Contents

Introduction
Aims of Campaign
Action Ideas
Initial Research Needed
To Do List
Timeline of Collecting Society Responses
Other EU Countries with Collecting Society Problems
Links
1. Collecting Societies
2. Other Links

Collecting Societies Campaign

Introduction

1.1 What are Collecting Societies?

When a copyrighted recording is played on the radio, on TV, or used in films, the copyright holder is owed a statutory royalty for the use of their work. Collecting societies make sure that these royalties are collected, and distribute them to their members. They collect licence fees from both commercial and non-commercial use of their clients' works.

The UK Patent Office definition (also see wikipedia entry ) of a Collecting Society is: “In several copyright fields, copyright owners have joined together to form collecting societies. These societies provide licences to use a repertoire of their members' works to potential users. A licence may relate to performing copyright works in public (e.g. by performing music orchestrally at a concert or playing records by means of a juke-box), copying them (e.g. by making multiple photocopies) or including them in broadcasts or other communications to the public; Collective licensing has advantages both for the copyright owners and users; copyright owners are able to license uses that individually they would find very burdensome and users also have considerable administrative savings where a single licence covering many copyright works is available. However, these societies are potentially monopolistic, particularly where they control virtually all of the works in their particular.”

According to the Performing Rights Society (one of many collecting societies) Website:

“The PRS collects licence fees for the public performance and broadcast of musical works.

The MCPS collects and distributes 'mechanical' royalties generated from the recording of music onto many different formats. This income is distributed to their members – writers and publishers of music.”

The traditional reason for joining a collecting society is that it is one of the major ways for a member to make any money from his/her creative works.

However, as things stand, PRS (and other collecting societies) members cannot use Creative Commons licences for their works because PRS insists on having control of all performance rights (including non-commercial usage). Collecting society rules in the UK bar artists from simultaneously publishing works under Creative Commons licences. This means that new members to PRS must also stop using Creative Commons licences for any existing work if they want royalties collected and paid to them.

Collecting Societies are currently paying members who license their work under Creative Commons. There are many theories as to why this is, including that the Collecting Societies don't realise what is and isn't CC-licensed. However payments will probably stop when they realise that these artists are in breach of contract.

This will mean that collecing society members will have to stop using Creative Commons licences for any existing work if they want royalties collected and paid to them.

For artists trying to use Creative Commons licenses to help build a market for their work, or who are using Creative Commons licenses for creative or ethical reasons, this creates a barrier to membership of collecting societies in the UK.

There is no legal or practical reason for collecting societies to prevent their members from using Creative Commons licenses.

In fact, in practice, several societies may already be paying members' works that are already licensed under CC, unbeknownst to them.

1.2.Why are they opposing Creative Commons?

Collecting Societies' primary purpose is to provide income for the industries they represent and the artists they "collect" for. Some uses of Creative Commons licenses to empower musicians potentially threaten the existing industry's business model; the official explanation of incompatibility between the societies and CC licenses is generally divided along two lines:

1. CC licenses are incompatible with writer agreements with societies in that ALL rights are transfered from writer to society when they become a member; they are not therefore allowed exceptions for offering CC licenses to fans or anyone else, as that breaches the society agreement.

2. CC definition of NonCommercial needs to be clearly defined in order for NonCommercial licenses to work; this does NOT mean that societies are more likely to accept ShareAlike as being compatible; the NonCommercial clause is key to making the music industry understand clearly the promotional advantages of CC licenses.

Overall, there seems to be a requirement that change be made from the inside (ie. writer and publisher members wanting their society to accept the inherent compatibility of CC). Also, the society directors and boards must be made to understand that NonCommercial licenses in no way affect the way in which regular non-CC members would continue to carry on their business - it's not so much a matter of changing their business model, as getting them to also accept our business model's functionality, and right to exist in an open and free society.

1.3. Creative Commons UK licences are compatible with Collecting Societies (but not the other way round)

Section 2.4. of the BY-NC CC-EW licence states:

“All rights not expressly granted by the Licensor are hereby reserved, including but not limited to, the exclusive right to collect, whether individually or via a licensing body, such as a collecting society, royalties for any use of the Work.”

Section 2.4 clearly shows that Creative Commons licences are not incompatible with Collecting Societies. Unfortunately, collecting societies refuse to be compatible with Creative Commons licences.

Several societies are working under the assumption that in order to accept CC they would have to invest or overhaul their current databases and the way they conduct business; this is a misunderstanding of what CC NonCommercial licenses allows the user to do.

1.4 Problems for members of Collecting Societies

In joining any collecting society, artists assign the relevant performance and mechanical rights for their works to that agency. Artists therefore no longer have any rights left to assign under Creative Commons licences. Whilst this is done for sound practical reasons, it does mean that the artists have signed away any flexibility in how they can license their copyrighted works.

Members of UK collecting societies could only use CC licences if:

The collecting societies changed the terms of their member agreements, either such that the rights assigned are those relating to commercial usage, or such that the rights are not assigned but instead are non-exclusively licenced. At the moment, collecting societies won't return the right to artists to licence non-profit-making performances of their creations.
They terminated their membership of all collection agencies and lost future royalties on commercial exploitation of all works. However, if an artist terminated all agreements with collecting agencies (and issued works under CC licences) they might subsequently find themselves with requests from advertisers, broadcasters and film-makers to use their works commercially. This would encourage them to re-join the collecting agencies (or assign their rights to a publisher member) so that they could administer commercial licences on their behalf. If an artists were to do this, the collecting society might take legal action against anyone using their works under the terms of the CC licence. ((QUESTION - Does this mean that artists are not be able to join a collection agency (or assign rights to a publisher) if they have ever issued works under a CC licence?

ANSWER: Some small music publishers are willing to work with CC licenses; my sub-publishing deal with SSG Music Publishing in Scandinavia includes a CC clause that I wrote myself - NL; other publishers I have spoken to recognize the excellent promotional potential of CC licenses; and TEOSTO (the Finland society) accepts that CC license may one day become compatible if the NonCommercial definition is clarified and the CC acceptance is requested by their own members, both writers and publishers. Unlike other societies, they are not anti-CC.))

They joined an alternative European wide collecting society that paid artists that use Creative Commons licences (this does not currently exist! - But, could be started up. Several parties have expressed interest: artists, small labels, members of the IMMF, international agents).

PRS (and other collecting societies) should not require members to assign the performance rights of ALL their works. After all, a PRS member might wish to publish a single track from his/her album under a CC licence in the hope that this would create the audience for his/her album. This is simply not appropriate in the digital world which offers so many opportunities for self-publishing.

It doesn't matter whether they sign over all their rights or not: what is required is that they be able to express to the PRS that they wish some works to be CC licensed. That can be done whether the PRS or the artist hold the rights. I'd bet good money that it will be easier to get the PRS to agree to CC licenses whilst signing over all rights that to get them to agree to the administrative nightmare of not signing over all rights. You can see the argument now: 'But what if Mozart had forgotten to sign over the rights to...'- Rob.

From the other side, it is easier to see why the grant to a collecting society should be exhaustive of the repertoire than why it should be exclusive. A PRS licencee such as a hairdresser or restaurant needs a simple, comprehensive, blanket licence without the exclusion of certain songs by certain composers.

One approach would be to clearly illustrate to the societies that:

1. The use of CC NonCommercial licenses in no way whatsoever affects the present commercial exploitations of the works; these remain under firm copyright;

2. The fact that a writer assigns all their rights to the society does NOT prevent them from making their own deals outside the scope of the society (ie. film & TV licenses, music publishing and sub-publishing deals, record deals, etc.) - therefore it flows that regardless of the legal text of the society's writer agreements, certain traditional "conflicts" are already well established as being allowable exceptions - societies do not actively procure individual licenses for each work, that is the job of the publisher and the writer; so it follows that CC licenses fall under the same traditional writer-initiated use of the work, with the society generally remaining silent - business as usual.

Aims of Campaign

Find a European Collecting Society that would be willing to officially acknowledge artists that use Creative Commons licences (and alternative forms of copyright) and collect on behalf of them. If none exist, we could try and convince existing ones to change their policy.

UPDATE: Had a one on one meeting with the associate member's director of TEOSTO in Finland. TEOSTO do not philosophically oppose CC, and recognize its value in the digital realm. However, change must be brought about from the inside (TEOSTO members must put CC on the board's agenda; and enough people must be re-assured that: 1. CC does not fundamentally alter the way in which the society does business; and would cost nothing to allow / accept. 2. The definition of NonCommercial be clearly defined in the license text (both human readable and lawyer readable codes).

OR (as a last resort)

To assist in any way possible the formation of a new EU collecting society, with the help of CC-friendly labels across Europe. This would be transparent and accountable to its members (and the general public).

There are moves afoot to set up a pan-european collecting society. I think that DRM-laden music stores like iTunes would like a level playing field in the EU. We need to find where this pan-european society is being discussed and get CC licensing in from the start. http://www.out-law.com/page-5894 - Rob.

To set the terms of the debate. At the moment the PRS has free reign to accuse CC of wanting to trick young musicians into signing away their rights forever. We need to fight memes with memes here.

MORE NEEDED

Action Ideas

Lobby local and national government to put pressure on Collecting Societies
Lobby collecting societies to put creative commons licences under their mandate (encourage collecting societies to change rules so artists can simultaneously licence works under CC)
- Find out official positions from all EU Collecting Societies and respond.
- Encourage artists of all kinds to contact relevant (to their artistic field) collecting societies.
- Build database of correspondence with collecting societies.
- Organise open consultations with collecting societies about Creative Commons.
Officially respond to negative press about Creative Commons in industry press.

MORE NEEDED

Initial Research Needed

Make a list of every collecting society in Europe (including accession counties) and find (Free Culture friendly) artists who are members of them.
Contact them asking to obtain the following information from their respective collecting society (we will be much more likely to get the information this way). We would write a draft letter that the artists could use which would ask for the following:
- A copy of the writers' agreement
- A copy of the legislation that binds the society
- The society's official position on Creative Commons and similar liberal licences

We would act according to the findings of the research.

To Do List

Recruit people to work on this (2005-10-10 thread a)
Compile list of all FreeCultureGroups in the EU and team up with them on this campaign. This would prevent replicating research and also ease the amount of work we would have to do. For example, musique-libre.org in France. (2005-10-10 thread b)
Compile list of all Collecting Societies in EU. See list so far CollectingSocietiesEuMembership (2005-10-17 thread a)
Write draft CollectingSocietiesDraftInfoLetter (and translate it?) asking for information (2005-10-17 thread b)
Gather contacts for FreeCultureFriendlyArtists in every EU country (2005-10-17 thread c)
Send collecting societies letter out to all EU artists (2005-10-31?)
Find ProBonoLegalAdvice (preferably from a copyright / IP expert). We need to make a list of lawyers who might be willing to help and contact them. (what for?)
Tabulate, analyse and summarise the information collected (when?)
Find funding to employ somebody full or part-time (once the project gets going).

Plus:

Keep this wiki page up to date.

Timeline of Collecting Society Responses

November 2004 – The Future of Collecting Societies Conference. See (insightful) event transcript here

One answer from David Ferguson:

“(DF) When I did my first TV series I got paid for it at the time, and then 9 months later cheque turned up from PRS and I had no idea that I was going to get that money. How can you not as a creator be a member of a collecting society? It is the bedrock for retaining control over the works that we produce. One of the serious threats we are facing at the moment is the Creative Commons.

I had a meeting with the Creative Commons UK team last week, and these people don't understand the issues. They have no idea that a member of PRS automatically assigns their work to PRS and could never sign a Creative Commons licence if they wanted to.

...Is Creative Commons good for people who are not looking to have a mainstream career, but still want to be credited for their work and can't afford to be a member of the PRS? (DF) It's worse than no protection. You give your work away so that anybody can mutilate it, use it for anything they want and you will never get paid and you've given it away forever. It's the most balmy licence that a creator could ever possibly sign. You can give your work away to whoever you want without a Creative Commons licence, but if you do sign one you have lost that piece of work forever. It is the stupidest thing that any music creator could ever do.

Note: David Ferguson, in a one on one meeting, asserted that for all his public abuse of CC he really has no philosophical opposition to it, in that every song writer / IP owner *should* be able to do what they like and allow what they like with their work; he sees the advantages of promotional NC licenses; and told us that his main problem with CC licenses was that Lessig "did not call us" to check compatibility between CC and the music business. Most of his criticism of CC has been referring to the general ShareAlike licenses that allow for commercial uses of the work. This will never fly in the music industry - despite what critics of NC licenses may say, there is an intrinsic difference between the arts world and the software world, in that there is a serious emotional (irrational?) attachment to artistic creations and the control we can exert over them. The best CC can hope for, in the present generation, is to get rights societies to accept NonCommercial licenses as a key step in the right (left!) direction...

February 2005 – Musicweek Article. According to Neil Leyton on the CC-UK list:

In the latest music week dated 05.02.05, an article on p.7. states: "MPA chief executive Sarah Faulder voices concern that young acts could 'give up everything for no money and irrevocably' in their keenness to be heard."

To add insult to injury, on p.26 of the same Musicweek David Ferguson threatens, "A Creative Commons licence is not just for Christmas- it's forever. You and the band will never earn one penny in publishing royalties from your creation"

March 2005 - In the March 2005 issue of M (the MCPS-PRS members music magazine) Emma Pike, Director General of British Music Rights advised that creators be absolutely clear before signing a CC licence as they : "offer no remuneration, run for the entire duration of copyright in their work, apply to the whole world and cannot be revoked". See full article here.

April 2005 – Article in O'Reilly by Becky Hogge.

“Although, during his research, Tsiavos received a warm welcome from many of the U.K.'s copyright revenue collecting societies, themselves keen to modernise practice for the digital age, the music business press in particular have been incredibly skeptical about the value of Creative Commons. Key concerns voiced have been that Creative Commons somehow undermines traditional copyright protection, that through taking part in what is in the U.K. a novel "registration process," creators may unwittingly give away their rights irrevocably, and also, in a wonderfully pitched recursive argument, that signing a CC licence could result in musicians being discounted by a music business hostile to CC. For the time being at least, the idea that, as Tsiavos puts it, "commons are not against markets; they only create new ones" appears to be falling on deaf ears.”

June 2005 - IPPR Creative Britannia Event with Speech by James Purnell (Minister for Creative Industries). See full speech here

And see commentary of event at: http://drn.okfn.org/node/58 & http://drn.okfn.org/node/59

Adam Singer (Chief Executive of the collecting societies MCPS and PRS): conceded open source approach has been valuable (Linux) but then slammed "open source copyright" with the statement "creative commons is chainsaw juggling for the under fives"

and later...

Good follow up later from Matt Locke of BBC who queried the "chainsaw juggling description". In response Adam Singer described Lawrence Lessig as the "Martin Luther of Copyright" and said that the music industry's failure to "burn him so far" showed that it was undecided over the best approach to CC (seemed that he might be trying to be conciliatory and suggest CC had some, limited benefits).

September 2005: There was a panel discussion about collecting societies and CC at the Musicworks convention. Andrés Guadumuz blogged this here

According to Jonathan Mitchell QC on CC-UK list:

The point was there made that collecting society rules in UK effectively debar simultaneous use of CC licences. One possible answer is an EU proposal to allow creators to determine (a) which collecting society to use EU wide and (b) to stipulate what it will collect: see FAQs [here]. These state the individual membership contract will allow the right-holder to define precisely the categories of rights administered. See also http://www.edri.org/issues/governance/eupolicy .

British Music Rights, (whose lawyer claimed at Musicworks that it took him, er, two hours on the internet to find the terms of the CC licence) [complain] "any solution that proposes to introduce competition between societies for users by allowing "forum-shopping" would totally undermine [their position]". Indeed.

Meanwhile there's no movement. The BASC licence David Ferguson talked about is still not publicly available even in draft- all we saw was its logo (which was misspelled). It doesn't however seem that it will be compatible with current collecting society requirements either.”

Links

Collecting Societies

See here for list of collecting societies in the EU and artists who are members of them.