASCAP deals with. Our business with respect to them is not to exhort them to charity. Artists and authors have it bad enough without a bunch of nerdy lawyer-types trying to pile on more guilt.
Now to the end of correcting some misunderstandings, the corrections of what ASCAP has said:
From ASCAP’s “Common Understanding”:
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.
True, sort of. It is one of the most important features (and some believe, bugs) of CC licenses that the offer, once accepted, is irrevocable. That has nothing to do with the “meta-data.” It has everything to do with the license. Some believe (and I’m one of the some) that CC licenses should at least be term limited (so, e.g., you give a CC license for 5 years, or something like that). But the CC board has not been persuaded of the wisdom of that limitation. And ASCAP is right to make this the most prominent feature for its artists to consider about CC licenses.
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.
This, at best, is a confusion. If the right to “terminate transfers” applies to a CC license, then the law trumps the license. There’s no way a license can “conflict with a creator’s absolute right under the U.S. Copyright Act.” (And btw: if you’re interested in terminating a transfer, Creative Commons is building a handy tool to help you do it. Check out our beta here.)
2. Waiving Royalties – Most CC licenses ask creators to waive the ability to collect royalties – including from public performance rights.
This is simply untrue. “Most CC licenses” are “noncommercial.” As the license expressly states:
“… where the Work is a musical composition: Performance Royalties Under Blanket Licenses. Licensor reserves the exclusive right to collect whether individually or, in the event that Licensor is a member of a performance rights society (e.g. ASCAP, BMI, SESAC), via that society, royalties for the public performance or public digital performance (e.g. webcast) of the Work if that performance is primarily intended for or directed toward commercial advantage or private monetary compensation.”
Or put more simply, the license explicitly DOES NOT “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.
Fair enough: Where CC licenses do “waive” royalties, one very good reason to do so is that the creator has already been paid to create the work. CC licenses give the creator the freedom to so say.
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.
Again, this is a confusion. True, there is a difficult line to draw between “commercial” and “noncommercial use.” (Though we’ve just received a $300,000 grant from Mellon to help us do research about attitudes related to that distinction). But the line is not drawn from “the U.S. Copyright Act.” It is defined in the license. Whether or not Congress has defined the term, property law gives property owners (i.e., copyright owners) the right to license their work however they want. The license is simply an expression of that freedom.
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.
Huh? The “United States Supreme Court” has said nothing, and, more importantly, could have nothing to say, about whether a copyright owner is allowed to grant freedoms to users for a particular use, such as p2p file sharing. Again, the freedom to grant freedoms is part of what copyright law gives a copyright owner. This freedom is certainly not “at odds with [at least this provision of] 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.
This is absolutely correct. Creative Commons is not permitted to defend the licenses, without transforming itself into a law firm. As we’ve indicated, we’re working with others to provide legal referrals (pro bono and not) to CC license users who need their rights defended. But we haven’t the freedom or the capacity to provide legal services.
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.
But this doesn’t follow at all. Indeed, one of the most rewarding things that I’ve seen from the CC movement has been the extraordinary community of support that has developed to defend creators when their CC-licensed work has been misused. I’ve written about some examples of this. My favorite recent is the war that has broken out in Columbia about a newspaper’s improper use of a CC licensed photograph. CC didn’t invent copyright infringement. But if your stuff is CC licensed, then (to borrow an EFF slogan), you’ve got a posse.
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.
Huh, again? Every domestic copyright owner seeking to sue in a U.S. court must register his or her work before he can file suit. This has nothing to do with CC licenses.
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.
Copyright law internationally is complicated. National borders, or geographically limited licenses, make it even more complicated. CC licenses don’t add that complexity into the mix. That makes it easier for CC users, and CC licensors. It may well make it harder for collecting rights societies. That’s unfortunate.
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.
This is sort of true, but misleading. CC licenses are non-exclusive for the things you’re licensing. They don’t affect the things you’re not licensing. Thus, if you license noncommercial use, then that is a nonexclusive license. You can have many licenses covering the same ground. But even if the world has the right to noncommercial uses, you still have the right to license commercial rights, exclusively. Again, the CC license doesn’t touch those rights.
Will nonexclusive licensing of noncommercial rights block the ability of a creator to license the work exclusively, commercially? It may. And for this reason, it is a great point to flag, especially for musicians who rely upon royalties for their living. But we’ve seen lots of examples of creators who have been able to license their work (at least noncommercially) under a CC license while maintaining exclusive commercial licensing rights. ccMixter is a site full of these examples. All of the remix contests run on that site include CC licensed music that the artist maintained exclusive commercial rights to. These artists include: DJ Vadim, Salman Ahmad, Vieux Farka Toure, (©urve)™, Christopher Willits, Fort Minor, Crammed Disc, Cibelle, DJ Dolores, Apollo Novem Copyright Criminals, and Lisa Debenedictis.
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.
No, this is not correct. A co-author has the right to license his work however he’d like, so long as the license does not constitute “waste.” If the use of a CC license is arguably beneficial, then it would be permitted. If it is not, then it would not. So if you’re a co-author, you need to make sure that the kind of free licensing you’re offering is not harmful. If it is not harmful, then the CC license is again just one of the ways the law permits the copyright owner to exercise the rights that copyright has granted him or her.
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,
This is an important point to highlight. CC licenses cover all the possible uses of a work. So rather than needing to license the distribution right, the reproduction right, the performance right, etc., you get all those rights (subject to whatever conditions are imposed) in one block. (The key exception is the derivative right, which can be licensed separately.)
This simplification helps in many contexts. But no doubt, it is not appropriate in all contexts. And thus the copyright owner needs to be very careful about whether the freedom s/he is granting is really a freedom s/he wants to grant.
… 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.
Not quite. It is true that if the copyright owner has licensed this derivative use, then s/he can’t stop it. But the entity using the work cannot assert endorsement, and the creator does have the right to forbid attribution back to the creator.
9. Prohibition of DRM – CC licenses prohibit use of digital rights management (DRM).
This is not correct. CC licenses restrict how a licensee (i.e., the person licensing the work from the copyright owner) uses DRM. S/he can’t use DRM in a way that blocks a right granted by the license. But the license does not forbid copyright owners from using DRM. Some think it should. But ASCAP is wrong to say that it does.
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.
And again I say, huh? Have you been reading the newspapers, ASCAP? Only one major label still insists on DRM (Sony). Every other major, and many many independents, have given up DRM long ago.
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.”
This is another confusion. I suspect the confusion comes from something ASCAP wrote before it enumerated its “10 things every music creator should know”: As it wrote:
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.
But CC doesn’t ask, or require, people to “upload a digital copy of their work.” We provide tags people can add to work presented elsewhere that expresses what rights someone has in that work. It is true we don’t require “authentication” before we permit someone to associate a tag with a work. So there’s no technology that would stop me from taking a Madonna song and adding a CC license to it.
Neither, however, is there any technology that stops me from taking a Madonna song and adding a royalty-for-me license to it. What stops this is copyright law. If someone purports to license a work that he has no rights to license, he has violated the law of copyright. The DMCA provides a simple way for the copyright owner to complain about this. And if the work is on the web, that tool requires the website operator to remove the offending work.
We in fact have built the same technology into the tools we provide attach licenses to objects — like an MP3. Our protocols give the licensor the ability to provide an authenticating link-back for the license. If the license proves invalid, a DMCA claim can get the authenticating page taken down. So in this sense, we go one step beyond the standard protocol for digital objects, providing a minimal form of ex post authentication.
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.
I’m not sure this wrap up paragraph was meant to apply to us. We (unlike a record label, for example) don’t require anyone to “giv[e] up their ownership rights.” Indeed, to the contrary, CC’s aim is to give the copyright owner a simple ability to exercise those rights as s/he wants.
Again, the owner needs to understand his rights, and understand how a license intends to modify them. We (always) need to do a better job in making that clear. ASCAP does as well.
ASCAP historically has played a crucially important role in helping artists get paid for their work. Today, the nonexclusive ASCAP agreement is a model for collecting rights societies internationally. In my view, we will and should always have collecting rights societies to help authors and artists deal with the burden of collecting royalties where they want royalties to be collected. The only question is how public policy can help make sure these societies are competitive and efficient. The US has done a good job in that respect. Other countries, not so good. But nothing in CC’s mission has anything to do with displacing the proper functioning of efficient and well run collecting rights organizations. Were I to write one of these top ten list of “common understandings,” that would be at the very top.