Regarding Creative Commons music licensing

We were discussing with my beloved JBQ during Sunday’s lunch about how can Creative Commons-licensed (CC) music can be played on the radio and eventually become a “more indie than indie” popcult. We both agreed that in USA, Satellite Radio would be a great idea to have a 1-hour show per day/week to play such CC material. You see, people who pay for Satellite Radio are people who are more receptive into new ideas and/or alternative music. More over, Satellite Radio can give you nationwide access, while FM radio usually can’t (especially the kinds of stations that would be receptive to such audio material).

And here is where the problem lies. Licensing CC music to play on commercial radio seems to be pretty impossible to do so in any practical way. There are a gazillion CC artists out there, but the producer of a radio show today must hunt them one by one and email them and ask for a licensing agreement (which he is possibly not going to get because such freelance artists don’t have the legal means to create invoices and such). And even for CC labels like Magnatune, licensing music for the radio is a pain in the rear. Instead of offering licensing of many of their songs (or just their hits), Magnatune can only license individual songs of an album, which means that it costs $270 per song. They don’t have a “bulk” radio license scheme, not even a special radio license that licenses some hits for free just so it can hook up the listeners to them. If you have a 1-hour show, the current rate will cost you about $3000 to just license the music. And that’s without counting the satellite airtime, DJ, technician fees. Overall, it might cost about $5000 per show to produce such a CC-based 1-hour show per week. This is actually a pretty high price per show considering the “non-evil” nature of CC “Free music”.

This is where the CC consortium and/or CC labels must join-in, and create a legal/invoice department that makes it easy for all CC artists to license their music (for versions of the license that is free only for non-commercial playback, that is). There must exist a common database library about such music. Different rates can of course be set for different labels (e.g. Magnatune can have its own rates, but the important thing is to submit its music to the common library so the radio producers can easily find that music). It must become easy to be able to license such material. The radio producer must NOT hunt down manually these artists. Instead, there should be a centralized place where a quote is given for either individual songs, or individual albums, or the whole library of a label or artist — and at logical rates. A CC licensing broker if you like…

Sure, it might even sound like “creating the equivelant of RIAA” for CC music, but you know, RIAA was created in the first place because there was a business and market need for it. Having a non-evil equivelant of RIAA is not a bad idea. Just like with nuclear technology, it’s how you use it.

Right now, it’s almost impossible to market CC music to normal, non-geek people. Radio would have been the best way to do that, but the current disorganization of the whole CC idea kills it down IMHO. Until the CreativeCommons people offer a centralized access point to their music, such music will never take off with the general public because the forces that bring it to the public just won’t bother. It doesn’t worth it from their business point of view.

Update: If I was a CC label, I would offer three licensing schemes, specifically for radio *shows*:
1. Completely free airing of the label’s music as long as the label, artist, song and album is mentioned prior or after the airing. I would keep this up until CC music becomes more well known (and requested), and then I would start charge normally.
2. $50 per song for partial mentioning of a song’s credits (e.g. artist name and song name).
3. $260 (current price) for no mentioning.
There would also be a “bulk” licensing, radio station-specific, for all songs of that label.
Radio is a special case in the licensing arena. It’s a “tool” where labels can get their products (hits) known. Major labels sometimes even pay radio stations to air specific new hits, but as CC labels don’t have the budget to do that, a more relaxed licensing scheme is required on their part. CC labels & artists: Use the radio for your [future] benefit, don’t drive it away with high licensing prices!

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Luis wrote on September 4th, 2006 at 1:35 AM PST:

Since I was unsure about the prices, I did some research. In Spain, for a radio station that plays music more than 70% of the time in a city of over 1 million inhabitants, they should pay 5% of their income, with a minimum of €500/month.

A radio that plays music 80% of the time will play around 8500 songs per month, wich means that if their income is low (less than €10.000/month), they should pay those €500, which means around €0.06 per song. Once their income grows it might be more than that, but it will hardly get to €1.


This is the admin speaking...
Eugenia wrote on September 4th, 2006 at 7:35 AM PST:

Memson, you have completely lost the point.

Yes, most CC artists would BEG to have their songs on the radio. Most wouldn’t ask for money, that’s true. But the thing is, NO professional radio producer, EVER would decide to air CC music that it’s free only for non-commercial purposes and then just sit tight and await to hear from the artists if they want some money or not. This is not how it works on professional radio. Either the producer has to license music to air it (even if it’s just a paper that says that he is free to play whatever he wants without a charge), or they won’t air it at all. They need to know beforehand!

And that was my point of my blog post. Producers need a way to be in the clear before they play such music. And from all the CC music around, only Magnatune has clear licensing rules and prices, it’s just that they are too expensive. So no matter what, CC music as a whole, loses from the situation.


John Buckman wrote on September 4th, 2006 at 9:34 AM PST:

On Magnatune, we do have a no-cost commercial-use license for commercial podcasters, we’ve just never had to deal with the issue you’re discussing, because ASCAP/BMI collect blanket fees from commercial radio, who are then free to play whatever they want (CC or major label music).

I was under the impression that satellite radio was governed by the same ASCAP/BMI fee structures, and because they pay blanket fees, they don’t get an discount by playing CC music. That’s why we don’t offer a radio license — no-one seems to need one.


memson wrote on September 4th, 2006 at 9:46 AM PST:

Okay, section 4 “Restrictions”, part d subsections i and ii:

i) Performance Royalties Under Blanket Licenses. Licensor reserves the exclusive right to collect, whether individually or via a performance rights society (e.g. ASCAP, BMI, SESAC), 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.

ii) Mechanical Rights and Statutory Royalties. Licensor reserves the exclusive right to collect, whether individually or via a music rights agency or designated agent (e.g. Harry Fox Agency), royalties for any phonorecord You create from the Work (”cover version”) and distribute, subject to the compulsory license created by 17 USC Section 115 of the US Copyright Act (or the equivalent in other jurisdictions), if Your distribution of such cover version is primarily intended for or directed toward commercial advantage or private monetary compensation.

ie. Thet *can* collect royalties, but they don’t *have* to collect them. There is no *obligation* to do so.

For a good example of this:

http://folklore.org
http://www.macfolkloreradio.com

The work of Floklore.com is also avaliable as an O’Reilly book called “Revolution in the Valley.” But, the second site is nothing directly to do with Andy’s original site. They guy just enjoyed the stories so much that he decided to record them.

This is what *I* get from the working of the CC license.


This is the admin speaking...
Eugenia wrote on September 4th, 2006 at 9:47 AM PST:

>who are then free to play whatever they want (CC or major label music)

Are we absolutely sure that this fee also covers CC music?
If yes, why not make it more clear on your web site? Instead of having a licensing category called “TV ad or radio ad (or radio production)“, create a new one specifically for Radio (terrestrial, internet, satellite) and say that as long as the normal ASCAP/BMI fees are paid, the DJs are free to play your music too. Right now, it is only clear that you charge $260 per song…


Luis wrote on September 4th, 2006 at 11:21 AM PST:

I can’t say for sure in the USA, but in Spain it’s been made clear (by at least two lawsuits I’ve heard of) that CC music is out of the SGAE control and fees (the SGAE must be the equivalent to this ASCAP/BMI you mention). So a radio can’t play CC music that doesn’t allow non-commercial use just because they pay the blanket fees to the SGAE. They need permission from the owner of that music (which is a big problem, as Eugenia said, because the only way to get it is finding that owner and get to an indvidual agreement with him/her).

If Magnatune is the owner of its music under a CC license, they should provide some licensing for radios to be able to play it (and it should be a free to low-cost one similar to the podcast one they have). At least this is true for Spain and probably any other EU country.


John Buckman wrote on September 4th, 2006 at 11:31 AM PST:

If yes, why not make it more clear on your web site? Instead of having a licensing category called “TV ad or radio ad (or radio production)“, create a new one specifically for Radio (terrestrial, internet, satellite) and say that as long as the normal ASCAP/BMI fees are paid, the DJs are free to play your music too. Right now, it is only clear that you charge $260 per song…

That license you’re talking about, covers some definitely non-Cc things, such as:
1) TV advertising
2) Radio advertising
3) A commercial production which integrates the music into its newly created offering. An example, would be a “book reading” show that plays our music during various scenes. The commercial radio world has a great many “content creators” who make (for example) 30 minute shows, and then sell those to radio stations.

To me, that last one is definitely not CC allowed usage. ASCAP/BMI fees do not cover this kind of use, because it’s a “Derivative use” (ie, a new work) and they made money from selling that new work. So, Magnatune charges for that.

However, a “mostly music” show that simply plays CC music, and doesn’t create a new derivative work, and plays it on the air, that’s covered by ASCAP/BMI and that’s why Magnatune doesn’t offer a license for that.

As to the issue of Spain:
but in Spain it’s been made clear (by at least two lawsuits I’ve heard of) that CC music is out of the SGAE control and fees (the SGAE must be the equivalent to this ASCAP/BMI you mention).

My understanding of the Spanish situation is different than yours.

The lawsuits in Spain showed that if a public space played *nothing* but CC music, that they did not have to pay *any* fees to SGAE. A bar in Spain was sued by SGAE for not paying their fees (the bar played on Open Music) and the Bar won.

However, this does not mean that public performance CC music needs per permission of the copyright owner, it means just the opposite – that no permission is required to publicly perform CC music, and if you play nothing but CC music, you don’t even need to pay the local performing rights agency. If you play a mix of CC/non-CC music, you still have to pay the full performing rights rate, since those fees are always flat rates, and not on a sliding scale.

-john


This is the admin speaking...
Eugenia wrote on September 4th, 2006 at 11:46 AM PST:

>that’s covered by ASCAP/BMI and that’s why Magnatune doesn’t offer a license for that.

I am just concerned that this is not clear enough either on your web site or the CC site.


Luis wrote on September 4th, 2006 at 12:00 PM PST:

In the USA to play a song on a radio costs $260??? Are you sure?

It’s crazy. Playing songs on radio benefits both, the radio and the artist (who gets advertising and sells more CD’s and gets more concerts, etc..) So why should radios pay that much? As you said, sometimes it’s even artists who have to pay for their songs to be played.

In Spain radios do pay a small amount for broadcasting music, but I’m not sure it gets to even $1 per song.

And I think CC music should be completely free. It benefits artists who can get famous and then make money with concerts.


memson wrote on September 5th, 2006 at 7:50 AM PST:

> ASCAP/BMI

Has no relevance outside of the US. We have the MCPS/PRS in the UK. My sister works for them; I’ll ask her what the stance in the UK is if you like. Should be interesting.


Alberto Gilardi wrote on September 5th, 2006 at 11:24 AM PST:

Seems to me that you are discussing many different situations.
From what I can understand, Magnatune signs with artists a non-exclusive agreeement that is not a CCPL: this agreement then entitles Magnatune to release submitted artists’ works under CCPL.
This is not the case in most EU countries, where collecting societies (like SGAE) have a sole right to manage the whole repertoire (present and future) of those artists who choose to become members. But artists that are not members of one of them, can still release their works under CCPL (unless there are other legal mandatory limitiations).

According to my interpretation of the Spanish sentence, the lower court of Badajoz stated that users that obtain directly from artists (via CCPL) certain rights on a work, don’t have to pay any fee to any collecting society:

* only if artists weren’t affiliated with any of them at that time

* and there aren’t any third-parties indipendent rights (like statutory/compulsory licenses for performers) involved.

Of course different jurisdictions may have very different laws on this matter.
(Creative Commons official comments on the Spanish sentence can be found here).

My personal opinion is that (at least in EU) Collective Societies should cooperate with Creative Commons to benefit artists, users and their own interests to address licensing problems like the one that you raised.

Unfortunately, if I correctly understood your proposal, your licensing scheme will very likely conflict with actual CCPL (2.5) that requires Attribution (but it would be fine with some CCPL 1.0).


Luis wrote on September 5th, 2006 at 12:32 PM PST:

That lawsuit does mean what you say: that if you play ONLY CC music you don’t have to pay to the SGAE. But it absolutely doesn’t mean that you don’t have to pay to ANYONE. You don’t have to pay to anyone ONLY if the CC license allows you to play that music. But if the CC license is only for non-commercial use and you want to use it in a commercial radio, you do need permission from the owner even if you’re already paying to the SGAE (since the CC music is not covered by the SGAE’s fee).


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